November 16, 2018 

Mr. Ron Bailey 

Occupational Safety and Health Review Commission 

Ninth Floor, One Lafayette Centre 

1120 20th Street NW 

Washington, DC 20036–3457 

VIA ELECTRONIC MAIL TO: rbailey@oshrc.gov

Re: Advance notice of proposed rulemaking, 29 CFR Part 2200 

83 Fed. Reg. 45366 (Sept. 7, 2018) 

Dear Mr. Bailey: 

On September 7, 2018, the Occupational Safety and Health Review Commission 

published an advance notice of proposed rulemaking (ANPR) inviting public comments on 

several subjects. The Chamber of Commerce of the United States and the Associated General 

Contractors of America respectfully comment on one of those subjects—whether the definition 

of “affected employee” should be broadened. 

The U.S. Chamber of Commerce, the world’s largest business organization, represents 

the interests of more than 3 million businesses of all sizes, sectors, and regions. The Associated 

General Contractors of America (AGC) is the leading association for the construction industry. 

AGC represents more than 27,000 firms, including over 6,500 general contractors and over 9,000 

specialty-contracting firms. 

The Commission’s rules currently define “affected employee” as “an employee of a cited 

employer who is exposed to or has access to the hazard arising out of the alleging violative 

circumstances, conditions, practices or operations.” 29 C.F.R. § 2200.1(e). A definition to 

approximately the same effect goes back to the Commission’s earliest days. 29 C.F.R. 

§ 2200.1(e) (1972), adopted at 37 Fed. Reg. 20237, 20238 (1972). (The rule was amended in 

1986 to reflect case law on “access.” 51 Fed. Reg. 23184 col. 2 (1986) (proposal); 51 Fed. Reg. 

32001 (1986).) The Commission’s rule was evidently meant to implement the requirement of 

section 10(c) of the Act that, “The rules of procedure prescribed by the Commission shall 

provide affected employees or representatives of affected employees an opportunity to 

participate as parties to hearings under this subsection.” 

Neither the Chamber, the AGC nor its counsel are aware of practical problems that have 

arisen with the rule. They are, however, aware that a January 2015 petition for rulemaking filed 

by the Occupational Safety and Health Law Project on behalf of several labor unions and allied 

organizations requested that the definition of “affected employee” in Commission Rule 1(e) be 

broadened. The petition asked that the rule’s restriction to employees “of a cited employer” be 
Mr. Ron Bailey 

November 12, 2018 

Page 2 

eliminated and that the rule be amended to encompass “any employee who performs work at the 

site and who is exposed to or has access to the hazard arising out of the alleging violative 

circumstances, conditions, practices or operations.” (Italics showing new proposed language.) 

The petition argues that these changes are needed to permit on-site workers to participate in 

contests of citations by controlling or creating employers on multi-employer sites and in contests 

by host employers to whom employment agencies refer temporary workers. 

There are several problems with the petition. We identify five below: 

1. The petition fails to show that the current definition has in fact posed a problem for 

on-site workers seeking to participate in Commission proceedings or even that it is likely to do 

so. The petition does not point to a single case in the then 44 years of the Commission’s 

existence in which the current rules have prevented or discouraged an on-site worker from 

obtaining or seeking party status. 

2. The petition ignores Commission Rule 21. That rule allows persons to intervene until 

ten days before the hearing and even thereafter if good cause is shown. The petition need only 

set forth the intervenor’s “interest ... in the proceeding” and “show that participation ... will 

assist in the determination of the issues in question, and that the intervention will not unduly 

delay the proceeding.”1 These are not difficult standards to meet, especially if, as the unions 

argue in their petition, the same-site workers have “first-hand knowledge of the cited conditions 

[with which] they can contribute significantly to the Commission's proceedings” (petition at 1) or 

are “contract workers” who “can actively assist in the Commission's proceedings.” Id. at 2. 

Nowhere does the petition argue that such workers have tried intervention and were denied, or 

that they would have difficulty intervening. Most important, the petition does not show why 

intervention under Rule 21 would not suffice to address their concerns. 

3. The unions’ argument with respect to temporary workers is especially questionable. 

The Secretary of Labor often considers such workers to be employees of the on-site entity—and 

usually of both the on-site entity and the referring entity. “In general, OSHA will consider the 

staffing agency and host employer to be ‘joint employers’ of the worker in this situation.” 

Thomas Galassi (OSHA), “Policy Background on the Temporary Worker Initiative” (July 15, 

2014). If, as is often the case, the on-site entity does not dispute that it is at least an employer of 

the on-site workers, then their appearance as affected employees under the current rules would 

1

 Commission Rule 21 states: 

§ 2200.21 Intervention; appearance by non-parties. 

(a) When allowed. A petition for leave to intervene may be filed at any time prior to 10 days before 

commencement of the hearing. A petition filed less than 10 days prior to the commence-ment of the 

hearing will be denied unless good cause is shown for not timely filing the petition. A petition shall be 

served on all parties in accordance with §2200.7. 

