Seyfarth Synopsis: Newly-confirmed member on Occupational Safety and Health Review Commission offers hope for eventual resolutions of pending cases.

On October 10, 2025, the Senate confirmed Jonathan L. Snare to serve as a Commissioner of the Occupational Safety and Health Review Commission (OSHRC), filling one of the long-vacant seats on the three-member appellate panel for federal OSHA cases. His term extends through April 27, 2029.

Background

The Occupational Safety and Health Review Commission (OSHRC) is the independent administrative agency that provides appellate-style review for matters arising from OSHA enforcement actions. For much of the past year, the three-member Commission has lacked a quorum of two commissioners, leaving review of dozens of administrative law judge (ALJ) decisions pending and delaying final resolution of contested citations. Snare’s confirmation begins to restore OSHRC’s ability to function, although at least one additional commissioner must be confirmed before the Commission can issue decisions.

Experience and Perspective

Snare has more than two decades of experience in labor and employment law at an employer side law firm, and previously served in several senior roles at the Department of Labor, including Acting Assistant Secretary of OSHA and Deputy Solicitor of Labor. His experience suggests he will have an understanding of perspectives from both the Department of Labor and employers, including the practical effects that OSHRC decisions can have on industry. This deep level of understanding will be invaluable in helping to formulate decisions once a quorum is reached.

Implications

With Snare’s appointment, employers, employees, and OSHA may see progress towards resolution on the backlog of cases awaiting Commission review, hopefully to the benefit of the regulated community. A functioning OSHRC provides a critical check on agency enforcement and ensures that contested matters are resolved consistent with statutory requirements and constitutional principles, such as due process protections afforded to employers during an inspection. The next key step will be the confirmation of an additional commissioner (or two) to reestablish a quorum and restore the Commission’s full adjudicative authority.

For more information on this or any other workplace safety topic, please contact your Seyfarth workplace safety attorney.

Seyfarth Synopsis: David Keeling’s confirmation as OSHA Chief could give regulatory and enforcement direction to OSHA when federal government funding is restored, likely moving the agency towards enhanced collaboration with industry and refocusing of enforcement priorities.  

Senate Confirms Keeling

On October 6, 2025, as part of a larger confirmation of Trump appointees, the Senate voted 51-47 to confirm as Assistant Secretary of Labor for Occupational Safety and Health, officially placing him at the helm of OSHA.

As we previously blogged, Mr. Keeling is a seasoned safety professional with decades of experience at major logistics and transportation employers in the private sector. His familiarity with complex organizational safety programs positions him to lead OSHA with a nuanced understanding of OSHA regulation and enforcement in the context of the modern workplace.

On June 5, 2025, during his nomination hearing before the Senate Health, Education, Labor and Pensions (HELP) Committee, Mr. Keeling outlined his vision for the agency and policy priorities. He would shift OSHA away from reactive enforcement and toward proactive injury and illness prevention. He seeks to “greatly accelerate the pace of modernization in the area of Regulatory Oversight and Rulemaking,” emphasizing predictive analytics and informed design to eliminate hazards before they cause harm.

Revitalized Cooperative Programs

Mr. Keeling has also pledged to revamp OSHA’s Voluntary Protection Programs (VPP), which he views as underutilized tools for achieving meaningful safety outcomes. “We must move beyond existing silos and self-imposed barriers to achieve real improvement,” he testified, signaling a renewed emphasis on collaboration with employers and industry stakeholders.

Mr. Keeling’s cooperative tone stands in stark contrast to the enforcement-heavy and confrontational posture of recent Democratic administrations. Under Mr. Keeling, OSHA is expected to prioritize industry alliances, data-driven safety strategies, and employer-led initiatives that align with regulatory goals.

Workplace Violence and Heat Illness Priorities

Mr. Keeling has signaled an interest in pursuing a new workplace violence standard with employer input, as well as maintain OSHA’s focus on heat illness.  At this point it is unclear whether that this renewed focus on heat illness will take the form of formal rulemaking or revised emphasis programs.

Does Mr. Keeling Have the Resources to Chart a New Path for OSHA?

Mr. Keeling’s confirmation ushers in a new chapter for OSHA—one defined by modernization, employer collaboration, and a data-informed approach to safety. As the agency recalibrates under his leadership, employers should prepare for both opportunity and change.

