Responding To OSHA’s New Walkaround Standard

Michael Vandervort, Phil Wilson & Mark Friedman.

 Michael Vandervort: [00:00:12]

Hey, everyone. This is Michael Vandervort, and it’s another edition of The Left of Boom Show. We are living in a time of very rapid change in the world of labor relations. And, Phil, I wanted to start out today by talking to you. You’ve been doing this a long time, as have I. Have you ever seen such a crazy environment as what we see right now, and some of the things that we’re having to deal with?

Phil Wilson: [00:00:37]

Well, first, thank you for calling me old.

Michael Vandervort: [00:00:42]

You’re younger than me.

Phil Wilson: [00:00:43]

There’s a lot of gray hair in the beard. Quick answer, no. This is truly an unprecedented time. I’ve been doing this for a long time. And it’s funny, when I first started this in the early 90s, every year there was some revolution in union organizing that was going to happen. I remember very early on, there was this thing called Union Summer where they were going to have like all these young kids, they were going to train them up to organize in workplaces across the country, and it was going to revolutionize organizing.

[00:01:22]

After about ten years of falling for that every single year, I finally was like, there’s not going to ever be a revolution in organizing. And lo and behold, here we are 30 years later and there’s been a revolution in not just organizing, but across the government. The president, of course, famously said he was going to be the most pro-union president ever. And boy, has he delivered on that promise. And it’s really just across government, which is a great segue to our guest, Michael.

Michael Vandervort: [00:02:03]

Exactly. So, to help us break some of this stuff down and have a conversation about what is going on with the NLRB. And I know it’s covered in the press a lot, but it’s great to have Mark Friedman, who’s the vice president of workplace policies at the Chamber of Commerce. Welcome to Left of Boom. How are you doing today, Mark?

Mark Friedman: [00:02:23]

I’m well. How are you guys doing? Notwithstanding the subject of conversation here. Just to pick up on that for a moment, what’s going on right now is so beyond what we’ve seen. It almost makes you long for the days of the Obama administration.

Michael Vandervort: [00:02:45]

It’s funny. I was going to say something along those lines as well.

Mark Friedman: [00:02:48]

Wow!

Michael Vandervort: [00:02:49]

The good old days.

Mark Friedman: [00:02:51]

Good old days of the quaint old Obama administration. Who ever thought we’d be saying that?

Michael Vandervort: [00:02:56]

Yeah. It’s totally true.

Mark Friedman: [00:02:58]

Just a way to put it in context. Anyways, gentlemen, it’s nice to be with you all, and happy to have a conversation today.

Michael Vandervort: [00:03:05]

Yeah. We really appreciate you being here. I wanted to start out by talking about something that’s still developing and actually is supposed to go into effect tomorrow. So, maybe you could start us off with a bit of a briefing about that, which is the OSHA walk-around rule, which I know has a lot of employers scratching their heads about how to respond and deal with that. So, maybe we’ll talk about some of that as well. But can give us what that is and where the status of it is right now?

Mark Friedman: [00:03:34]

Sure. It’s a very timely subject. As you mentioned, it’s set to go into effect on May 31st, which is tomorrow. It was issued on April 1st. Insert joke here. And what it says is, it’s very simple. It’s blissfully short regulation. What it says is that an employee can designate any third party to be their representative during an OSHA walk-around inspection. And to just step back for a moment, the statute says that employees and employers, (and we’ll talk about that in a moment), can have a representative accompany an OSHA inspector.

[00:04:17]

The regulations in OSHA have said for many years that that employee representative shall be an employee of the company. What this regulation does is remove that requirement that it be an employee and just says any third party. And when I say any third party, I mean an employee at a non-union workplace can designate a union representative as their representative for the purposes of a walk-around. Now, it doesn’t stop there.

Phil Wilson: [00:04:48]

Mark, I was going to say, it could be a competitor, it could be the media.

