Bill Text: MS SC544 | 2024 | Regular Session | Introduced
Bill Title: Opposing proposed changes to OSHA Worker Representative Designation Process.
Spectrum: Partisan Bill (Republican 4-0)
Status: (Failed) 2024-05-14 - Died In Committee [SC544 Detail]
Download: Mississippi-2024-SC544-Introduced.html
MISSISSIPPI LEGISLATURE
2024 Regular Session
To: Rules
By: Senator(s) Hill, McCaughn, Berry, Suber
Senate Concurrent Resolution 544
A CONCURRENT RESOLUTION RECOGNIZING THE NEED TO PROTECT WORKPLACE SAFETY AND PRIVATE PROPERTY RIGHTS FROM INFRINGEMENT BY PROPOSED CHANGES TO THE OSHA WORKER WALKAROUND REPRESENTATIVE DESIGNATION PROCESS.
WHEREAS, the Occupational Safety and Health Act of 1970, 29 USC Sections 651–678, encourages "the States to assume the fullest responsibility for the administration and enforcement of their occupational safety and health laws"; and
WHEREAS, the Occupational Safety and Health Act provides for certain safety inspections on a covered employer's premises during which employees of the employer may designate an employee representative to accompany the OSHA Compliance Safety and Health Officer (CSHO); and
WHEREAS, for more than 50 years, the Occupational Safety and Health Act has been interpreted by the Occupational Safety and Health Administration (OSHA) in its implementing regulations, specifically 29 CFR Section 1903.8(c), to categorically require that employee representatives be actual employees of an employer, except where specific expertise makes the participation of a non-employee "reasonably necessary"; and
WHEREAS, the current rule states that "the representative(s) authorized by employees shall be an employee(s) of the employer," but the U.S. Department of Labor proposes at 88 Fed. Reg. No. 167 at 59825-59834, August 30, 2023, to amend the regulation to say: "The representative(s) authorized by employees MAY be an employee of the employer or a third party"; and
WHEREAS, OSHA is claiming the purpose of this amendment is to "clarify" that the non-employee, third-party representative "may aid in the inspection based upon a range of knowledge, skills, or experience beyond that obtained through formal or technical education"; and
WHEREAS, the existing regulation provides examples of the sort of expertise the non-employee representative must possess, stating that the types of non-employee experts contemplated are "such as an industrial hygienist or safety engineer"; and
WHEREAS, the U.S. Department of Labor is proposing to remove these examples from the regulation text that has stood for more than 50 years, which will have the effect of giving the OSHA CSHO unfettered discretion to allow unqualified persons who are not employees of the employer to enter the premises of the employer; and
WHEREAS, the proposed rule and accompanying rulemaking process is contrary to the Congressional intent and statutory structure of the OSHA Act, circumvents the federalism requirements of Executive Order 13132, neglects relevant court precedent, and fails to consider alternatives that can only be revealed through the state consultation process; and
WHEREAS, the U.S. Department of Labor failed to adequately consider costs imposed by this rule change on employers and state and local governments; and
WHEREAS, the Fifth Amendment of the U.S. Constitution provides that "no person shall be ... deprived of life, liberty or property without due process of law; nor shall private property be taken for public use, without just compensation"; and
WHEREAS, the U.S. Supreme Court in Marshall v. Barlow's, Inc., 436 U.S. 307 (1978) held that business owners subject to OSHA inspections retain certain rights under the Fourth Amendment, which provides protection "against unreasonable searches and seizures"; and
WHEREAS, Section 23 of the Mississippi Constitution guarantees that "the people shall be secure in their persons, houses, and possessions, from unreasonable seizure or search; and no warrant shall be issued without probable cause"; and
WHEREAS, it is the intent of the Legislature to protect the health and safety of Mississippi workplaces in a manner consistent with the constitutional and legal rights that the state as an independent sovereign in our federal system is bound to protect:
THEREFORE, BE IT RESOLVED BY THE SENATE OF THE STATE OF MISSISSIPPI, THE HOUSE OF REPRESENTATIVES CONCURRING THEREIN, That the Mississippi Legislature condemns and opposes the proposed changes to the OSHA Worker Walkaround Representative Designation Process at 29 CFR Section 1903.8(c); and
BE IT FURTHER RESOLVED, That copies of this resolution be forwarded to each state-elected official of Mississippi; each member of the United States House of Representatives and Senate elected to represent the State of Mississippi; the President of the United States; the United States Secretary of Labor; the United States Assistant Secretary of Labor for Occupational Safety and Health; and the Jackson, Mississippi, Office of the Occupational Safety and Health Administration.
