Department of Labor says this includes union reps, even at non-union sites

Effective May 31, 2024, OSHA will have additional authority to permit third parties, including union representatives, to join OSHA inspectors during onsite walkaround inspections at employer facilities, including non-union facilities. Under the U.S. Department of Labor, Occupational Safety and Health Administration's (OSHA) newly revised "walkaround" rule, an OSHA inspector need only have "good cause" to believe that employees have authorized a given third party to be their representative and that the third party's presence is "reasonably necessary" for an effective onsite inspection. OSHA inspectors are further authorized to resolve any dispute as to whether a third party is an authorized employee representative and whether there is good cause for the third party to join the inspection, and OSHA inspectors may be in communication with employees and third parties in advance of any inspection. Employers should take steps now to prepare for potential OSHA demands that inspections include these new employee representatives.

The New Rule Reinstates a Prior, Union-Friendly Position

A standard feature of any OSHA onsite inspection is an inspector's walkaround of the workplace. OSHA regulations, codified at 29 C.F.R. § 1903.8, permit a representative of the employer and "a representative authorized by [the employer's] employees" to join OSHA inspectors during their onsite walkaround inspection. Previously, employee representatives were required to be employees of the inspected employer, with the exception that Section 1903.8(c) permitted the inspector to allow an employee-authorized representative to be non-employee third parties if the inspector believed the non-employee's presence was "reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace." However, the exception indicated that reasonable necessity turned on the third party's technical expertise, such as that held by industrial hygienists or safety engineers. Seeking to expand the scope of appropriate third parties, including to encompass union representatives in non-unionized settings, the Obama Administration in 2013 issued a letter of interpretation authored by OSHA Deputy Assistant Secretary Richard E. Fairfax (the "Fairfax Memo") opining that OSHA regulations permitted employees without a collective bargaining agreement to designate a person affiliated with a union or community organization as a representative during an OSHA onsite investigation. This position was challenged as improper rulemaking and contrary to OSHA's statutory authority in a 2016 federal lawsuit, and the Trump Administration ultimately rescinded the Fairfax Memo in 2017.

What the New Rule Does

OSHA's final rule resurrects the positions advocated in the Fairfax Memo, including with regard to third-party union representatives and community organizers joining walkaround inspections as employee representatives. Under the new rule, a third party may join an OSHA inspector during a walkaround inspection of an employer's facility as an "employee representative" if (1) the third party is authorized by employees; and (2) the OSHA inspector believes there is good cause for the authorized representative to join the physical inspection of the workplace.

Lack of Clarity as To How To Determine Whether an Employee Representative Is "Authorized"

Employees may authorize a third party as an "employee representative" that OSHA may include in its walkaround inspection of an employer's facility. The rule, unfortunately, does not clarify how OSHA will determine whether a proffered third party is "authorized" by employees, and Assistant Secretary of Labor for Occupational Safety and Health Douglas Parker has stated that an employee vote is not required, raising the specter that a small number of employees may attempt to force a third-party representative that the majority of the workforce would oppose. This concern is amplified by OSHA regulations giving the OSHA inspector authority to resolve any dispute as to the identity of the employees' authorized representative without any framework to do so.

Broad Scope of "Good Cause" for a Third Party To Join a Walkaround Inspection

A third party cannot join an inspection by dint of employee authorization alone. An OSHA inspector must find good cause why a proffered third party's inclusion is reasonably necessary for an effective and thorough walkaround inspection. However, OSHA appears to intend a broad scope as to what can make a third party's assistance reasonably necessary. The new rule notes that a third party may be reasonably necessary "because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills." The new rule's preamble suggests that union representatives, community organization representatives (including their attorneys), and even former employees may satisfy the new rule's requirements. This raises significant and obvious concerns for employers, including that unions may use or encourage abuse of OSHA inspections to support union organization efforts, and that disgruntled current or former employees may abuse the OSHA inspection process to obtain free discovery in support or advance of litigation.

What Should Employers Do?

First, employers should consider establishing or reviewing the nature of their workplace safety committees. Before OSHA can decide whether any third party can join an onsite inspection, the third party has to be authorized by employees. OSHA's Field Operations Manual states that an OSHA inspector will look to the employees' union representative or a workplace safety committee (if there is one) to determine the employees' representative for the onsite inspection walkaround. Non-unionized employers with active workplace safety committees may be able to rely on those committees as the source of employee representative authorization, especially in facilities with large workforces.

Second, employers should assess how they will respond to an OSHA demand for a walkaround inspection with a third-party representative that the employer feels is inappropriate. Any such response will require careful consideration of numerous factors, including arguments to raise with the OSHA inspector, available limits on what third parties can do or access during a walkaround inspection (such as trade secrets), potential labor implications, and the effects of rejecting a third party that an OSHA inspector deems reasonably necessary for the walkaround inspection (which can include a warrant and civil contempt proceedings).

Third, employers should determine whether and when OSHA's new rule will apply to them. The new rule goes into effect on May 31, 2024, with regard to private employers in states where OSHA directly enforces safety and health requirements. However, about half of U.S. jurisdictions, such as California, Washington, and Virginia, have adopted state safety and health plans that are enforced by state agencies, not OSHA. OSHA's new rule will not apply in those states. Instead, OSHA will require each of those states to adopt OSHA's new rule by October 1, 2024, unless the state's existing requirements are at least as effective in protecting workers as the Federal rule.

OSHA's new rule will be effective on May 31, 2024, and has the potential to be extremely disruptive to employer operations.

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