Mark Friedman: [00:04:59]

Yeah. Insert outside agitator here. Truly. I’ve concocted nightmare scenarios and no one’s told me they’re wrong where you could have a union representative, you could have an anti-fossil fuels representative, you could have a plaintiff’s lawyer, you could have possibly a competitor, you name it. And even worse than that, you could have multiple unions. Imagine a workplace where you’ve got more than one union competing for that workplace. You could have more than one union going through. The bottom line is it is up to the employee who they choose for the representative. And the employer is essentially powerless in terms of that choice.

[00:05:45]

Now, the way the regulation is supposed to work. And quite frankly, I think a lot of this still needs to be worked out and figured out as these things go into effect, as these examples come up. The OSHA inspector known as a CSHO, the acronym is CSHO (Compliance, safety, and health officer). The CSHO is supposed to make a determination. And the phrase is good cause has been shown that the third party is reasonably necessary to aid in the inspection. Now, that puts a lot of responsibility on that CSHO. I think one of the dirty little secrets here is that the only people who like this regulation less than employers are the CSHO.

[00:06:35]

But the theory OSHA is operating under is that, well, this CSHO is going to make that determination right there and say yes, this person is necessary. My bet is it’s going to be the rare CSHO and rare example where they actually say, no, this person is not reasonably necessary. I don’t know why an OSHA inspector would want to get in the middle of that discussion. My expectation is that they’ll accept whoever the employee says they want to have as their representative.

Phil Wilson: [00:07:11]

Saying no, they’re going to have to justify right saying yes, right? Say yes. There’s no real argument at that point. They’re the expert doing the investigation.

Mark Friedman: [00:07:28]

Right. Let’s understand a few things. First of all, if you have a unionized workplace, this is all taken care of. They come in, they ask the employer, is this a union workplace? Employer says yes. Then they go to the union representative and that’s foregone. There’s no issue there. It’s the whole question of what happens in a non-union workplace where this becomes troubling. And as I mentioned, the statute says the employer can have a representative. And I think in moments like these, employers may want to think closely about who they could bring in as a representative.

[00:08:08]

Similarly, there are no restrictions on the employer’s choice there. And so, my gut instinct is that the problems that this is going to raise are less about how that third party conducts themselves during the inspection, because if they’re smart, they’ll keep their head down and they’re just going to walk through and not be a problem. Because if they become a problem, the OSHA inspector does have the authority to say, sorry, you can’t continue. If they’re smart, they’re taking advantage of coming into that workplace and gathering whatever they can, absorbing looking at things, taking notes. Maybe if they can do it, take pictures, that kind of thing.

[00:08:53]

And they’re gathering Intel for later use. That’s the value to them of being able to come in like that. Just to tie it up in a bow. The way I’ve crystallized this whole regulation is to say this is OSHA-imposed trespassing. If you think about it, if any of these people walked up to your front gate and said, “Hey, I’d like to wander around your workplace for a little while and take some pictures, maybe talk to some employees, see how you guys operate,” you’d say no, for very valid and legal reasons. You’d probably call security and have them escorted off the premises.

[00:09:34]

But if an employee says “No, that’s the person in that purple SEIU t-shirt that I want to have come in in a company that the inspection,” you have virtually no recourse. So, it’s basically government OSHA-imposed trespassing.

Phil Wilson: [00:09:52]

Now, going back to the inspectors don’t really like the regulation. I’m curious what you think. So, just as a practical standpoint, you have an inspector who shows up with this random person and you have questions about their qualifications and whether or not they really are reasonably needed for this inspection. You’re going to raise those questions. And so, you put the company in a position where it’s like, okay, look, you need to go sit down in this conference room while we figure out who we want to have as our representative. Who is this person that’s not from OSHA that you want to bring along? What are their qualifications? You create this whole scene that’s going to happen. I’m just curious. How do you see that playing out? What do you think about that?

Mark Friedman: [00:10:55]

Right now, in the absence of any real examples, it’s a little bit hard to know exactly how it’s going to play out. And I think it may depend on CSHO is and what their feelings about this are. This could vary from CSHO to CSHO. But certainly, I think the employer is at liberty to raise those questions about this third party, whether good cause has been shown. Don’t forget that phrase. That this party is reasonably necessary to aid in the inspection. Now, let’s be honest, there are certain situations where that may be valid.

