New Rule Regarding MiOSHA Interviews
Saw this in LI today. I am in a Fed OSHA State, but those of you in Michigan should take note. I agree with the author this will certainly be challenged in court. In Fed OSHA union reps or counsel are included in interviews if asked for by the employee. For Salaried Exempt employees a company rep is allowed and recommended by me to customers. If OSHA was to do this as MiOSHA has done I know it would be taken to court!
https://ogletree.com/insights/miosha-issues-agency-instruction-clarifying-procedures-for-conducting-interviews-during-enforcement-investigations/
Comments (11)
Personally, I don't see an issue with this and always wondered why union reps could sit in on employee interviews, but not the employer (e.g., management). I'm sure it'll be contested, as you mentioned, but I don't see why a union rep would need to be in an employee interview. When they're interviewed, they're being questioned about the employer in order to determine if the employer will be cited, not themselves. The union rep doesn't act on behalf of the employer, and wouldn't need to protect the employer, so again, I don't see a reason why they would need to be in the interview in the first place. It's one thing to have the union rep there if the employer is accusing/disciplining an employee, but this is a bit different in my eyes.
Ah Drew, you live in KY. I was born and raised in UAW country! My parents were UAW members as I was while going to college, than my dad teased me as I switched sides and became a "company man" post college as a Supervisor. I wish I had a $1 for ever hour I spent "discussing issues" with a union steward, I could have retired 10 years earlier (usually because I had disciplined an employee). In this case, the union rep is NOT there to protect the company or even ensure the truth, but to represent the employee. The union is the legal representative of the employee per the NLRA (National Labor Relations Act - The Wagner Act of 1933). In the same way when I threatened an employee's job the union rep (steward) had to be present. I have fired people only to have the steward tell me on the sly that he thought the man deserved it because he hurt the team, but he would have to write a grievance just the same because the man paid union dues, which is 1000% true (they might not fight or push the grievance very hard) but they had to represent the employee or face being sued themselves.
In like manner if OSHA wants to interview a "Management Person" usually under the Fair Labor Standards Act a "Salaried Exempt (from OT) employee" the employee's rep is the Company. Thus a Company Rep may be in the interview. I advise my customers to always take that opportunity.
So to the Feds the other people are there as "counsel", and under the US Constitution you have a right to counsel when interviewed by the government, regardless who will be found at fault.