But any goals Mr. Keeling pursues will be limited by the context of an agency and federal administrative state in a period of significant cost reductions. He faces a currently shuttered federal government, with the majority of OSHA staff furloughed and unavailable to handle basic enforcement functions. When the government does reopen, Mr. Keeling will be working with reduced budgets and fewer human resources than the agency had in October 2024. It remains to be seen whether he will have the staff to pursue his new vision for federal OSHA. But in any event, employers can expect to see an OSHA agency less focused on punishing employers and more focused on moving employers into a new era of health and safety.

For more information on this or any other workplace safety topic, please contact your Seyfarth workplace safety attorney.

Seyfarth Synopsis: Despite Congress failing to fund the federal government, the Department of Labor and OSHA will continue to operate with a skeleton crew. Citations will still be issued, deadlines remain in effect, and employers must report serious injuries and fatalities.

OSHA Furloughed Most Staff

On October 1, 2025, the federal government entered a shutdown following Congress’s failure to fund the government. Pursuant to federal law, non-essential operations of the government have been suspended, with some employees required to continue working without pay.

In 2025, federal OSHA had already faced tremendous attrition with DOGE cuts and voluntary resignations. Under the Department of Labor’s written contingency plan, approximately 43% of OSHA’s staff was supposed to be furloughed. But this week, OSHA furloughed 1,204 out of 1,664 staff members. Administrative functions have been suspended, including regional offices, regulatory functions, and support staff. Some OSHA management and compliance officers will remain on duty, focusing on high-priority inspections and enforcement.

OSHA State Plan Activity to Continue Uninterrupted

OSHA state plans largely will not be impacted by the federal shutdown. OSHA State Plans are state agencies that enforce OSHA regulations against private employers in 21 states and one territory. While federal oversight of those agencies may be reduced during the shutdown, inspections, citations, and appeals will continue unabated in state plan states.

Ongoing Federal OSHA Inspections

With ~75% of OSHA staff furloughed, most ongoing enforcement activity has been suspended. If you contact an OSHA compliance officer about an ongoing inspection, you likely will receive an out-of-office reply that they are unreachable. OSHA has stated that it will continue some OSHA inspections with its skeleton crew:

  • Imminent danger situations
  • Workplace fatalities and catastrophes
  • Serious safety and health complaints
  • Follow-ups on abatement and high-gravity serious violations

New programmed inspections will not be opened.

OSHA Must Issue Citations for Ongoing Inspections

The OSHA Act imposes a six-month statute of limitations to issue citations from the time OSHA becomes aware of a hazard. Accordingly, OSHA must issue citations within six months of the date of an accident, OSHA’s receipt of a complaint or an injury report, or OSHA’s opening of a programmed inspection. OSHA’s deadlines to issue citations have not been stayed and there is no indication that Congress will extend the statute of limitations period during this shutdown. Accordingly, we anticipate that the Agency will still issue citations with pending deadlines during the shutdown. Employers should be prepared to receive and respond to citations even while other government functions are suspended.

Employers Must Comply with Important Deadlines

Notice of Contest. Employers receive citations must file a Notice of Contest (appeal) within 15 working days after receiving a citation or it will become final. The government shutdown has not stayed that jurisdictional deadline. OSHA has cancelled many informal conferences and will not negotiate a settlement. Accordingly, a failure to file a contest will waive an employer’s rights to challenge a citation.

Reporting Injuries. Employers must still report work-related injuries and illnesses as required by law. Even employers in low hazard industries who are not required to keep written OSHA records still face reporting obligations. Federal OSHA regulations require employers to report work-related fatalities within 8 hours, and serious injuries within 24 hours (amputations, loss of eye, or hospitalizations for medical treatment). The employer must analyze whether the incident is work-related and whether it must be reported to OSHA, often within hours of its occurrence. Qualified legal counsel can help advise on reporting obligations and legal analysis.

Recording Injuries. Within 7 calendar days of a work-related injury or illness that meets a recording criteria (e.g. days away from work), an employer who is required to maintain an OSHA Form 300 Log must also add the injury to the log and create an OSHA Form 301 Incident Report.

Additional Recommendations

A government shutdown may slow some regulatory and enforcement gears, but occupational safety and health is still vitally important. Employers should not interpret the shutdown as a reprieve from compliance or permission for complacency. Instead, they should remain proactive, monitor developments, and consult legal counsel to navigate the continuing uncertain terrain of the Second Trump Administration.

Introduction

OSHA duty officers around the country routinely field complaints from employees and labor unions alleging workplaces are understaffed and unsafe. Unions often dispute staffing levels, complaining that employers have insufficient bargaining unit members and insufficient members with seniority. Individual complainants allege that they are left to work alone, have no backup in case of emergency, or are at enhanced risk of accident or workplace violence.

