A new rule from the US Occupational Safety and Health Administration (OSHA) affords unions, labor activists, and other third parties access to private worksites during workplace inspections.

On April 1, 2024, OSHA published its Worker Walkaround Representative Designation Process Rule, which is set to become effective on May 31, 2024. The new rule empowers OSHA Compliance Safety and Health Officers (CSHOs)—also called OSHA inspectors—to allow union representatives, community activists, or any other third party to join them during an onsite inspection—anyone whom the inspector deems to be “reasonably necessary” for conducting an inspection. This is true even if the third parties are not employees of the employer and even if the worksite is not unionized.

The “Walkaround Rule” delivers on President Joseph Biden’s promise to be “the most pro-union president in American history.” As such, employers may see an increase in OSHA complaints and related inspections, should unions leverage this new tool in their organizing efforts.

THE NEW RULE

Broadly speaking, the OSH Act and its implementing regulation, 29 CFR § 1903.8, allows a representative of both an employer and employee to accompany an OSHA inspector during a physical “onsite” inspection of an employer’s worksite. The current (soon to be old) version of Section 1903.8(c) plainly limited employee representatives to current employees, stating that the “representative(s) authorized by employees shall be an employee(s) of the employer.” The new rule does an about face, stating that “representative(s) authorized by employees may be an employee of the employer or a third party.”

The new Walkaround Rule also eliminates the two examples of individuals who might be “reasonably necessary” to joining an inspection—an industrial hygienist or a safety engineer. Instead, the rule broadly states that nonemployees may join inspections “if, in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (including but not limited to because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills).”

This new language broadly opens the door for seemingly anyone requested by an employee to join an OSHA inspection. OSHA’s Preamble to the Final Rule reveals the breadth and scope of this new language. The preamble explicitly states that OSHA will allow for “a wide variety of third parties,” including “those from unions or worker advocacy groups.”

As shown through examples provided by OSHA, anyone who could make an employee feel more “comfortable” during an inspection might now be included. OSHA’s preamble focuses on individuals with “cultural competence and prior relationships with workers” who might “allow the employees to be more at ease or forthcoming during the OSHA inspection.”

PREAMBLE & CHANGES SINCE THE INITIAL PROPOSED RULE

Our previous LawFlash covered OSHA’s Notice of Proposed Rulemaking (NPRM) issued in August 2023, and the history of this rule itself. The final rule and its preamble do little to address comments submitted by the employer community following the NPRM—such as those from the US Chamber of Commerce. [1] However, OSHA made two changes that are worth noting.

First, the final rule provides for third-party “accompaniment” rather than “participation.” According to OSHA, this change was intended to address commenter concerns that “the use of the word ‘participation’ in the NPRM suggested the employee representative had a role in conducting OSHA’s inspection.” Consistent with that justification, OSHA further sought to delineate the role of the third-party representative, noting that they are permitted to:

• accompany the CSHO during the walkaround inspection;
• attend the opening and closing conferences;
• informally ask clarifying questions during the walkaround; and
• attend private employee interviews conducted by the CSHO if the employee requests their presence.

This explanation may belie the true reason for the change from “participation” to “accompaniment,” which was made in response to commentators’ arguments, including the Chamber’s, that extending Section 1903.8 to third parties violates the property rights of employers under the Fifth Amendment. Now, OSHA claims in the Final Rule, that since the third parties are only accompanying CSHOs, it remains a reasonable government search conducted under the Fourth Amendment.

Second, the final rule adds “communication skills” as a justification for third-party accompaniment. This addition appears to potentially broaden the scope of third parties who may be permitted to accompany the CSHO. In explaining what “communication skills” might justify third-party accompaniment, OSHA references those who may have “prior relationships with workers” or who can otherwise “facilitate communication between workers and the CSHO.” OSHA does not provide any limits as to when a third party may or may not be able to “facilitate communication” in this way.

In addition to the new rule, OSHA published guidance in the form of Frequently Asked Questions (FAQs).

CONFLICT WITH LABOR LAW

OSHA’s new Walkaround Rule disregards federal labor relations policy and the need for a union to be lawfully recognized through procedures set forth in the National Labor Relations Act (NLRA). Those procedures require that a union be selected by the majority of employees in an appropriate unit before it can be recognized as an “authorized representative.”

Ignoring the importance of the NLRA over union representation matters, OSHA’s new rule contends that “the OSH Act contains no requirement for majority support” and that “the NLRA’s requirements for majority support would not apply to a union representative accompanying OSHA in a non-union workplace as this representative would not be engaged in collective bargaining.” In addition to creating conflict with the NLRA, OSHA’s interpretation appears to contradict Section 8(e) of the OSH Act, which requires a CSHO to “consult with a reasonable number of employees concerning matters of health and safety in the workplace” where “there is no authorized employee representative.”

Further, the final rule does not contain guidance on how a CSHO should grant or manage requests by employees—including potential competing requests—for an “authorized representative.”

Implicitly rejecting the principles of workplace democracy imbedded in federal labor policy, OSHA leaves the employee representation issue to the sole discretion of the CSHO—while at the same time claiming in the preamble that “[n]eutrality has been OSHA’s longstanding policy, and OSHA rejects arguments that the final rule displays favoritism towards unions or will improperly pressure CSHOs to allow authorized representatives.” Disavowing any need, the new rule explicitly refuses to adopt procedures or criteria for how a CSHO should handle such requests.