[00:11:39]

I could imagine language skills. And the previous regulation allowed for certain technical expertise. I could imagine those situations. I do not imagine that the person coming in from the union who’s trying to organize the workplace is going to necessarily demonstrate those valuable expertise and skills that would obviously make them necessary for conducting an inspection. And if I’m the CSHO, I’m saying, “What do you mean they’re necessary for this inspection? I know what I’m doing. I don’t need this outside person.” So, there’s lots of little angles here.

[00:12:21]

I think part of it is going to be the question of how much of a fuss does the employer want to make. And I think they’re going to have legitimate questions to raise. How far they want to push that is going to be the sort of debate. Employers do have the option. They’ve always had the option to go to court and say, “No, OSHA, I’m not letting you in unless you go get a warrant.” Now, they’ll get the warrant. But by doing that, you could raise the issue. We had this discussion at a recent chamber meeting about how an employer should respond.

[00:13:01]

And one of our members, one of our OSHA practicing attorney members suggested that you could go for the warrant and say the warrant only covers the Ocean Specter. It does not cover third parties. I’m not totally convinced that’s a winning argument, but there’s nothing that would stop you from making it. These are all uncharted territories, and I think there’s a lot of this stuff that has come out in the wash and we’re going to have to have some examples of this.

[00:13:33]

Now, just to give you guys a little bit of a history lesson here. The reason we know this is such a union-desired regulation is that in the Obama years, notwithstanding our warm thoughts about the Obama years, the United Steelworkers asked OSHA for permission to do this, and OSHA issued a letter of interpretation, and they said, “Oh, yes, the regulations allow you to do this.” That was a letter of interpretation, which we all said, “Oh, you can’t do this through a mere letter of interpretation. You have to do it through a full-on regulation.”

[00:14:14]

Well, here we go. This is a full-on regulation. That lever interpretation was rescinded by Secretary Acosta. So, it went away. And now we’re back to this issue having been done through a regulation. But the point is the genesis of this is a request from the United Steelworkers.

Michael Vandervort: [00:14:31]

Yeah. It’s been an objective for a while. So, Mark, I’m not sure who the parties were, but I know that there have been several business organizations that have filed, I guess, lawsuits seeking to enjoin this thing. We’re hanging on the chamber and others. I know you can’t predict the outcome of a court ruling per se, but what’s the general take right now? What are what are you hearing or seeing or is there anything you can share?

Mark Friedman: [00:15:03]

Well, I can certainly talk about the issues that the complaint raises. It’s built around the idea of an employer’s property rights, that they don’t have to let people on if they don’t want to. It also brings in and this is a very important point, the National Labor Relations Act problem, which says that a union cannot be designated as representing employees unless the employees are so chosen. Typically, as Phil would certainly be able to tell you, that’s done through a secret ballot election or at least preferably through a secret ballot election.

[00:15:37]

But in this instance, what they’re saying is that this employee can identify a union as their representative, as if the union has been chosen by the employees, where in fact it has not. So, that’s a direct contradiction to the National Labor Relations Act. So, it raises that point in the complaint. It basically makes the point that this regulation is outside of OSHA’s authority. And obviously, it’s at least bad policy. So, we filed it down in Texas and one of the Fifth Circuit courts. And it only got filed last week, so it’s just underway.

[00:16:23]

Sadly for this discussion, this lawsuit is not positioned to block this regulation from going into effect. So, we have to expect that as of tomorrow, this regulation will be a live fire exercise.

Phil Wilson: [00:16:38]

So the chamber’s asked for an injunction, but you’re just saying timing-wise, it’s not likely that there’s going to be an injunction.

Mark Friedman: [00:16:47]

It’s not positioned that way. We didn’t seek an injunction because in order to do so, you have to allege irreparable harm. And that’s something of a high bar. So, it’s a direct attack on the validity of the regulation. And if the lawsuit is successful, it will invalidate the regulation and stop it from going any further. But it’s not set up in a way to block it from going into effect tomorrow.

