The highly anticipated “walkaround” rule on clarifying rights to employee representation in Occupational Safety and Health Administration (OSHA) inspections has now been issued. It was published on Friday, March 29, and will be effective on Friday, May 31. The final rule clarifies that, consistent with the current law, employees may authorize another employee to serve as their representative or they may select a non-employee. To permit a non-employee representative to accompany the compliance officer in a workplace, good cause must be shown why the non-employee is reasonably necessary for an effective and thorough inspection to be conducted.
What is “reasonably necessary”? The rule clarifies and is consistent with historic practice: this non-employee representative may be reasonably necessary based on skills, knowledge, or experience. Experience may include knowledge and experience with hazards or conditions in the workplace (or similar workplaces) or language or communication skills to ensure an effective and thorough inspection. The rule expands previous practice by stating that the non-employee representative does not need to have a narrow set of specialty skills but rather can have a variety of skills, knowledge, or experience that could aid the inspection.
OSHA previously had a history of allowing workers to bring in third-party representatives for inspections, until a Texas federal judge ordered it to stop in 2017 (Nat’l Fed’n of Indep. Bus. v. Dougherty, 3:16-CV-2568-D, 2017 WL 1194666, N.D. Tex. Feb. 3, 2017). This decision stated that if OSHA wants to expand workers’ rights to choose representatives then it needs to go through the rulemaking process and not just issue a guidance letter.
This rule, while highly promoted by labor and worker advocates, is causing great concern for employers over privacy and confidentiality in workplaces, with a lot of questions being raised about whether permitting a non-employee representative to be part of an OSHA inspection is determined on a fact-specific basis. Employers must take into consideration issues such as whether proprietary information or processes would be accessible during the OSHA inspection and whether a non-employee representative might stir up union discussions that had not previously been part of the workforce.
Employers do have rights during an OSHA inspection, and how or when to assert those rights is something we recommend discussing with legal counsel. If you have an OSHA inspection for which the compliance officer is willing to agree to a non-employee representative, we recommend contacting someone on the Steptoe & Johnson Workplace Safety team to consider your rights as an employer. It is highly likely that the rule will be challenged in court, and Steptoe & Johnson can keep you updated on its status.