OSHA duty officers normally tell complainants that there are no written regulations addressing safe staffing levels, and that it is not unlawful to work alone. But employers would be wise to consider staffing levels to protect employees from recognized hazards. In many situations, appropriate staffing can reduce risks of accidents and slow-developing injuries, and ensure employee safety and emergency response. Accordingly, understanding of issues relating to safe staffing levels can be key to minimizing risks to OSHA citations and other legal liabilities.  

OSHA and Legal Liabilities

Under the OSH Act’s General Duty Clause (section 5(a)(1)), employers must provide a workplace free from any recognized hazard likely to cause death or serious physical harm. For OSHA to cite an employer under the General Duty Clause, the hazard must be recognized by the employer or in the industry. Where insufficient staffing is recognized to expose employees to hazards, employers face liability for Serious or Willful OSHA citations. Recognized hazards principally exist where staffing levels render employees unable to perform critical safety tasks.  Further, injuries to employees resulting from alleged understaffing could result in workers compensation claims. Injuries to non-employee workers could result in tort claims, alleging negligence and a failure to meet the standard of care of a reasonable employer. 

Though there is no criminal liability for a willful violation brought under the General Duty Clause, a willful violation of a specific regulation resulting in a fatality can result in criminal prosecution punishable with six months in federal prison. State governments occasionally also prosecute employers (and managers) for a range of criminal violations relating to deaths in their workplaces.

Emergency Response and PSM Facilities

Complex facilities require minimum staffing levels to ensure appropriate response in the event of natural disasters and major emergencies.  Storms, hurricanes, tornadoes, floods, and earthquakes typically require minimum available staffing to prevent further damage and catastrophes. Implicated OSHA standards include the following:

  1. Under OSHA’s Emergency Action Plan regulations (29 CFR 1910.38(c)), employers are required to have procedures for evacuation and operating critical plant components during an emergency. Employers must have adequate personnel to facilitate an emergency response, as necessary.
  2. Where employers utilize their own team for emergency response, the team must be adequately staffed to perform evacuations, firefighting, or chemical spill responses.
  3. Under the Permit-Required Confined Spaces standard (29 CFR 1910.146), staffing must be adequate for all roles to be present (entrant, attendance, and entry supervisor), and an entry-rescue team (if required).
  4. For facilities governed by the Process Safety Management (PSM) standard (29 CFR 1910.119), the regulations require staffing to perform tasks safely and maintain process safety information, procedures, training, and emergency planning. Insufficient staffing levels can constitute a PSM violation where it creates unsafe conditions that make a chemical release more likely.
  5. After an accident, an employer may need to contact emergency services, immediately investigate the facts of the accident, and provide clear direction to emergency responders to ensure they know where to go and how to protect themselves from any hazards. Insufficient staffing may render the employer unable to provide that assistance.
  6. In addition to staffing levels, employers should take into account the need for adequate supervision for the employees working. Supervision shortages most often occur during off-shifts.

Fatigue, Overwork, and Workplace Violence

Insufficient staffing can result in employees working extended shifts. Overworked employees could lead to wage and hour violations, including under the FLSA and state laws. Extended hours can result in employee fatigue and a declining quality of decision-making that results in greater exposures to hazards.  Employers may also face the following hazards:

  1. Understaffing can contribute to ergonomic hazards, to the extent that employees attempt to lift heavier loads or move heavier equipment that would normally require a team effort.
  2. Employers operating heavy equipment may lack “spotters” and may be unable to complete tasks efficiently or safely.
  3. Lower staffing levels in many environments, such as retail environments and healthcare, can result in increased risks to workplace violence (often addressable with security staffing in particular)
  4. Employers may be choose to address these issues with elimination or engineering strategies, to minimize employee exposure to safety hazards.

Where to Find Staffing Levels

Optimal safe staffing levels and ratios vary significantly based on the industry, the size of a worksite, the complexity of operations, type of equipment, and severity and probability of workplace hazards. Safe staffing levels can be determined in part by a job hazard assessment by a qualified safety professional, in consultation with industry standards and Original Equipment Manufacturer recommendations. Benchmarking is often available from industry organizations and consensus standards. For firefighting, NFPA 1710 staffing standards are generally considered safe and effective, aiming to ensure adequate resources for fire suppression, EMS, and special operations.