(b) Requirements of petition. The petition shall set forth the interest of the petitioner in the proceeding and 

show that the participation of the petitioner will assist in the determination of the issues in question, and 

that the intervention will not unduly delay the proceeding. 

(c) Granting of petition. The Commission or Judge may grant a petition for intervention to such an extent 

and upon such terms as the Commission or the Judge shall determine. 
Mr. Ron Bailey 

November 12, 2018 

Page 3 

not be disputed. But even if the on-site entity does dispute the assertion, and on-site workers 

seek party status, it is unlikely that a judge would find it prudent to resolve a key merits issue at 

the threshold of the litigation through the procedural device of resolving a workers’ party status. 

A prudent judge would, until the issue’s merit is explored through discovery and trial, more 

likely allow the workers provisional participation under Rule 1(e) or, in the alternative, permit 

intervention under Commission Rule 21. 

4. The amendment sought by the union would create, especially with respect to multiemployer worksites (particularly construction worksites) difficult problems of administration and 

difficult questions about the lawfulness of expanding notification requirements on employers. 

As Commission Rules 7(g) and (h) indicate, the most practical way to implement section 

10(c)’s command that affected employees have an opportunity for party participation would be 

to impose the burden of notifying “affected employees” of the contest and of the hearing date on 

the cited employer. But expanding the definition in Rule 1(e) to non-employee exposed workers 

would create considerable notification difficulties for cited employers. They would have to first 

figure out who the non-employee affected workers are—a difficult task on a multi-employer 

construction site, where any one of many trades might have passed by an allegedly violative 

condition. The alternative would be to force cited employers to resort to overkill—to treat all 

site workers as affected whether they are in fact or not. Then the employer would have to figure 

out how to give the workers notice. Would their unions have to be served? If so, which ones? 

What about workers who are not in a union? Would posting on the job site suffice? Suppose by 

the time of posting the non-employee workers were no longer working at the site because their 

phase of the work had been completed? Suppose that several employers were cited (the 

controlling, creating, and several exposing employers); would all of them have to notify all 

affected workers? Serve all the unions? The unions’ petition neither addresses these 

ramifications nor shows that any gain in worker participation caused by these amendments 

would justify the greater burdens of notification and uncertainty they would impose. 

The appropriateness of imposing notifications burdens on employers with respect to 

workers who are not their employees may also be questioned, for the Act itself suggests that 

Congress meant to impose notification burdens on employers only with respect to their own 

employees. Section 8(c)(1) states that, “The Secretary shall also issue regulations requiring that 

employers, through posting of notices or other appropriate means, keep their employees 

informed of their protections and obligations under this Act, including the provisions of 

applicable standards.” (Emphasis added.) 

A change to the rule may also have ripple effects on other aspects of the administration of 

the Act. Section 6(d) on variances states that, “Affected employees shall be given notice of each 

such [variance] application and an opportunity to participate in a hearing.” The Secretary’s 
Mr. Ron Bailey 

November 12, 2018 

Page 4 

variance regulations state, however, that the applicant must inform “his employees of the 

application.” 29 C.F.R. § 1905.11(b)(5) (emphasis added).2

5. The unions’ petition implicitly raises broad legal questions that would be better be 

resolved in adjudication than in a rulemaking over a procedural rule. For example, there is at the 

moment considerable uncertainty and controversy about the contours and reach of the joint 

employer doctrine. See, e.g., the discussion in Froedtert Memorial Lutheran Hospital, Inc.,

20 BNA OSHC 1500, 1512-15, 2002 CCH OSHD ¶ 32,703, pp. 51,739-41 (No. 97-1839, 2004) 

(Chairman Railton, concurring). The Commission is also likely aware that the doctrine has been 

controversial in other fields of law, such the National Labor Relations Act. E.g., BrowningFerris Indus. of Cal., Inc., 362 NLRB No. 186 (2015), pet. for rev. filed, Nos. 16-1028 & 16-

1064 (D.C. Cir.). Whatever the ultimate resolution of this question of substantive law may be, it 

should not be unnecessarily pretermitted by a procedural rule. 

In sum, it would be better for the Commission to continue the modest approach in its 

current rules and resolve any legal questions in adjudication. Commission Rule 1(e) should for 

now remain as it is. 

Respectfully, 

Marc D. Freedman 

Vice President, Workplace Policy 

Employment Policy Division 

Chamber of Commerce of the United States 

Kevin Cannon 

Director, Safety and Health 

Associated General Contractors of America 

Of Counsel: 

Arthur G. Sapper, Esq. 

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 

Washington, D.C. 

36061514.3 

2

 29 C.F.R. § 1905.11(b)(5) requires a “certification that the applicant has informed his employees of the [variance] 

application ....”