Phil Wilson: [00:17:14]

Well, the first employer that is asked to invite a union organizer onto the property as part of the investigation, I assume that part of their defense in the warrant litigation is going to be this regulation should be enjoined, like they don’t have a right to do it. At that point, they are irreparably harmed.

Mark Friedman: [00:17:39]

Right. So, there are two ways to challenge something like this. What we’ve done is we’ve challenged it on its face. And then what you’re talking about is an as-applied challenge. And so, as this goes into effect, if an employer wants to argue that they shouldn’t have been required to let this person into the workplace, then they’re challenging it as it’s been applied. And those could emerge as well.

Phil Wilson: [00:18:07]

A lot of these lawsuits get thrown out because yeah, you don’t like the regulation but it hasn’t been applied to you so you’re not a legitimate plaintiff to challenge it. That will be one of the arguments that the Department of Labor will make.

Mark Friedman: [00:18:26]

Not quite. What we’re alleging is that this regulation is not valid because it’s inconsistent with OSHA statutory authority. And you do have to allege certain matters of standing. And we do that through the association and its members who will be affected by it. And there are ways that you establish standing through that method, and it’s a well-understood process. And the other way is to say as an employer against whom this has been applied, then you have been directly impacted, and you can make the arguments to that.

Michael Vandervort: [00:19:06]

All the stuff we just talked about is big inside the beltway, inside the courtroom stuff, which is where these things often play out.

Mark Friedman: [00:19:17]

Geeky OSHA stuff.

Michael Vandervort: [00:19:19]

Yeah, geeky OSHA stuff, for sure. But let’s go to where a lot of our listeners live, which is inside the plant, inside the factory, inside the warehouse for a minute. From the employer’s perspective, a lot of companies have requirements about people coming into their facilities. You can’t photograph. You can’t leave these areas. There are all kinds of different rules that people have for legitimate reasons. And as you’ve said very eloquently, this is basically government-enforced trespassing that employers have to allow. So, where’s the friction between trying to run your business in a reasonable manner, with visitors to your plant being safe and in the right place, and all that sort of thing, which is a definite concern for employers and this law? Where do employers have to balance now? I don’t know, can you help us with that at all?

Mark Friedman: [00:20:17]

Sure. And I should note that OSHA has a fairly extensive FAQ section on their website talking about a lot of these implementation questions. I won’t say they cover everything, but I’ll say they cover a lot of things that might be in people’s heads. I think the answer to your question is that employers are going to be obligated to treat any of these third parties as if they were guests that they would have brought in. So, if you get invited to go take a tour of a workplace, they’ll put you through a certain briefing about safety issues. They should provide you with some specific PPE.

[00:21:01]

I went through a tour of Amazon and they gave us little toe caps to protect our toes and that kind of thing. So I think the expectation is that you would be treating these people as if they were any other guest on your property.

Phil Wilson: [00:21:19]

Yeah. But there are some places where you don’t take guests, right? There’s some equipment that you would not let a guest anywhere near. But those are places, presumably, that these guests are going to have access to.

Mark Friedman: [00:21:34]

Well, I think OSHA tries to anticipate that question and does indicate that employers can restrict access if there’s something proprietary or sensitive in that area. And the previous regulations allowed for that as well, in the context of an employee who wouldn’t have had clearance to go into that other area. So, there is some history of saying if there’s something sensitive there or proprietary or however you want to protect it, then you can restrict the access to the third party. Obviously, the OSHA inspector gets access, but other people would presumably be able to be kept out.

Michael Vandervort: [00:22:18]

I read those FAQs a while back when this first rolled out. And I don’t know if you’ll know this specifically or not, Mark, but I thought I read in there that if you had a normal practice of requiring non-disclosure agreements because of protections of certain (and it probably can’t just be a blanket NDA). Beyond restricting someone from a secure area, if your normal practice is to make guests sign non-disclosures, are those things in place though?