Failure to comply with industry consensus standards can create OSHA General Duty Clause liability, as OSHA often relies on industry standards and industry recommendations as bases for an alleged “recognized hazard” in the industry.

Engage Qualified Outside OSHA Counsel

Because of these many legal liabilities, it is essential for employers to engage a qualified attorney experienced in OSHA compliance. If you have an accident or OSHA opens an inspection, experienced OSHA counsel can be integral to defend the employer and conduct proper OSHA inspection management. Improperly managed inspections can result in avoidable civil and criminal liability. Please contact the authors for more information.

About the Authors:

Adam R. Young is partner in the Workplace Safety and Environmental Group in the Chicago office of Seyfarth Shaw LLP. Mr. Young focuses his practice in the areas of occupational safety and health, employment law, and associated commercial litigation. Mr. Young can be contacted at ayoung@seyfarth.com (312/460-5538).

Mark A. Lies, II is an attorney in the Workplace Safety and Environmental Group in the Chicago office of Seyfarth Shaw LLP. Mr. Lies is a partner who focuses his practice in the areas of products liability, occupational safety and health, workplace violence, construction litigation and related employment litigation. Mr. Lies can be contacted at mlies@seyfarth.com (312/460-5877).

Seyfarth Synopsis: Oregon OSHA institutes program for comprehensive follow-up inspections based on an employer’s violation history, which necessitates employer care during inspections and negotiation of settlements.

Oregon Governor Tina Kotek signed Senate Bill 592 into law in 2023, requiring Oregon OSHA to increase penalties and implement a program for follow-up inspections for significant citations. In response, Oregon OSHA implemented its “Programmed Inspections for Cause” enforcement program designed to prioritize comprehensive inspections against employers with histories of multiple high-classification (Repeat or Willful) citations or citations issued in response to a fatality. 

Comprehensive Follow-up Inspections

A “comprehensive inspection” is a wall-to-wall examination of the worksite to assess compliance with occupational safety and health regulations. Unlike focused inspections, which target specific hazards or complaints, a comprehensive inspection reviews multiple aspects of workplace safety, including:

  • Worksite conditions – Identifying hazards related to equipment, materials, and overall environment.
  • Employee practices – Evaluating whether workers follow safety protocols.
  • Recordkeeping – Checking injury logs, training records, and compliance documentation.
  • Safety programs – Assessing the effectiveness of employer safety initiatives.

Comprehensive (“wall-to-wall”) inspections can be extremely lengthy and onerous, consuming management time and attention better spent on employee safety. A follow-up wall-to-wall inspection is more likely to result in significant OSHA citations and penalties, such as willfuls (maximum of $164,759 per violation, but up to $263,599 per violation if it involves a work-related fatality) or failure to abate (fined at$15,625 per day for each violation).

What Triggers a Programmed Inspection for Cause?

Oregon OSHA mandates a comprehensive inspection when any of the following conditions are met:

  • A work-related fatality is linked to a violation.
  • An employer commits three or more willful violations within a 12-month period.
  • An employer commits three or more repeat violations within a 12-month period.
  • An employer has a history of non-compliance, and the Administrator deems a full inspection necessary for employee protection.

The final trigger is the most legally dubious, as “history of non-compliance” is undefined. Ostensibly intended to enhance accountability and enhance workplace safety across Oregon, the program permits Oregon OSHA’s Administrator to target employers for inspection so long as they are on a “bad history” list.  The Program appears to create a system in which Oregon OSHA can circumvent the legal requirements of probable cause and neutral basis for inspection, violating employers’ constitutional rights under the Due Process Clause to be free from unfair and arbitrary employment actions.

Importantly, employers inspected under this Program must learn the basis for an inspection at an Oregon OSHA opening conference; they may have legal defenses that must be raised at the opening or they will be waived.

Under the Program, these follow-up inspections must be initiated within one year of the closing conference that triggered the follow-up.

Avoiding Getting Placed on the “For Cause” List

Oregon OSHA’s “For Cause” Program further spotlights the importance of employers implementing a quality Safety and Health Management System and analyzing the workplace to reduce hazards to their lowest reasonable levels. In the event Oregon OSHA comes on site, employers must effectively manage the inspection to ensure that only the agency receives only responsive, truthful information.  If an employee experiences a fatality or serious injury that may result in a fatality, employers and management representatives can face criminal charges in addition to inclusion on the “For Cause” list.  In the event that Oregon OSHA issues a citation, it should be resolved in a way that eliminates the employer’s eligibility for a follow-up inspection under the program by ensuring the triggering criteria are not met.  An employer often will be better served by contesting the citations (especially those to which it has strong defenses) and reaching a settlement with exculpatory language that protects the company.

