ILMA Guidance: Employee Representation During OSHA Walkaround Inspections
The Occupational Safety and Health Administration (“OSHA”) updated its “Worker Walkaround Representative Designation Process” Rule (29 CFR 1903.8 (c)) (the “Walkaround Rule”) on April 1, 2024. The new rule, which becomes effective on May 31, 2024, applies to all worksites that OSHA inspects and generally allows non-employee representatives to accompany OSHA inspectors during on-site inspections of those workplaces. The Walkaround Rule is the latest administrative action that is part of President Biden’s promise to be “the most pro-union president in American history.” We expect that the Walkaround Rule, which raises more questions than answers, will be challenged in court by the U.S. Chamber of Commerce and other business groups.
Background
The Occupational Safety and Health Act (the “OSH Act”) authorizes OSHA compliance safety and health officers (“CSHOs”) to conduct unannounced physical inspections of workplaces to determine compliance with the Agency’s regulations. These “walkarounds” may be triggered either by OSHA at its discretion or by employee or third-party complaints. OSHA CSHOs are not obligated to provide notice before showing up at a workplace to conduct a walkaround.
OSHA’s existing regulations allow employers and employees to each appoint a representative to accompany and aid OSHA CHSOs during walkarounds. The employee representative must “be an employee(s) of the employer,” unless, in the judgment of the CSHO, “good cause” is shown as to why a third-party is “reasonably necessary to the conduct of an effective and thorough inspection of the workplace.” Employees may demonstrate “good cause” and “reasonable necessity” by demonstrating that the third-party has skills and knowledge (e.g., an expert in safety engineering or industrial hygiene) relevant to OSHA’s investigation.
In 2013, OSHA under the Obama administration issued an interpretation letter – known as the “Fairfax Memo” – that allowed employees to authorize union or community organizer representatives to act on their behalf during a walkaround. The Fairfax Memo was challenged in court by the National Federation of Independent Business, but the litigation subsequently was withdrawn in 2017, when the Trump administration rescinded the interpretation letter.
The New Walkaround Rule
The new Walkaround Rule can be broken down into five areas: (1) how employees authorize walkaround representative(s); (2) how many employee walkaround representatives are permitted to accompany the CSHO; (3) whether advance notice of inspections will be provided; (4) how delays may impact inspections; and (5) how OSHA intends to respond to third-party interference or disruptions during a walkaround.
The new Walkaround Rule allows two or more employees to authorize non-employee third-party representatives, including labor unions or community organizers, to accompany an OSHA CSHO during a facility inspection.[1] With respect to how employees will authorize representatives, OSHA stated, “there is no single or required process by which employees can designate a walkaround representative,” and “there is no single way for employees to inform OSHA that they have a walkaround representative (whether that representative is an employee or a third party).” Employees and employers may object to a proposed representative, but CSHOs have the ultimate authority to resolve these disputes. Strikingly, the new rule does not provide any guidance to CSHOs how to do so.
OSHA has significantly expanded the scope of individuals considered “reasonably necessary to aid in [a walkaround] inspection.” The two examples of “reasonably necessary” individuals from the existing rule – that is, safety engineers and industrial hygienists – were dropped by the Agency, and the new rule now broadly states that non-employees may be reasonably necessary because of “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.”
This change in the new Walkaround Rule is concerning. For example, in recent congressional testimony, OSHA acknowledged that it was promulgating the new rule without any data on CSHOs’ current use of representatives during facility walkarounds. In that testimony, OSHA Administrator Doug Parker said that the Agency does not track “details on the circumstances under which OSHA has permitted or excluded ‘a third party who is not an employee of the employer’ under 29 C.F.R. § 1903.8(c) from accompanying inspectors during FY 2019-2023.” OSHA, therefore, lacked specific information on the efficacy of current inspections practices and, by extension, the need for the new rule.
On how many employee walkaround representatives are permitted, OSHA says that the CSHO can permit as many representatives as the CSHO deems necessary — “the CSHO may permit additional employer representatives and additional authorized employee representatives if the additional representatives will further aid the inspection.” The only limitation provided is where “the CSHO determines that multiple representatives would not aid the inspection or if the presence of multiple representatives interferes with the inspection.” Accordingly, discretion is left entirely to the CSHO.
On the question of advance notice of inspections, OSHA states in the new Walkaround Rule that the “OSH Act generally forbids advance notice of OSHA inspections,” even though certain exceptions are provided. In contrast, however, OSHA does not guarantee advance notice of inspections in the final rule to either employers or third-party employee representatives. According to the Agency, whether an exception applies will depend entirely on the needs and circumstances of the inspection.
Similarly, OSHA dismissed concerns from commenters about potential delays resulting from the expansion in who can participate in a walkaround. OSHA explains, “[t]he issues that have been raised are issues that CSHOs have long addressed in conducting inspections, and CSHOs are experienced and adept at conducting inspections without delay and in a reasonable manner . . . OSHA will use its authority under 29 CFR 1903.8(b) to resolve potential disputes about third-party representatives expeditiously.”
OSHA also discounted commenters’ concerns related to how OSHA intends to respond to third-party interference or disruptions during a walkaround. OSHA claims these concerns are “unfounded,” noting that CSHOs have extensive experience conducting inspections and handling any interference or disruptions that may arise. The Agency adds that, during inspections, “CSHOs will set ground rules for the inspection to ensure all representatives know what to expect.”