Mark Friedman: [00:22:50]

I believe so. And I think the key phrase there is normal practice. You can’t all of a sudden come up with this because you’ve got a third party you don’t want to have in your workplace. But if your normal practice is that anybody coming in as a guest signs a non-disclosure agreement and they’ll be restricted from using their cell phone and all those other types of things, those can be used here. Those can be applied in this context as well. But I think you have to make sure that that’s your normal practice.

[00:23:19]

You don’t want to be called out for saying, oh, you just decided to do this because you had somebody you didn’t like. Going back to what employers should be doing, that may be something that they want to make sure that they have in place as a regular policy on the chance that somebody’s going to come through that they really don’t want to have there.

Phil Wilson: [00:23:40]

Yeah. And probably, ideally, you sneak in there some waiver of liability for someone who takes a fall while they’re on the inspection. The other thing I would say, Mark, I totally agree, make your normal practice be what you would want to do in this particular situation. But there is a big difference between a guest that you have invited into your property and a guest that is being imposed on you. And it does seem to me like it would be legitimate to have a different set of rules for a guest that’s imposed on you, versus one that you’re where you are vetting them. You, you know, like.

[00:24:23]

You don’t have to say yes to anybody that wants to do a plant tour. So, the people that you would give a plant tour to, generally are going to be somebody that you’re okay with having them in there. I could see making a distinction between the two types of visitors, although I do agree you would rather the case be [crosstalk 00:23:43].

Mark Friedman: [00:24:45]

Let me put it this way. And of course, at this moment I have to issue my disclaimer that I’m not giving legal advice. I don’t want people running around saying, “Hey, Freeman at the chamber told me to do this.” But I think the safe approach for employers is to build in those protections so that they apply across the board. And you don’t want to be sitting there trying to defend something new or different for this type of visitor (I won’t even call them guests) that you didn’t have every other visitor go through. That’s not a very strong argument.

[00:25:33]

You need to be able to say this is our standard practice. And maybe that means your new practice for visitors is more rigorous than it was before. Maybe that means that even the people you like have to sign NDAs or whatever it is. Treat it as the worst-case scenario. What do you want to have the person that you really don’t want to have on that job site have to go through and make everybody else go through it too?

Phil Wilson: [00:26:00]

Yeah. I think that’s a good sort of practical.

Michael Vandervort: [00:26:03]

Yeah. I was thinking about when you talked about the search warrant. Because there’s always a rock and a hard place, right? It’s been a minute since I experienced an actual OSHA walkthrough. But I’ve been through a few of those and a couple of other government agencies in my career. You’re tempted to say we can’t do this today. But as soon as you do, it creates a certain level of animosity and you rarely get over that. So, there really is a rock and a hard place thing here.

[00:26:36]

But in this case, I’m wondering that in the interests of things better served or whatever, maybe it would be better to take some of that pain and get your OSHA lawyer or whoever because you don’t always have the luxury at a manufacturing plant based in, say, somewhere in the Upper Peninsula of Michigan or something. You don’t always have your lawyer right next door at your beck and call or whatever. So, have you guys talked about any of this stuff and come up with any of these kinds of recommendations?

Mark Friedman: [00:27:10]

Not other than what you just I think, outlined. And I think that’s a very astute approach, which is employers should know who they want to call at the moment that this arises. If this comes up, they probably won’t have any warning because OSHA’s inspections are not telegraphed. So, you’re going to have OSHA knocking at the door. Query how the employee knows that they’re going to do the inspection. I’m not quite clear on that mechanism yet. And that’s part of this thing that I think has to get worked out.

[00:27:46]

But let’s assume, for the sake of discussion that somehow they know that this is happening. Maybe they called in a complaint and that’s what triggers the inspection. That’s probably the way that this would work.

Phil Wilson: [00:28:01]

I don’t see how it works any other way. Because OSHA does walk around for a lot of reasons that are not. So obviously, if there’s an injury, then maybe the injured employee might be the one that they talk to. But it seems like this is mostly going to be triggered by an employee complaint.