Conclusion

Oregon OSHA’s Programmed Inspection for Cause represents a critical shift in workplace safety enforcement. Employers must stay vigilant and proactively protect workers from safety and health hazards, address violations promptly, and maintain a strong safety culture. Employers who receive Oregon OSHA citations should work closely with qualified OSHA counsel to ensure that they are not subject to preventable comprehensive follow-up inspections.

The Trump Administration’s fiscal year 2026 budget proposal includes big cuts for OSHA.  The Fiscal Year 2026 Congressional Budget Justification is available here.  The plan includes an 8% overall budget cut to the Occupational Safety and Health Administration (OSHA). The proposed budget would reduce OSHA’s funding from $632.3 million in FY 2025 to $582.4 million in FY 2026.  In the context of rising salaries and costs, this represents a significant decrease in funding.

The most significant reduction in absolute terms is to OSHA’s enforcement programs, with the agency expected to spend $23.7 million less than the previous year’s allocation for enforcement. The budget also proposes a reduction in OSHA’s workforce from 1,810 to 1,587 employees, a loss of 223 full-time equivalent positions. This may be the result of buyouts and retirements, rather than layoffs.

With fewer compliance officers and reduced enforcement funding, we expect the agency to deprioritize programmed inspections and send more letters in lieu of onsite inspections relating to complaints and serious injuries.   While already slow to emanate from the agency, new OSHA standards and standard interpretations may become even less common.

Seyfarth Synopsis: On Thursday, June 5, 2025, OSHA Nominee David Keeling testified that he plans to adopt a more cooperative, proactive approach and pursue a new workplace violence regulation.

As we previously blogged, on February 11, 2025, President Trump nominated David Keeling as Assistant Secretary of Labor for OSHA, pending Senate confirmation. In the first Trump Administration, the OSHA nominee was never put to a Senate confirmation vote and the position was left vacant. 

Mr. Keeling has extensive experience in occupational safety from his tenure at two major logistics companies.  If confirmed in the position, we expected Mr. Keeling to adopt pro-employer positions and modernize workplace safety standards and regulations. The Senate has begun to assess Mr. Keeling’s nomination.  On June 5, 2025, Mr. Keeling testified before the Senate Health, Education, Labor and Pensions Committee, outlining his vision for workplace safety.

1. Modernization of Injury and Illness Prevention

Mr. Keeling outlined an intent to shift the focus at OSHA toward proactive injury prevention (rather than post-accident enforcement). To accomplish this, he advocated “to greatly accelerate the pace of modernization in the area of Regulatory Oversight and Rulemaking” centered on injury prevention and informed design, helping workplaces eliminate hazards before they lead to harm. Mr. Keeling  plans to harness and promote the use of predictive analytics to enhance onsite safety efforts. By utilizing data-driven insights, and moving past OSHA’s existing standards that “have become antiquated or unusable in the face of job modernization or technological advancements,” OSHA and employers could anticipate risks, prevent incidents, and tailor safety measures more effectively.

2. Collaboration and Cooperation within the Industry

Mr. Keeling emphasized expanded collaboration with employers, including with OSHA cooperative programs and industry alliances, to achieve employee safety. “We must move beyond existing silos and self-imposed barriers to achieve real improvement.”  Another priority is to “modernize and update existing Voluntary Protection Programs,” as the current programs provide a platform to work off of but are not enough to obtain successful outcomes in employee safety.

3. OSHA’s Enforcement Transformation

Mr. Keeling again displayed his intention towards relying on technology and data that exist today, which were not available when most OSHA standards were promulgated.  Mr. Keeling wants to enhance areas of workplace safety by harnessing existing data “to greatly enhance onsite safety efforts through predictive analytics.”  Mr. Keeling further stated that OSHA must engage “at-risk employers and employees through proactive risk mitigation and reduction programs before a worksite tragedy has taken place or a fatality has occurred.”

4. Workplace Violence Standard

Mr. Keeling also displayed a commitment towards continuity and proactive regulation of developing areas of workplace safety and health law.  Mr. Keeling committed to issuing a standard aimed at addressing workplace violence, a hazard currently addressed through OSHA’s use of the General Duty Clause (particularly in health care), and highlights OSHA’s growing concerns about exposures to workplace violence and gun violence.

