Senators Introduce Bill to Allow Employers to Give Unionized Employees Raises for Performance

Senator Marco Rubio (R-FL) recently introduced legislation that would allow employers to provide financial incentives to individual employees based on their job performance, rather than based on seniority in a collective bargaining unit. Health, Education, Labor & Pensions (HELP) Committee Chairman Lamar Alexander (R-TN) is also cosponsoring the legislation.

If passed, the “Rewarding Achievement and Incentivizing Successful Employees (RAISE) Act” would amend the National Labor Relations Act (NLRA), which currently covers collective bargaining agreements for nearly 7 million workers. These agreements prevent employers for rewarding high job performance, instead creating “seniority ceilings” that force employers to provide raises to employees based upon their seniority.

Senator Alexander remarked, “This bill will give employers the freedom to pay their employees more for a job well done, for their dedication and hard work, rather than for their time spent in a union.”

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Is Your Facility Ready? Preparing for a New Type of OSHA Inspection

OSHA recently issued a letter of interpretation that allows union representatives and other non-employee third parties to accompany OSHA inspectors on walk-around inspections of non-union workplaces. The applicable OSHA regulations provide that workers may designate an employee of the facility to participate in the walk-around inspection, unless there is good cause shown that a third party is “reasonably necessary” to conduct a thorough and effective physical inspection.

OSHA has broadly interpreted this language such that a third-party representative is “reasonably necessary” when they will make a positive contribution to a thorough and effective inspection.

The NASF has joined the Coalition of Workplace Safety (CWS) in opposing OSHA’s interpretation. On June 12, 2013 the 56 organizations in the CWS sent a letter to Dr. David Michaels, Assistant Secretary of OSHA, stating the rationale of why this interpretation is inconsistent with OSHA’s statutory and regulatory requirements and represents bad public policy.

Practical Steps Employers Can Take

In issuing this new interpretation, OSHA has raised more questions than it has answered. As these issues are being addressed, there are several practical steps that employers can consider when a third party arrives with an OSHA inspector for a walk-around inspection at the workplace. The practical steps are presented merely as general guidance, employers should consult with their legal counsel for the specific application to each individual situation.

  1. First, ask for the credentials for every person that is with the OSHA inspector to determine each individual’s affiliation.
  2. Second, you may consent to the OSHA officials accessing the facility for a walk-around inspection, but deny access to third parties that are not government officials or contractors.
  3. If the OSHA inspector has a warrant for the inspection, check to see if the warrant covers the third parties present. If not, then you may deny access to the third parties.
  4. If the warrant does include third parties, you may want to consider challenging the warrant’s application to those third parties before a magistrate before allowing access to third parties.
  5. If you allow third parties access for the walk-around inspections, you may want to limit the third parties’ participation as summarized below.
    • Limit the third parties’ access to only the walk-around inspection – no participation in pre- and post-inspection conferences and no interviews with employees
    • Require third parties to sign Confidentiality Agreements and a Waiver of Liability (consistent with what applies to OSHA officials)
    • Require third parties to wear appropriate personal protective equipment (PPE) during the walk-around inspection
    • Require third parties to undergo applicable safety training prior to walk-around inspection
    • Do not allow third parties to take photographs or videos or take samples during the walk-around inspection

Emerging Outlook

Because OSHA’s new interpretation appears to open novel legal issues, it is not clear how OSHA will choose to implement this new approach. The NASF will continue to work as part of the CWS to oppose the inappropriate application of this new interpretation. In the meantime, employers can take reasonable and appropriate measures to minimize unnecessary and intrusive walk-around inspections pursuant to OSHA’s letter of interpretation.

If you have any questions or would like more information regarding OSHA’s letter of interpretation on inspections, please contact Jeff Hannapel with NASF at jhannapel@thepolicygroup.com.

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A New OSHA Interpretation: Union Representatives Can Accompany OSHA Inspector at a Non-Union Worksite

OSHA is startling employers with a new “Interpretation Letter” that departs from 40 years of practice and expands the rights of non-employees and union representatives during the walkaround portion of an OSHA inspection at non-union workplaces.

In a recently released letter, which NASF members discussed at the Washington Forum in April with U.S. Chamber of Commerce Labor Policy Director Marc Freedman, OSHA responded to a United Steelworker safety representative who asked:

“whether workers at a workplace without a collective bargaining agreement may authorize a person who is affiliated with a union or a community organization to act as their representative under the Occupational Safety and Health Act (OSH Act). This would include “representing the employee(s) as a personal representative” and “accompanying the employee on an OSHA inspection” in a non-unionized workplace.”

OSHA answered, in part:

“The OSH Act authorizes participation in the walkaround portion of an OSHA inspection by “a representative authorized by [the employer’s] employees.”…. Therefore, a person affiliated with a union without a collective bargaining agreement or with a community representative can act on behalf of employees as a walkaround representative so long as the individual has been authorized by the employees to serve as their representative. This right, however, is qualified by the Secretary’s regulations, which allow OSHA compliance officers (CSHOs) to exercise discretion over who participates in workplace inspections.”

The new letter disavowed and withdrew a 2003 Interpretation Letter suggesting that the OSHA law imposed more restrictions on non-employee involvement in inspections than OSHA’s new interpretation.

Many employers are just beginning to hear about the new interpretation and are concerned about the implications of the letter. But legal and safety experts are stating the obvious – that outside organizations or unions will be allowed to hijack the workplace safety process for reasons wholly unrelated to protecting workers.

NASF members who would like a copy of the complete OSHA Interpretation Letter, please email Christian Richter at The Policy Group at crichter@thepolicygroup.com.

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