Mark Friedman: [00:28:24]

And Phil, you know this from your work with organizing campaigns. That’s pretty much a standard tactic. Get the inside employee who’s sympathetic to the union to call up OSHA and have them come in and conduct an inspection that is otherwise unnecessary and just this side of harassment. So, that practice has been out there. So, I would think that that’s probably the most likely scenario in which this type of third-party question comes up. But the point is that employers should be thinking ahead.

[00:29:01]

If they’re smart, they’re thinking, “Okay, this could happen. What do we want to do if it happens? Who do we want to have ready to come in? Or who do we want to contact?” And I think it’s smart to have an OSHA attorney that you work with. OSHA/labor attorney. As I mentioned, there are two sides of this coin. So I think it would be. I just think it would be a good exercise for people to think through this a little bit and visualize what it’s going to look like if it happens.

Phil Wilson: [00:29:38]

Yeah. We’ve put together (and the ink is still drying) a framework for how to think about all of these questions. So there’s the who’s going to be the first person approached. Do they know what to do? And that’s not really different from the current world, but what’s different is this outside person may be joining. Right. Then there’s the OSHA attorney, obviously important. But if you want to have a representative given Michael’s scenario, you should identify other people who are local and will be available that can act as a representative for the employer on that walk-through.

[00:30:33]

I think anytime you’re going to have an outside guest, you want to have somebody who’s representing the employer who is just observing the walk around. Where did they go? What questions were asked? What did the outside person say or do? And you have to have all that figured out in advance. Going back to this whole question of what their credentials are, Who’s going to be questioning all of that? I do think, Mark, as we were talking about how far you want to push this with the potential cost being OSHA inspectors going to be mad at you.

[00:31:14]

But the OSHA inspector just wants to do the inspection, right? I do feel like there’s a different rock and hard place here. So one is they have to go get a warrant if they want to come in. But the other thing is you could go “Look, you’re welcome to come in and do the inspection. We’re ready for you to do the inspection right now. It’s this other person that we have questions about. And I’m sorry, but if you’re going to bring them, we have these objections to them. And if you’re going to bring them then you’re going to have to go get the warrant.” And the inspector could just go, ‘Yeah, I don’t really need them. I’ll just go do the inspection now.” And then maybe that’s the answer.

Mark Friedman: [00:31:58]

And again, we don’t really know with any great certainty how this is going to look on the ground, But I would really work through that phrase. Good cause has been shown that this person is reasonably necessary to aid in the inspection. That’s the hook for the employers to push on. That’s the threat for them to unravel this. And they can ask the OSHA inspector, “Excuse me. Show me what the good cause here is.” Good cause is evidence. There has to be some evidentiary reason why this is a good person to come in, not just that employee has identified them.

[00:32:45]

And they can push on that point. Now, at the end of the day, I don’t think they have the leverage to say “You, OSHA inspector, can come in, but this other person can’t.” I think the regulation indicates that if the OSHA inspector makes that determination, then that’s essentially the end of the discussion.

Phil Wilson: [00:33:09]

You could give them the option though of I agree that you are an expert and have a right to do the inspection, but if you want this person, we want a chance in front of a judge to talk about whether or not there’s a good cause. And so, that’s where we are at the decision.

Mark Friedman: [00:33:31]

I think you’re right. At this point, it’s all reasonable interpretations. And it is going to be a matter of how far somebody wants to push that. What’s the context? Under what situations is this person being brought in type of thing? And I think you would have an argument in front of a judge to say good cause has not been shown cause. And so again, it’s a, it’s a question of how far that they want to go with this. There is an argument there that I think they could explore.

[00:34:09]

I don’t know. You know, what the likelihood of success is going to be, and that’s going to depend on the judge and all those kinds of factors that you can’t quite identify at this stage. But the way OSHA builds this regulation, they really elevate, they really push this phrase about good cause and reasonably necessary for the inspection. So in their eyes, the OSHA argument is this is going to aid in the inspection and provide more complete inspections. That’s their argument. So, from that standpoint, the employer should be able to push back and say, “No, I don’t think that good cause has been shown.” And that would be the opportunity to push back.