As Mr. Keeling’s nomination progresses, these priorities will shape discussions on the future of workplace safety regulations and enforcement. If confirmed, his leadership could mark a significant shift in OSHA’s approach—moving beyond traditional enforcement into a more modern, dynamic, and prevention-driven era.

By: Adam R. Young, Mark A. Lies, II, and Bret W.Vetter

1. Introduction 

The ubiquity of smartphones and sensitive security cameras have made audio recording in the workplace more common.  Some may be accidental, while other recordings may be intentional attempts document workplace conversations in secret. Both types of recordings can constitute felony violations of state criminal laws, unfair labor practices, and sources of civil liabilities.  State laws on recording conversations — often addressed as criminal eavesdropping and wiretapping— vary significantly. Employers must understand this legal landscape when assessing a range of recoding issues.  

2. One-Party vs. Two-Party Consent States

State laws are divided into one-party and two-party (or “all-party”) consent. 

  • One-party consent states allow a person to record a conversation as long as one party to the conversation (typically the person recording) consents to the recording. Most states (e.g. NY and TX) follow this rule.
  • Two-party (all-party) consent states require that all parties to a private conversation must give their consent for a recording. Failure to have all parties consent to a recording violates the laws.  States like California, Florida, Pennsylvania, and Illinois are two party consent states.

Recording someone without the necessary consent in a two-party state can result in criminal penalties, including fines or imprisonment. In Illinois, eavesdropping is at least a Class 4 felony. Recording can further expose the recorder to civil liability.  In two party consent states, employers generally do not use recording devices in the workplace, such as audio components of security cameras.

3. What Employers Should Do if an Employee Secretly Records Conversations in the Workplace

A. In a Two-Party Consent State:

If an employee secretly records conversations without consent from all participants:

  1. Legal Exposure: The employee may be in violation of the state’s criminal eavesdropping or wiretapping laws, as well as Company policy prohibiting surreptitious recording.
  2. Employer Options
    • Conduct an internal investigation.
    • Take appropriate disciplinary action if allowed by company policy.
    • Consider contacting legal counsel to evaluate civil or criminal action
  3. Limitations:
    • If the recording relates to protected concerted activity under the NLRA (discussed below), employers must tread carefully before taking disciplinary action.

B. In a One-Party Consent State:

If the recording employee is a participant in the conversation, the act is generally legal—even if the other party is unaware. Note that:

  • Workplace policies can prohibit recording of meetings, surreptitious or open. Employers may discipline employees for violating internal rules about recording, especially where confidentiality is at issue.
  • Again, if the conversation relates to protected activity under the NLRA, employers must approach discipline with caution.

4. NLRA Restrictions and Covert Recordings

The National Labor Relations Act (NLRA) protects employees’ rights to engage in concerted activities for mutual aid or protection, including discussing wages, working conditions, or unionizing efforts. 

A. When Covert Recordings Are Protected:

Decisions from the National Labor Relations Board have protected employees who secretly record conversations when the employees are “acting in concert for their mutual aid and protection” , particularly when:

  • The employee is gathering evidence of unlawful conduct, such as harassment, discrimination, or interference with labor rights;
  • The recording is part of a broader effort to address or publicize workplace conditions; or
  • The employee is recording conversations about terms and conditions of employment.
  • The NLRB has upheld disciplinary actions where employees are not acting in concert for their mutual aid and protection or the employer has an “overriding interest” to restrict the recording, for example:
    • The recording violates clearly communicated and lawful company policies.
    • The recording invades significant privacy interests such as recording confidential company information or trade secrets or recording private personal information.

Notably, in an aggressive decision from the National Labor Relations Board during the Biden Administration, the Board determined that the National Labor Relations Act preempts state consent-to-record laws when employees are engaged in protected activity, meaning that an employee’s covert recording in a two-party consent state is protected when “acting in concert for their mutual aid and protection.”

Thus, while the NLRA provides some cover, it does not give a free license to record illegally or in violation of legitimate and lawful workplace rules, Employers must tread lightly with regard to employee discipline for secret recordings about protected activity, particularly with regard to occupational safety and health.

5. Interviewees’ Rights During an OSHA Inspection or Other Government Investigation.

During inspections or investigations by government agencies such as OSHA, EEOC, or the Department of Labor, employees have certain rights, including to refuse participation in interviews and have a representative of their choice present.  Employees have the right to object to audio and video recording of their interviews.  Their only obligation is to provide honest answers.  When employees (or their representatives) object to recording, government investigators typically relent and instead take notes.

