OSHA Walkaround Rule Raises Unionization and Constitutional Concerns for Employers

Employers need to be aware that such union participation during inspections could lead to increased disruption at their work site. Furthermore, allowing a union representative to participate in inspections may open the door for individuals with hidden agendas to gain access to the work site and attempt to obtain confidential information or raise unrelated environmental concerns. Employers should start preparing their management and supervisors for the changes to come.

Summary of the “Walkaround Rule”

The new “Walkaround Rule” is consistent with President Biden’s promise to be the most “pro-union president in history.” Employees have always been allowed to designate authorized representatives to join OSHA inspections. Under Section 8(e) of the Occupational Safety and Health Act (OSH Act), employees and employers have the right to have a representative accompany an OSHA officer during inspections, otherwise referred to as “walkarounds.” The previous rule for OSHA inspections required that the representatives “be an employee of the employer.” However, there were exceptions that allowed for the presence and assistance of a third party when “reasonably necessary” in order to conduct an effective inspection. Examples of third-party representatives that were permitted included industrial hygienists or safety engineers.

According to OSHA’s guidance, the revisions in the rule clarify that:

• The representative(s) authorized by employees no longer has to be an employee of the employer and may be a non-employee third party;
• Employee’s options for third-party representation during OSHA inspections are not limited to persons with formal credentials such as an industrial hygienist or safety engineer;
• A third-party representative authorized by employees may be reasonably necessary for an effective and thorough physical inspection of the workplace by virtue of their knowledge, skills, or experience. This can include, for example, technical knowledge or practical experience about the processes and hazards of the type present in the workplace, or language and communication skills that facilitate the gathering of information from employees.

Under the new rule, the scope of who may participate in an OSHA inspection has been dramatically expanded, as the new rule allows for employees to designate a non-employee, or third party, as their representative during such inspections. OSHA argues that this change to the rule is “consistent with [its] historic practice,” and that the new rule simply “clarifies that a non-employee representative may be reasonably necessary based upon skills, knowledge or experience to assist with the inspection.” Thus, the only limitation to the use of third parties is that they must be reasonably necessary and not utilized for an arbitrary or unessential reason.

The preamble notes that OSHA will allow for “a wide variety of third parties” to act as representatives. This includes representatives from unions or other worker advocacy groups. As such, non-unionized employees can now incorporate the help of unions during an OSHA inspection. Employers must be aware that such union participation during inspections could lead to potential unionization and increased disruption at their worksite. Allowing a union representative to participate in inspections may open the door for individuals with hidden agendas to gain access to the worksite and attempt to obtain confidential information or raise unrelated environmental or other concerns regarding working conditions at the worksite.

It is important to note that this rule does not completely open the door for any and all representatives that an employee wishes to have during an OSHA inspection. The final rule does not: (1) change the authority to determine whether a third party has been authorized by employees to be their walkaround representative; (2) affect other provisions of Section 1903 that limit participation in walkaround inspections, such as the inspector’s authority to prevent an individual from participating in the walkaround inspection if their conduct interferes with a fair and orderly inspection; or (3) affect the employer’s right to limit entry of employee authorized representatives into areas of the workplace that contain trade secrets.

Furthermore, compliance officers are not permitted to designate a third party as an authorized employee representative without a request or designation by employees. Compliance officers will help determine whether good cause has been shown that a third-party employee representative is “reasonably necessary” and will inquire about the representatives’ “knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or any relevant language or communication skills, among other things.” These representatives will be deemed “reasonably necessary” when they will positively contribute to a thorough and effective inspection. Such a determination is at the discretion of the compliance officer.

It is clear that the intent of the new Walkaround Rule is to vastly expand the scope of third-party representatives that are permitted to participate in inspections.

U.S. Chamber of Commerce Files Suit to Block OSHA’s Walkaround Rule

Following the publication of the Final Rule, the U.S. Chamber of Commerce filed suit on May 21, 2024 in the United States District Court in the Western District of Texas. The U.S. Chamber of Commerce filed suit to block OSHA’s Walkaround Rule and characterized the rule as being “statutorily unauthorized and arbitrary and capricious,” claiming it gives “union organizers, activists, plaintiffs’ attorneys, and even competitors access to workplaces under the guise of assisting OSHA inspectors during routine inspections.” According to Marc Freedman, Vice President of the U.S. Chamber of Commerce’s Employment Policy Division, “OSHA claims this rule is about workplace safety, but as some union organizers have publicly admitted, this rule is about gaining access to nonunionized workplaces to advance their organizing campaigns.” The Chamber further stated, “OSHA upended over 50 years of precedent by dramatically expanding the type of third parties allowed to accompany inspectors during walkarounds” thereby potentially exposing “companies to excessive lawsuits and unionization efforts, cause disturbances, reveal confidential business information” and raise safety concerns.

The National Association of Wholesaler-Distributions (NAW) also joined the lawsuit, stating that the rule “expand[s] third-parties access to NAW member warehouses during OSHA inspections for potentially personal gain, including union organizing, with no real safeguards for employers and employees.”

The lawsuit provided four main reasons for challenging the new walkaround rule:

1.     The Walkaround Rule exceeds OSHA’s statutory authority.

The U.S. Chamber of Commerce argues that the rule ignores the OSH Act’s designation of who may participate in an inspection. Congress only authorized a single authorized employee representative to participate in OSHA inspections; however, under the final rule, an unlimited number of third-party representatives are permitted to participate. This final rule drastically changes participation rights, as well as employer and employee rights under the NLRA.

2.     The Walkaround Rule effects a vast number of Fifth Amendment takings.

The U.S. Chamber of Commerce also argues that by granting third-party representatives, which include union organizers, the right to enter and occupy employer’s property during inspections, employers may have claims against the government for violating their constitutional property rights. One of the fundamental elements of property ownership is the right to exclude, and this final rule encroaches upon this right.

3.     The Walkaround Rule violates the Administrative Procedure Act (APA).

According to the challenge, this final rule violates the APA’s requirement that agencies “engage in reasoned decision-making”  for several reasons, including: (1) failing to explain the expansion of the rule and its conflict with existing regulations; (2) conducting a flawed cost-benefit analysis by assuming that the rule will not impose any, or at most minimal, costs on employers; (3) failing to consider important business aspects such as protecting confidential information during an inspection; and (4) neglecting to choose better alternatives.

4.     OSHA refused to prepare regulatory flexibility analyses required by the Regulator Flexibility Act (RFA).

The challenge argues that this rule ignores the fact that it will have a “significant economic impact on a substantial number of small entities” since it intrudes on the property rights of each business subject to the OSH Act. Additionally, this rule requires businesses to incur substantial costs by having to prepare and manage the visits of an unlimited number of third parties.

Takeaways for Employers

While the Walkaround Rule is being challenged, employers should prepare for OSHA inspections that may include uninvited and unwanted third parties. Considering this, employers should develop confidentiality and non-disclosure agreements for third parties that participate in the inspections. Employers should train management to ensure they know their rights and responsibilities during an OSHA inspection and possible involvement by union representatives, including when they may object to a designated representative.