Phil Wilson: [00:34:53]

We’re getting close to time. There are two things I want to make sure we cover. And then Michael, I don’t know if you’ve got any other last questions. So, the one thing I want to make sure we cover. Back to the point you were just making, and we were talking about the framework that we’ve come up with is … I think the most important thing is for the employer community to really … We call it tabletop exercise. But OSHA inspector shows up at the plant in the UP, what happens? And Billy walks all the way through. Who would we want to be called?

[00:35:29]

Do the people that are there know to call them? How do we want this good cause shown thing to be discussed? Where physically at the location is the OSHA inspector going to be sat? All of that needs to be really played out. Who needs to be aware that it’s even happening? What’s the procedure like during the walk-through? What happens after the walkthrough is over? All of that stuff needs to be played out so that you have a plan. These are going to start happening. They could be happening …

Mark Friedman: [00:36:07]

Potentially as of tomorrow. Phil, you’re absolutely right. And the way I would say this is to say employers should have in place already a plan for as people say, “When OSHA comes knocking.” You should already have something that you know how you’re going to operate, and who’s going to be in touch with them. Is it your safety director? Is it your HR person? Whoever the person is, you should have that all ready to go. The only difference is you’re going to add another addendum to it that says, ‘Oh, and if this third-party issue shows up, here is how going to deal with it.”

Michael Vandervort: [00:36:45]

So, that is a big wild card. And it opens up a lot of questions. So, my last question I guess before we go to final thoughts. I haven’t seen anything but I wonder if maybe you’re aware of anything. Is there anything beyond the expertise and showing good cause that enumerates sort of the role that these folks are allowed to play, or is this also still undefined?

Mark Friedman: [00:37:12]

Well, the FAQs do go into some level of detail about that. This person can’t be disruptive. If they are disruptive to inspection, then the OSHA inspector has the authority to tell them to leave so that they can’t go any further. But in terms of how they conduct themselves, short of that and presumably with the restrictions that an employer can impose, for instance in using cameras and that kind of thing, they’re there to accompany the inspector, and theoretically under the OSHA vision, to aid in the inspection.

[00:37:56]

So, if there’s a technical issue that they know about, they can point out to the OSHA inspector what should be happening or what the hazard is that needs to be protected against. Those types of things. That would be the ideal scenario where this person actually brings some specific expertise that’s useful to the inspection as opposed to just they’re the union organizer, and that’s who the employee knows. So, in terms of how they conduct themselves and how the inspection proceeds, my vision is that the OSHA inspector is the lead here.

[00:38:32]

They’re the ones driving this process and anybody else is tagging along and trying not to get in the way. And as I said, if they’re smart, they’re going to keep their head down and not become a problem.

Phil Wilson: [00:38:50]

They’re not that smart sometimes, Mark.

Mark Friedman: [00:38:53]

I did say if.

Phil Wilson: [00:38:57]

Yeah. Once like once they’re in, it’s like, “Oh my gosh, I’m in. Now’s my chance.”

Mark Friedman: [00:39:02]

Yeah. The sanctum sanctorum. I’ve crossed the gates. But that’s the point. They’re there to gather information. They’re not there to create a problem. They shouldn’t be.

Phil Wilson: [00:39:14]

Let’s close with this. I’ve been a member of the chambers. Well, first the US chamber, but then the Labor Relations Committee for, I don’t know, a long time, probably 15 years now. And I just think it’s a really, really valuable resource for the employer community. Just for those of our listeners who aren’t familiar with the chamber and the great work that you do. Maybe just give them a quick pitch as to why they should be involved.

Mark Friedman: [00:39:49]

Oh, sure. Thank you, Phil. I really appreciate that. And obviously, we enjoy having you as a member. We benefit from our members in terms of understanding what these big policy debates are going to look like on the ground. I mentioned we just came through our meeting. We have two meetings for our committee, the Labor Relations Committee. It meets in May and November. So, we just had our May meeting earlier this month. And that’s where we have really good granular conversations about what things are coming on, what the chamber is saying about them, and listening to our members about what they think might be the problems.