But do interviewees and employer representatives have the right to record interviews and interactions with government investigators?

  • In one-party consent states, a person can typically record their conversation with an investigator without disclosing it.
  • In two-party consent states, the investigator sometimes must consent to be recorded. 
  • Recording without consent in a two-party state could expose you to criminal liability—even if the conversation is with a government official.
  • In some states such as Illinois, courts have created an exception to record police and some government investigators. 
  • We generally do not recommend that anyone record government interviews, and instead provide only honest answers to questions within the reasonable scope of the inspection.
  •  Management may take notes on what their interview or comments by an investigator.  Management notes over a more predictable and controlled format to document a conversation.

6. Best Practices for Employers

  1. In two-party consent states, utilize security equipment that does not audio record automatically.
    • Any recordings of videoconferences should be made clear and explicit.
  2. Establish Clear Policies Relating to Audio and Video Recording in the Workplace:
    • Adopt policies that prohibit unauthorized audio or video recording in the workplace.
    • Provide clear and compelling reasons for the policy and include a carve-out for employee rights under the National Labor Relations Act.
    • Communicate these policies through a written handbook and training.
  3. Stay Informed About State Law:
    • Know whether your worksite is in a one-party or two-party consent jurisdiction.
    • You may also need to understand the law where employees travel and record conversations.
  4. Respond Appropriately to Suspected Workplace Recordings:
    • Avoid unlawful retaliation if recordings relate to protected activity.
    • Consult qualified counsel before disciplining employees.
  5. Train Management on NLRA and OSHA Rights:
    • Supervisors should understand employee protections under labor law and during investigations.

7. Conclusion

The recording of workplace conversations—whether by employees, employers, or government agents—implicates a web of state laws and federal protections. Employers must address the issue with sensitivity and awareness of the risks. When in doubt, seek legal guidance to avoid missteps that could lead to criminal liability, civil suits, OSHA violations, and unfair labor practice charges.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health Team.

On May 13, 2025, Cal/OSHA released a new discussion draft of its proposed regulation on Workplace Violence Prevention in General Industry. This latest version updates the July 15, 2024 draft we previously blogged about, and reflects stakeholder input gathered through the advisory committee process.

Key Proposed Revisions

Confronting Suspected Criminals

One of the most significant changes is the removal of the provision that prohibited employers from requiring employees to confront individuals suspected of committing a crime or engaging in workplace violence. In the July 15 draft, section (c)(10)(B) had stated:

“Employers shall not require or encourage employees to confront persons suspected of committing a criminal act or persons suspected of engaging in workplace violence.”

This entire subsection has been struck from the May 13 draft, signaling a shift away from what some stakeholders viewed as an overly restrictive operational mandate. The exception for dedicated security personnel, which had preserved confrontation authority for trained individuals, is no longer relevant.

Clarified Scope and Exemptions

Cal/OSHA has revised several exemptions to provide clearer applicability thresholds:

  • Employer size for exemption from the regulation is now based on total headcount, not fluctuating staffing “at any given time,” addressing concerns about regulatory uncertainty.
  • Certain industries, including security, janitorial, and domestic work, are covered by the regulation, even if the workplaces are open to the public.

Clarified and Expanded Definitions

In response to concerns that the definitions of “engineering controls” and “work practice controls” in the earlier draft could be enforced as mandates, the definitions now include language to emphasize that not all listed controls are required.

However, the updated definition of “workplace violence hazards” creates new concerns for employers. The draft still includes examples of working conditions that Cal/OSHA would presumptively consider hazardous, such as “frequent or regular contact with the public,” “entries to places of employment where unauthorized access can occur,” and adds conditions that are based entirely on subjective determinations, such as “hostile work environments” and “inadequate staffing.”

The new draft also adds a definition of authorized employee representative for purposes of the regulation only, which means “an organization that has a collective bargaining relationship with an employer or an organization acknowledged by a public agency as representing its employees.” Similar to employees, authorized employee representatives are permitted to request records related to hazard identification, evaluation and correction, training, and violent incident logs.

Employee Reporting

The May 13 draft adds a provision that requires employers to provide a non-supervisory reporting channel for concerns about “types 3” workplace violence, violence by an employee against another employee, supervisor, or manager.  Cal/OSHA made this change in response to stakeholder comments that expressed concern about potential suppression of reporting violent incidents when they involved an employee’s supervisor.

