The U.S. District Court in the Northern District of Texas refused to dismiss a challenge to Occupational Safety and Health Administration's (OSHA) 2013 Fairfax Memorandum, which allowed for the participation of union representatives in OSHA safety inspections at workplaces where the union did not represent the workers. The Memorandum addressed Section 11(c) of the OSH Act which prohibits an employer from discriminating against an employee because the employee reports an injury or illness. The Memorandum was intended to provide guidance to both field compliance officers and whistleblower investigative staff on several employer practices that can discourage employee reports of injuries and violate section 11(c), or other whistleblower statutes.

On Monday February 13th, OSHA filed an Unopposed Motion For Extension of Time, requesting an additional 30 days to file an answer to the complaint. OSHA’s lawyers explained that "[t]he extension on the deadline for defendants to answer is necessary to allow incoming leadership personnel at the United States Department of Labor adequate time to consider the issues."

While the outcome of the new leadership's review is still not known.  It is likely that the incoming leadership at the Department of Labor may abandon the defense of this legal challenge and further may choose to return to the interpretation of the OSHA regulation allowing for an employee representative, but not a union representative from an outside union .