IMPLICATIONS FOR EMPLOYERS

Organizing Efforts

OSHA’s new Walkaround Rule opens the door for unions and other third parties to access private employer worksites. This includes allowing union representatives and labor activists access to nonunionized worksites, access they would otherwise be denied under federal labor law. Although OSHA asserts its “neutrality” with respect to labor disputes, this rule is likely to be used as a tool by labor organizers to promote their goals and reach unrepresented employees.

OSHA’s complaint form asks whether the individual filing the complaint is an authorized representative of employees. CSHOs are also instructed to determine whether employees have authorized a walkaround representative as soon as possible after arrival at the facility.

Employers should expect and prepare for more complaints by labor organizers and others who seek to gain access to employers’ private property. Because these “representatives” likely will have motives beyond the inspection itself, the rule is primed to cause disruption at employer worksites across the nation.

Privacy

Employers should also be aware of how the rule could impact access to company confidential, trade secret, and proprietary information where nonemployees, who could even be employed by competitors, would be able to participate in worksite inspections. Although OSHA posits that employers may request that limits be placed “in any area containing trade secrets,” such a request may trigger additional disputes with the CSHO and/or the third-party representative over what constitutes a trade secret and whether such a restriction is appropriate—disputes that the CSHO may not be well-situated to resolve.

Similarly, the rule may leave trigger questions under employee privacy laws. While the CSHO is responsible for keeping the third party within the scope of the inspection, employers should be vigilant, including by ensuring that the third-party representative is not leaving the OSHA inspector’s supervision or conferring with employees on their own.

In addition, third-party representatives are also not permitted to sit in on employee interviews (unless the employee specifically requests it). Employers should be aware of this restriction and enforce it, such as by establishing a waiting area for the third party during interviews.

In preparing for the rule’s impact and future inspections, employers should consider speaking to a lawyer about whether to require third parties to execute nondisclosure agreements to protect trade secrets or confidential information viewed during an inspection and to address any harm resulting from their disclosure.

According to the FAQs, an employer “may require a third-party representative to sign a reasonable confidentiality agreement, limited to the use of the confidential information learned in the inspection, on the same terms as it requires of other visitors.” Furthermore, employers may wish to identify, even prior to the rule’s effective date, the areas it contends that third parties are not allowed to enter on the basis that they contain trade secrets.

Onsite Safety & Liability for Onsite Conduct

Another issue to consider is whether to have personal protective equipment (PPE) available for third parties or to require them to supply their own PPE. In its Preamble to the Final Rule, OSHA explicitly disclaims liability for third-party conduct, stating that “OSHA generally is not liable for the conduct of authorized employee representatives, who are not themselves officers or employees of a Federal agency.”

The FAQs state that third-party representatives will generally need to comply with employers’ established lawful rules and policies, as long as those rules and policies apply equally to all visitors.

In light of this, employers should discuss with their legal counsel how to best limit liability if these third parties act inappropriately, share trade secrets or confidential information, get hurt, deviate from the mission of the inspection, defame the employer, or harm persons or property.

‘On-The-Spot’ Decisions

This new rule gives significant power both to OSHA inspectors and individual employees. Through the rule, OSHA expects its inspectors to make a host of on-the-spot decisions, including whether a third party is “reasonably necessary” in the first place. The Preamble to the Final Rule states that “in a workplace with more than one employee, more than one employee would need to authorize the walkaround representative…”

So, the CSHO may have to make this decision based on multiple and possibly competing employee positions—without the benefit of any voting system or majority rule. An individual employee may request that anyone act as their “representative”—seeking to elevate that individual’s importance even if the person does not “represent” most employees onsite.

An employer may want to verify that the CHSO is not allowing third-party participation merely upon the request of a lone employee. Even once a party is allowed to participate in the inspection, issues may arise during the inspection, and employers may need to raise concerns regarding the actions of a third party to the CSHO or Area Director (e.g., the union representative is handing out organizing cards).

Inspectors will be expected to navigate competing political tides (both national and onsite), monitor third-party representatives (who according to the preamble “must stay near the CSHO”), and decide when a third party has overstepped its bounds by engaging in organizing or any other inappropriate conduct (e.g., the FAQs state both that the third-party representative “generally does not aid the inspection by taking photos and measurements” but also that “[w]earing clothing with a union name or logo would not ordinarily interfere with the inspection”).

CONCLUSION

All of this leads to the ultimate question for employers: how, if, and when to challenge an OSHA inspector’s “good cause” finding that a third party is a “reasonably necessary” employee representative that would aid the inspection.

Employers do have options if a third party attempts to access their worksite, including demanding a search warrant that allows the third party to participate in OSHA’s inspection or seeking to quash any search warrant issued. Even during the course of an inspection, if the third party strays from the inspection, an employer may decide to refuse to permit the inspection to continue without a warrant.

Employers should consider discussing these issues with their lawyer before the rule takes effect, and in the face of an inspection, once the rule is effective.

The rule will take effect on May 31, 2024, though the employer community is expected to bring legal challenges against the rule before then.

HOW WE CAN HELP

Morgan Lewis lawyers are poised to help employers navigate the impact of the rule on their workplaces, including creating plans prior to its effective date and, once effective, in evaluating legal options if OSHA utilizes this new rule in inspections.

[1] Morgan Lewis represented the US Chamber of Commerce in this matter.

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