On April 1, 2024, the Department of Labor published its final rule regarding worker walkaround representative designation during an Occupational Health and Safety Administration (OSHA) inspection. This new rule modifies OSHA regulations concerning whether third parties (not employees) may be permitted to attend an OSHA inspection (often called a walkaround).
The prior rule stated as follows:
“The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.” 29 CFR 1903.8(c) (1971). This paragraph, which primarily addresses employer and employee representatives during inspections, had not been revised since it was adopted in 1971.
So, the only way a third party could participate was if the Compliance and Safety Officer (CSHO) finds the third party is “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” The examples given were limited to scientific or professional qualifications.
The new rule alters the “reasonably necessary” part of the rule dramatically.
OSHA now asserts in the new rule that the OSH Act provides “a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace under subsection (a) for the purpose of aiding such inspection.” While OSHA had said in the past that, generally, this employee representative must be limited to employees who are employed by the employer, OSHA now has stated that the OSH Act allows a “third party who is not an employee of the employer” to be the representative when “good cause” has been shown.
The executive summary of the final rule explains that there it has a “narrow purpose.” The purpose is first, to clarify that the OSH Act allows for the representative to be an employee or a third party. Second, the purpose of the new rule is to identify that the third party authorized by the employee “may have a variety of skills, knowledge, or experience that could aid the CSHO inspection.”
This rule is a major expansion of “representative” rights, which could potentially allow any third-party to be permitted to attend a walkaround. This creates a tension with employer property rights to keep third parties off their property.
The most common third party expected to benefit from this rule are labor unions. OSHA has held the position that a third-party may be a union representative, since at least 2013 when it issued a letter of interpretation stating that employees could designate a union person, even when the workforce is unrepresented, as their employee representative during a walkaround. But, until now, this assertion was in conflict with the OSHA rule.
Many who opposed the rule argued “that the purpose of this rule is to facilitate union organizing.” Others argued it could allow even competitors to participate in an inspection. OSHA dismissed employer concerns about inviting competitors in, calling it “highly improbable.”
This final rule highlights the growing relationship between the National Labor Relations Board (NLRB) and OSHA. The two agencies entered into a Memorandum of Understanding on October 31, 2023, to “facilitate interagency cooperation and coordination” between the agencies by “establishing a process for information sharing and referrals, training, and outreach between” them. The final rule is going to be favorably received by unions and the NLRB.
Employers who are wary of an entirely unrelated third-party coming onto the property to attend a walkaround may take shelter under a recently decided United State Supreme Court case. In Cedar Point Nursery v. Hassid. In that case the Court found that a California law allowing labor organizations the “right to take access” to agricultural employers property was an illegal taking. As the Supreme Court stated in that case, "[t]he right to exclude is 'one of the most treasured' rights of property ownership."
Cedar Point is a union organizing case, and it’s holding is very likely to be persuasive to a federal court in the event OSHA insists on including a union that does not represent employees of the employer during a walk around inspection. It may be a closer call, where the union already represents the employees at the workplace. As a practical matter, if the union has not been elected by employees, and the employer refuses entry, where OSHA is asking to include a union (or other party with no particular expertise to aid in the inspection), OSHA is likely to back down in most cases. OSHA’s priority is to inspect in an expedient and efficient manner, rather than go to court simply to get the third party into the workplace. Most inspectors do not have the desire to have a third party looking over their shoulder.
If, after politely declining entry of a third party, OSHA continues to insist on including them, an employer has a right to demand a warrant. It is best to contact qualified legal counsel in that case.
Employers should be vigilant in training their employees and supervisors about their rights during an OSHA inspection. Please reach out to your Michael Best attorney to learn more.