The new Walkaround Rule does include some limits on an employee representative’s behavior during inspections. A CSHO may prevent individuals from participating in an inspection if their conduct interferes with the walkaround or unreasonably disrupts operations. Specifically, OSHA’s new rule and accompanying FAQs specify that employee representatives may not:
- Enter areas of the workplace that contain or could reveal trade secrets.[2]
- Take photographs and measurements (unless permitted by a collective bargaining agreement).
- Prevent the OSHA inspector from carrying out responsibilities, including taking photos, video recordings, monitoring, and interviewing.
- Discuss matters unrelated to the inspection with employees.
- Wander away from the inspection.
- Engage in solicitation or distribution of materials.
- Observe the inspector’s interviews of employees unless the employee being interviewed specifically requests the employee representative attend.
However, the third-party representative may wear clothing promoting a union, provided such clothing does not interfere with the walkaround.
OSHA provides in the new Walkaround Rule that “the CSHO has authority to deny accompaniment to an employee walkaround representative who is disrupting the inspection.” However, the Agency does not state whether it would discipline a CSHO for failing to exercise such discretion appropriately or for the CHSO’s negligence in the process. OSHA instead notes, “[b]ecause an authorized employee representative does not have uncontrolled access to the employer’s property and the CSHO is in control of the inspection, the risk of misconduct, damage, or injury appears limited.”
In response to comments, OSHA said it generally is not liable for the cost or conduct of authorized employee representatives, who are not themselves officers or employees of the Federal government.
Employers may be required to provide personal protective equipment (PPE) to non-employee, third-party representatives during a walkaround. If an employer has a policy requiring visitors to wear PPE in the workplace and has extra PPE available for those visitors, OSHA may consider an employer’s refusal to provide PPE to the non-employee, third-party representative as interference with the walkaround.
Additionally, OSHA has provided a non-exhaustive list of examples of activities that may deemed by the Agency to be interference during a walkaround by a non-employee, third-party representative:
- Preventing the CSHO from taking essential photographs, video recordings, or surface or air monitoring.
- Preventing the CSHO from interviewing employees in private.
- Resisting or interfering with employee or employer representative involvement in the inspection.
- Failing to stay with the CSHO during the walkaround, such as wandering away from the inspection or going into unauthorized areas.
- Taking unauthorized photographs or videos.
- Solicitation, such as handing out union authorization cards.
- Distributing or handing out any material without the CSHO’s review and consent.
- Failing to comply with the ground rules of the inspection.
Commentary
The new Walkaround Rule’s broad definition of “reasonably necessary” provides unions with access to both unionized and non-unionized workforces. OSHA admits in the preamble to the final rule that it will allow a wide variety of third parties to represent employees, including “those from unions or worker advocacy groups,” without majority employee approval. As noted above, the new rule contains no minimum employee threshold. Instead, OSHA CSHOs are given sole discretion to allow a union representative to accompany them on a walkaround. Equally troubling is the new rule contains no guidance on how the CSHOs should manage competing requests regarding employee representatives.
Accordingly, employers should be prepared for union organizers’ use of OSHA’s new rule as an opportunity to infiltrate workplaces they normally would not be permitted to enter. Employers likely will see more complaints by labor organizers through OSHA’s complaint process, as well as unfair labor charges.
ILMA and other business groups told OSHA during the rulemaking process that allowing a non-employee access to employers’ private property during a walkaround can raise privacy and trade secret concerns. OSHA’s existing regulations permit employers to identify areas in the workplace that contain or might reveal a trade secret and request that a non-employee representative be prohibited from entering. However, the new rule does not contain any mechanisms for resolving disagreements between employers and representatives.
Please note that OSHA’s FAQs specify that employers may require third-party representatives to sign a reasonable confidentiality agreement, with coverage limited to the use of confidential information learned in the inspection, but only if the employer requires all visitors to sign the same agreement. Employers, therefore, should review their policies relating to visitors and consider requiring all visitors to sign the same confidentiality agreement.
While it may take some time for legal challenges to the new Walkaround Rule to work their way through the courts, employers should consider taking the following steps:
- Review OSHA’s FAQs on the new walkaround rule.
- If an OSHA inspector visits the facility, immediately contact counsel. Employers have the right to representation during the walkaround. OSHA should afford both employer and employee representatives, including third-party representatives, a reasonable amount of time to travel to the inspection site, although typically the inspection should not be delayed more than an hour.
- Object to the presence of a third-party employee representative if appropriate. Employers and employees both can object to the presence of the other side’s authorized representative. The CSHO will evaluate any objections and decide.
- Ensure the third-party employee representative is only participating in the opening conference, the walkaround inspection, and the closing conference unless an employee specifically requests the presence of the representative in her/her private interview.
- Designate and train employer representatives to handle OSHA inspections, and ensure these individuals have a solid grasp of the rights and limitations of employee representatives.
- Identify and regularly update a list of areas that contain trade secret information or could reveal trade secret information and exclude non-employees from those areas.
- Consider requiring all visitors (including third-party employee representatives) to execute nondisclosure and/or confidentiality agreements.
[1] No set number of employees are required to authorize an employee representative. However, OSHA states in its FAQs that, in workplaces with more than one employee, more than one employee is needed to authorize the representative. The OSH Act does not require that a specific number or percentage of employees authorize an employee representative, and OSHA declined to do so through this rulemaking.
[2] OSHA said that “employers maintain the right to request that areas of their facilities be off-limits to representatives who do not work in that particular part of the facility.”