Record Retention Rules

Cal/OSHA’s advisory committee reorganized the Recordkeeping section, attempting to simplify the draft rule.  Notably, the May 13 draft clarifies that all records required under the rule, except training records, must be kept for five years. Training records must be kept for at least one year.

Next Steps

The draft will likely continue evolving through Cal/OSHA’s advisory committee process before moving into formal rulemaking. In the meantime, employers should continue to implement their existing Workplace Violence Prevention Programs but be mindful that updates will likely be required when Cal/OSHA’s Workplace Violence Prevention regulation is finalized.

Seyfarth Synopsis: On May 7, 2025, Cal/OSHA released a draft proposal to revise the outdoor and indoor heat illness prevention regulations (8 CCR Sections 3395 and 3396), aiming to implement requirements from AB 2243, signed by Governor Newsom at the conclusion of the 2021-22 legislative session. These proposed changes alter how employers must respond to heat hazards, and introduce new requirements for acclimatization, training, and plan distribution. Public comments are due by July 7, 2025.

Background

Signed into law in 2022, Assembly Bill 2243 directed Cal/OSHA to strengthen protections for outdoor workers exposed to heat and wildfire smoke. AB 2243 originally proposed an “ultrahigh heat” standard but was ultimately revised to focus on two main objectives for outdoor heat:

  1. Requiring Cal/OSHA to consider updates related to acclimatization and the distribution of Heat Illness Prevention Plans (HIPPs).
  2. Updating wildfire smoke protections for farmworkers, particularly the AQI threshold for mandatory respiratory protection. Cal/OSHA has yet to propose draft changes addressing this.

The proposed rulemaking released on May 7, 2025, reflects Cal/OSHA’s efforts to fulfill—and exceed—the bill’s first mandate: updating heat illness prevention standards. Notably, the proposed rulemaking includes changes to both outdoor and indoor requirements (T8 CCR §§ 3395 & 3396, respectively), even though AB 2234 only directed Cal/OSHA to update the outdoor requirements found in §3395.

Key Proposed Changes

Distribution of the HIPP – indoor and outdoor

Employers would be required to distribute their HIPP upon hire, during heat illness prevention training, and at least once a year to every covered employee. However, the draft language limits required distribution to no more than twice annually per employee.

Acclimatization – outdoor

    Current regulations require close observation of employees newly assigned to a “high heat area.” The proposed rule updates that language to specify “high heat area” to mean any area where the temperature equals or exceeds 95°F, aligning it with the existing “high heat” threshold in subsection (e).

    The proposal also introduces new acclimatization requirements for employees assigned to areas with temperatures of 80°F or higher. Employers would be required to either:

    • Implement high-heat procedures found in §3395(e) for five days, or
    • Adopt a phased acclimatization schedule for new employees, modeled after Fed-OSHA’s proposed heat rule:
      • Day 1: 20% exposure
      • Day 2: 40%
      • Day 3: 60%
      • Day 4: 80%
      • Day 5: 100%
    • For current employees returning after a break of more than 14 days, acclimatization would be limited to:
      • Day 1: 50%
      • Day 2: 60%
      • Day 3: 80%

    This phased requirement would not apply if the employer can demonstrate that the employee had consistently worked under similar heat conditions within the past 14 days.

    Acclimatization – indoor

      For indoor environments, employers would have two options for new or returning employees in a work area where: (A) the temperature or heat index, whichever is greater, equals or exceeds 87 degrees Fahrenheit, (B) the temperature equals or exceeds 82 degrees Fahrenheit for employees who wear clothing that restricts heat removal, or (C) the temperature equals or exceeds 82 degrees Fahrenheit:

      1. Apply the “assessment and control measures” section of the indoor heat standard found in §3396(e)(2) (excluding engineering controls found in §3396(e)(2)(A)) for five days, or
      2. Follow the same phased acclimatization schedules described above.

      The same exception applies indoors as outdoors: employers can opt out of acclimatization if the employee consistently worked under comparable heat conditions during the prior 14 days.

      What’s Next?

      Comments on the draft proposal are due by July 7, 2025, and can be submitted to:

      • eberg@dir.ca.gov
      • jlandaverde@dir.ca.gov

      An advisory committee meeting will be scheduled by Cal/OSHA at a later date. AB 2243 requires the Cal/OSHA standards board to “consider” adopting revised rules by December 31, 2025, but does not contain a deadline for the Board to adopt the rules.

      For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health Team.