By Julie Pace, David A. Selden and Heidi Nunn-Gilman
After more than 40 years, the Federal Government proposes making a change to OSHA’s inspection procedures under 29 CFR 1903.8, which could drastically impact non-union employers. Currently, the Federal OSHA Walkaround Representative who is authorized to accompany the inspector is limited to an employee of the company or, if the employees are represented by a union, an authorized representative of the union.
A. WHAT IS OSHA’S PROPOSED CHANGE?
The new Federal OSHA proposal would broaden the definition of the Walkaround Representative to allow workers to designate someone who does not work for their employer to represent the workers and accompany the inspector during an OSHA inspection.
The proposed OSHA rule, which is under final review before implementation, would allow multiple persons who claim to represent employees to accompany inspectors, including potentially union organizers from multiple and competing unions, community activists and organizers, and other third-party outsiders.
Arizona has a State-approved OSHA plan administered by Arizona Division of Occupational Safety and Health (ADOSH). ADOSH reviews and generally adopts Federal OSHA rules, but can adopt different rules that are at least as effective as the Federal rules or are able to clarify items, which is what the Arizona Legislature seeks to do with HB 2209. The Amendment does not change current law regarding OSHA designated walkaround representatives but seeks to close the gap on risk issues to companies that the new proposed federal rule failed to address.
B. HOW DOES THE PROPOSED OSHA RULE INCREASE RISK AND LIABILITY TO EMPLOYERS?
Frequently, when long standing precedent is proposed to be materially changed, there can be unintended consequences, as is the case with the new proposed Federal OSHA rule. Generally, the stakeholders, such as businesses in this matter, identify and try to educate and persuade the Government agency to modify its language to close gaps or loopholes that cause harm to companies.
In Arizona, this should be a bi-partisan effort to protect Arizona employers who raised the concerns about the issues with the new federal proposed rule. The Federal rule goes too far without protective guardrails to employers.
The new proposed Federal rule is silent regarding important items such as:
- The number of outsiders who can join an ADOSH inspection;
- Who pays for outsiders injured during an ADOSH inspection (i.e. who carries the workers compensation (WC) insurance for the third-party outsiders and how does WC exclusivity work?);
- How does ADOSH ensure that a Company’s trade secret and proprietary information are protected in the same manner as currently provided in Arizona law if third-parties are permitted under the new proposed rules. ARS 23-408.
- Ensure third-party outsiders are trained in safety before joining OSHA inspection.
- Ensure third-party outsiders have and use Personal Protective Equipment (PPE) at jobsites.
Arizona employers need to be protected regarding the above items. Arizona employers should not have trade secrets jeopardized or be subject to personal injury actions for being compelled to have third parties attending ADOSH inspections.
C. The Rep. Matt Gress HB 2209 Amendment Is A Solution Proposed to Help Protect Arizona Employers, While Preserving the Status Quo For ADOSH Inspections.
Representative Matt Gress has taken the lead and sponsored the HB 2209 Amendment to protect businesses and safety professionals in Arizona during OSHA inspections and preserves the status quo for ADOSH inspections.
Representative Gress worked with the business community to draft and sponsor HB 2209, which amends the specific section of Arizona law (A.R.S. § 23-408) that governs procedures for OSHA inspections by ADOSH. The law would protect business and prevent abuses that can be damaging to Arizona businesses if the federal procedures are changed to open up OSHA inspections to outside persons in workplaces that are not unionized. The specific provisions of the bill would:
1. Preserve the right of a union representative to act as the Walkaround Representative for workplaces where the workers are represented by a union and subject to a collective bargaining agreement.
2. If federal law requires that another person can be present in non-unionized workplaces as the Walkaround Representative, ADOSH would not consent to third-party representative to join the walkaround inspection without the following requirements, including:
a. Only one additional person as an employee representative would be allowed to be present during the OSHA inspection for non-unionized employers. This prevents multiple people showing up to disrupt workplace or cause safety issues. a.
b. To prevent the non-employee Walkaround Representative from being injured and to prevent lawsuits to claim injuries and potentially harass the employer, the non-employee Worker Walkaround Representative present during the ADOSH inspection can be required by the employer to have the following:
i. Appropriate safety training for the worksite.
ii. Personal protective equipment and other safety equipment.
iii. Workers compensation insurance coverage that covers the non-employee Walkaround Representative and identifies the Company as an additional insured (Additional insured coverage helps protect employer if third party has injury during the inspection).
iv. To prevent the non-employee Walkaround Representative from damaging the company by disclosing confidential, proprietary and trade secret information, ADOSH would ensure that the third party enter into written agreement to maintain the confidentiality of the company’s proprietary information. This is necessary because allowing outsiders to accompany OSHA inspectors could open the door to the opportunity for an employee to claim to be represented by a person who has an interest in committing industrial espionage or seek access to information for which disclosure could cause harm to the competitive position of the company from whom the information was obtained. The outsider could not accompany the ADOSH inspector to view and photograph confidential manufacturing process and trade secret information unless a signed confidentiality agreement was in place.
There are provisions in existing law for ADOSH to be required to respect the confidentiality of company’s trade secret information, but those provisions do not apply to third-parties who accompany ADOSH inspectors. This provision is important because OSHA inspections can create access to confidential manufacturing methods, product formulas, personal information and more.
c. Add a definition of “authorized employee representative,” which is currently not defined in Arizona law. The amendment would add a definition, “the agent of a labor organization that has a collective bargaining relationship with the employer that represents the employees who are members of the collective bargaining unit and who are employed at the location to be inspected.” This definition is consistent with current federal law pursuant to 29 CFR 2200.1(g) and preserves the current ADOSH inspection authority regarding union representatives.
D. Federal OSHA Area Director Barnett Responded to the Rep. Gress HB 2209 Amendment
In response to the Gress Amendment, Federal Area OSHA director Zachary Barnett issued a detailed letter addressing items in Rep. Gress Amendment.
E. Rep Gress Response to OSHA Area Director Barnett Letter
Rep. Gress has a detailed response to OSHA Area Director Barnett regarding the HB 2209 Amendment.
To keep up on information from Rep. Gress regarding this issue, please feel free to subscribe to his newsletter at www.mattgress.com/newsletter-signup.
F. Conclusion
With this much dialogue, hopefully good can come of the situation and many Government officials and elected officials in a bi-partisan manner can realize that the current form of the proposed new Federal rule needs modification. Arizona companies should not be subject to new financial risk and loss of trade secret and proprietary information.
The HB 2209 Amendments seeks to supplement existing state law for ADOSH and only apply if the new federal proposed rule goes into effect.
Without the Governor and the Legislature approving the HB 2209 amendment, the current law has no limit on the number of persons that can be designated as the non-employee Walkaround Representative. There would be no provisions to protect a company’s confidential or proprietary information or protect the employer if the Walkaround Representative was injured during the inspection, even through no fault of the Company.
Arizona companies deserve protections. Everyone appreciates the hard work and diligence of all of the elected officials to dive deeper into the details of the proposed new federal law on changing OSHA inspections, recognize the real financial consequences and losses to companies if there are no protections, and work together to achieve a solution that keeps Arizona businesses strong and competitive. Thank you to the Governor and all legislators for taking the time to learn about some of the gaps not addressed in the new proposed federal rule change.