[00:40:36]

For instance, (I think you were there) one of our OSHA practicing attorneys said, “Yeah, you should go get a warrant and challenge the possibility that this third party isn’t going to be included in the warrant.” That’s a theory. I hadn’t come up with that. But that came from one of our OSHA practicing attorneys. So, our committees, I think, at least I hope they are (and this is generally how I gauge how good our meetings are), are real opportunities for collaboration and input and back-and-forth conversations.

Phil Wilson: [00:41:12]

The administration is invited to these meetings. They will speak at the meetings. You have the chance as the regulated community to talk to the regulators in advance of these rules going into effect. And they listen now. When it’s the other party, they don’t always come out with a regulation the way that you want it. But they do really good feedback from the employer community. And, and get a little better understanding. And I do think that it shapes the regulatory environment a shade better than it would otherwise be because there is this back and forth.

[00:41:59]

And then, of course, you know, the chamber itself is able to … You guys [unintelligible 00:42:02]

and you do a lot of really great work to try to keep these regulations reasonable.

Mark Friedman: [00:42:10]

What I would say is that we know the administration folks, and this is regardless of the administration. I’ll tell you back in the day with Tom Perez, the Secretary of Labor, we invited him and he’s like, “I’m coming. I have to cancel stuff. I’m coming.” That’s where he gave out his personal cell phone and his staff. But the point is, they appreciate the opportunity to get in front of our members and tell them what’s happening. Sometimes take input and have conversations. They will.

[00:42:46]

And let’s face it, these people know how to defend what they’re doing. Yeah. They’re not going to all of a sudden smack their head and say, “Oh gosh, we hadn’t thought about that.” They’re perfectly capable and happy to have that interaction. And so, we do focus on bringing in the decision-makers to these meetings, because we think the value add for our members is to get in front of them and be able to listen to them. And just to complete the thought of what we do, we are involved in every stage of these efforts.

[00:43:18]

So, when there’s a regulation being proposed, we’re obviously doing comments. A lot of times, like with the independent contractor and the overtime rig, the Department of Labor, to their credit, held listening sessions, and I was on several of those. Not to their credit, I don’t think they listened. But that’s another story. We’re very active in the comment process. We get great comments submitted by outside counsel that oftentimes set the stage for the litigation that sometimes has to happen.

[00:43:50]

So for instance, you know, OSHA walkaround an independent contractor are two great examples. We’re leading the litigation charge against those regulations. And then, of course, we’re all over the hill telling our friends up there the problems that are happening and looking for legislative answers, if we can find them through the appropriations process or other legislative vehicles. That’s a very high bar. I’m not going to try and give anybody some false sense that we’re going to be able to stop these things, but we always explore those options as we can.

Phil Wilson: [00:44:21]

Well, your litigation team is second to none. A lot of this stuff gets enjoined. You do have a really strong legal team on these regulations.

Mark Friedman: [00:44:35]

That litigation center is really first-rate. You don’t have to be, but just about everyone is a former Supreme Court clerk. These people are rock stars in the legal world. They work there because this is the kind of work they want to do. And they take that mission seriously. And when they go forth like on this OSHA walk-around break, they’re using high-profile, top-flight lawyers. I don’t know what our chances of success are, but I would tell you that we wouldn’t be bringing the action if we didn’t have good arguments.

Michael Vandervort: [00:45:15]

It’s not something that comes at low cost or low time effort, all that stuff. Well, listen, Mark, thanks so much for being a guest today on The Left of Boom Show. We really appreciate it.

Mark Friedman: [00:45:26]

I’m thrilled to be here. And I know there are some things we didn’t get into in the OSHA world, but I’m happy to come back, and we can talk more about those things.

Phil Wilson: [00:45:34]

We’d love to have you back.

Michael Vandervort: [00:45:36]

Yeah. We’ll save that for another day, though. And we’re going to go ahead and end the show. Thanks a lot.

Mark Friedman: [00:45:41]

You’re very welcome. Good to be with you guys.

Phil Wilson: [00:45:43]

Yeah. See you.