Non-Union Facilities Can Keep Union Reps Out of OSHA Inspections

By Kathleen Jennings (

Non-union employers can breathe a sigh of relief this week — OSHA has changed its enforcement policy regarding the participation of union representatives in workplace inspections of non-union facilities. In a 2013 interpretation letter (known as the “Fairfax Memo”), OSHA addressed which people not associated with the employer or government can be selected by compliance officers to accompany them on inspections. OSHA took the position that it had a right to select union advocates to participate in workplace inspections, even in non-union facilities. Not surprisingly, employer groups were not happy with this interpretation, and the Fairfax Memo was challenged in Court by the by the National Federation of Independent Businesses. Last week, OSHA rescinded the Fairfax Memo and announced that the guidance would be removed from OSHA’s manual on how staff should conduct inspections.

This is one less headache for non-union employers dealing with OSHA inspections. If an employer is going to have anyone present at an OSHA inspection, it should be the company’s counsel.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at

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