OSHA Walkaround Rule Provides a Potential New Avenue for Labor Union Access to Private Workspaces

Rob Thomas, Of Counsel

On April 1, 2024, the Occupational Safety and Health Administration (“OSHA”) published its final rule regarding who may be designated to represent employees during physical worksite inspections conducted by OSHA Compliance Safety and Health Officers (“CSHOs”), colloquially referred to as the “Walkaround Rule.”  The new Walkaround Rule, to be codified at 29 C.F.R. § 1903.8 and effective May 31, 2024, expands the scope of who may be designated as an employee representative during OSHA inspections. 

The Occupational Safety and Health Act (“OSH Act”) and the Prior Walkaround Rule

The OSH Act expressly contemplates that whenever an OSHA CSHO conducts a physical inspection of an employer’s worksite, both the employer and its employees have the right to have a representative present to aid and assist the CSHO with its factfinding and investigations.[1]   

Since approximately 2017, the OSH Act’s regulations discussing employer and employee representatives and the Trump Administration’s enforcement of the same have clarified that the employee representative must also be an employee of the employer.  Under the prior Walkaround Rule, a non-employee could act as the employee representative if the CSHO found good cause to support that the non-employee representative’s participation was reasonably necessary to conduct an effective and thorough inspection of the premises, and the Walkaround Rule listed “industrial hygienists” or “safety engineers” as examples of third parties who might be appropriate employee representatives.

 The New Walkaround Rule, Effective May 31, 2024

The revised Walkaround Rule does away with the requirement that the employee representative to a CSHO’s inspection must also be an employee, and simply states that the representative “may” be an employee of the employer or a third party.  The new rule still contemplates that, if the employee representative is a third party, the CSHO must exercise its judgment as to whether good cause has been shown as to why the third party’s participation is reasonably necessary, but rather than list specific categories of persons who likely have occupational safety expertise (industrial hygienists or safety engineers), the new Walkaround Rule contemplates that a third party may be useful in other, more vague ways.  Specifically, a CSHO may find good cause to permit the third party’s participation based on that person’s “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.” 

Under both the former and new Walkaround Rule, there is no formal process for an employer to object to the employees’ designated representative, and the CSHO retains the discretion to resolve all disputes as to who is the authorized representative for both the employer and the employees, as well as whether sufficient good cause has been demonstrated to permit a non-employee to act as the employee representative.  But, under the new Walkaround Rule, employers may still limit access to work areas containing trade secrets and may still require employee representatives to sign reasonable confidentiality agreements, provided those requirements apply to other visitors at the worksite.

Otherwise, if a CSHO finds good cause to permit a third-partys designation as the employee representative, but the employer nonetheless refuses to permit a third-party employee representative to accompany the CSHO on its inspection, the employer may stop the inspection or otherwise limit it to areas which the employer does not find objectionable, but this will likely compel the CSHO and OSHA to seek an inspection warrant to complete the inspection over the employer’s objections.[2]  The employer could then attempt to seek declaratory relief in court to prohibit or limit the third-party representative’s involvement, or move to quash or limit the inspection warrant itself. 

Employer Concerns and Considerations

Prior to being finalized, the new Workaround Rule drew thousands of comments and criticisms from employers and employer groups, including the U.S. Chamber of Commerce.[3]  The chief criticism levied is that the new Workaround Rule will facilitate access to private, non-union workspaces by union organizers that they otherwise would not enjoy under the National Labor Relations Act, since employers are otherwise free to prohibit union organizers and other non-employee advocacy groups from accessing private property.  Critics of the new rule also note that the new standard for good cause for third-party representatives is too broad and nebulous, especially considering that a person’s “communication skills” could provide sufficient cause for an OSHA CSHO to permit the person to act as the employees’ walkaround representative, and the new rule provides no meaningful way for employer’s to contest a representative’s qualifications or expertise when acting as the employee representative—apart from stopping the inspection and compelling the CSHO and OSHA to return with a warrant.

It remains to be seen what effect the new Walkaround Rule will have on union organizing efforts in non-union workspaces, but employers should be aware of the parameters of the new Walkaround Rule and should be prepared to object to a third party’s participation if the person disrupts the orderly inspection of a CSHO.  Campbell Litigation remains available to assist with these and other labor and employment-related matters and legal developments as they arise.

[1]29 U.S.C. § 657(d). 

[2]29 C.C.R. § 1903.4.

[3] https://www.uschamber.com/employment-law/u-s-chamber-comments-on-osha-worker-walkaround-rule.