PSM STANDARD – Recent Fifth Circuit opinion limits OSHA’s power to issue citations for failing to address PHA and audit findings.
Managing OSHA Inspections
Summer Associate Thorne Maginnis assisted in preparing this post.
Two weeks ago, we discussed the “Sallman Letter,” a recent OSHA Letter of Interpretation permitting employees at a non-unionized workplace to designate a union-affiliated representative for OSHA inspections. As we explained, one way that employers can protect themselves against this potential threat is by demanding a search warrant when a union representative is part of the inspection team. This raises a number of important questions about search warrants that we will address in this post, including: when employers should exercise their right to demand a warrant, what OSHA must do to get a warrant, and how to challenge a warrant, should one be issued.
On June 5, I had the privilege of speaking at the Texas Chemical Council’s Environmental, Health & Safety Seminar at the Moody Gardens Convention Center in Galveston, Texas. For those of you who were not able to join us, I have uploaded my slide presentation “Tips for Preparing for your OSHA PSM Inspection”.
A recently published OSHA Letter of Interpretation (the “Sallman Letter”) could have a profound effect on how OSHA inspections are conducted. According to the Sallman Letter, employees at a workplace without a collective bargaining agreement may designate a person affiliated with a union to act as their “personal representative” for OSH Act purposes. Employees may also designate these persons to act on their behalf as a walkaround representative during an OSHA inspection. This novel interpretation creates new threats to the protection of proprietary information, the risk of tort liability and opens the door to union organizing campaigns.
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