14 ways employers should prepare for OSHA's new Walkaround Rule

The Worker Walkaround Representative Designation Process final rule was fast-tracked through the rulemaking process in just seven months. Many speculate that this was done to avoid the risk of rescindment by ensuring it was issued before the Congressional Review Act (CRA) review window was too close to the presidential election.

Because the final rule has the potential to allow anyone on a jobsite, many businesses and industry groups fear it opens the door to unions and labor advocates to nonunionized worksites, access they would otherwise be denied under federal labor law as well as other third parties who may have ulterior motives, such as disgruntled employees, plaintiff attorneys, or activist groups. Historically, the National Labor Relations Board (NLRB) and OSHA have engaged in cooperative efforts, and broadening unions' access rights to employer property remains a priority for the NLRB in 2024. The NLRB "Cemex" decision last summer led to a significant spike in union election petitions with 35 percent more filed in the first half of Fiscal Year 2024 than the same period in 2023.

Scheduled to take effect May 31, 2024, the new rule has the potential to reshape future inspections. The labor law firm, Jackson Lewis, writes, "The impact is significant. Whether it be losing the right to maintain confidentiality of plant operations, trade secrets, or proprietary practices to allowing third-party union organizers access to an employer's private workplace and to its employees."

While OSHA has issued FAQs to help clarify the rule, there remain many unanswered questions. Here is a summary of the rule and 14 action points for employers.

What's changed?

While OSHA has long permitted employee representatives on an inspection, the new rule removes the explicit requirement that an employee representative be an employee of the employer inspected. In its place, the new regulation states, "the representative(s) authorized by employees may be an employee of the employer or a third party." Further, the rule greatly expands the types of individuals who might join the inspection. Third-party representation during OSHA inspections is no longer limited to only those individuals with skills and knowledge similar to the two examples (industrial hygienist or safety engineer) provided in the prior regulatory text, but "...third-party representatives, including those from unions or worker advocacy groups, are needed to accompany CSHOs during inspections because representatives explaining OSHA processes or protections against retaliation before or after the inspection would not be sufficient to adequately assure workers."

The criteria for selection of a third-party representative

The rule gives the Compliance Safety and Health Officer (CSHO) the sole discretion to determine whether the third-party representative is reasonably necessary to conduct an effective and thorough inspection. In the judgment of the officer, "good cause" must be shown why accompaniment by a third party is "reasonably necessary" to the conduct of an effective and thorough physical inspection of the workplace. "This includes, but is not limited to, knowledge, or experience with particular hazards or conditions in the workplace or similar workplaces, as well as any relevant language or communication skills a representative may have to facilitate better communication between workers and the CSHO."

However, the rule does not contain guidance on how a CSHO should grant or manage requests for an authorized representative by employees, including requests for union organizers or competing requests from employees. They are, however, instructed to determine whether employees have authorized a walkaround representative as soon as possible after arrival at the facility. The Preamble to the final rule states that "in a workplace with more than one employee, more than one employee would need to authorize the walkaround representative..."

Since much is left to the discretion of the CSHO, it's anticipated there will be significant variance as to who is allowed as a third-party representative. With its recent hiring push, OSHA has many new, inexperienced inspectors. It's important not to assume that OSHA has your best interests at heart.

What the third-party representative can and cannot do

While the rule does not change the role of the third-party representative authorized by employees, it takes on new significance with the inclusion of non-employee representatives.

Third-party representatives can:

accompany the CSHO during the walkaround inspection
attend the opening and closing conferences
obtain access to injury and illness records
review records relating to work processes, equipment, or machines at the CSHO's discretion
informally ask clarifying questions during the walkaround
attend private employee interviews conducted by the CSHO only if the employee requests their presence

Third-party representatives cannot:

Interfere with a fair and orderly inspection, such as discussing matters unrelated to the inspection with employees, solicitation, including handing out union authorization cards, and wandering away from the inspection or going into unauthorized areas. "Wearing clothing with a union name or logo would not ordinarily interfere with the inspection."
Take photos,videos, and measurements, unless expressly permitted by the employer or another entity that controls the worksite if not the employer, or under the terms of a collective bargaining agreement, provided such conduct does not interfere with the CSHO's inspection.

Employer rights

Employers may require third-party representatives to comply with rules and policies that are applied equally to other visitors, such as safety briefings, use of PPE, special precautions in designated areas, and 'trade secret' areas that are off-limits. According to the FAQs, an employer may require a third-party representative to sign a reasonable confidentiality agreement, limited to the use of the confidential information learned in the inspection, on the same terms as it requires of other visitors. However, the agreement may not restrict the representative's ability to discuss information with OSHA or employees affected by the inspection or restrict the representative's participation in any future enforcement proceedings. OSHA does not accept any liability for the third party, but it's unclear if it would object to an employer requesting the party to sign a waiver of liability.

Although there is no formal mechanism for objections, employers have a right to object to a representative, but the CSHO has the authority to resolve all disputes. Employers can demand a search warrant that allows the third party to participate in OSHA's inspection. Even during an inspection, if the third party violates the ground rules, an employer may decide to refuse to permit the inspection to continue without a warrant. If OSHA has a warrant, the employer can contest it.

Employer action steps

Develop a plan and have an "inspection team." Set criteria for how you will handle inspections involving third-party representatives. Decide under what circumstances you will require a warrant. Train all members of the team and train key managers on procedures. Involve legal counsel in developing the plan. Be sure all members of the team know how and when to consult counsel.
Consider involving the employee Safety Committee, or establishing one, if one doesn't exist. Be sure the committee includes non-supervisory employees and is representative of the company. Proactively, ask the committee to designate a representative before the inspection. In addition, or alternatively, the labor law firm, Conn Maciel Carey, suggests establishing Specialized Work Groups (e.g. fall protection, machine safety, chemical safety). If the inspection relates to a National or Regional Emphasis Program, suggest that a member of the group accompany the CSHO.
If you have a multilingual workforce, identify employees who would be willing to serve as interpreters during the inspection.
Ask to see the third party's credentials and inquire why they are "reasonably necessary" for an effective inspection.
Ask which employees designated the representative and how they did it. Verify that more than one employee made the request.
Agree upon the areas to be inspected. Designate "trade secret" areas and request to exclude third-party representatives from those areas.
Ask if OSHA has a warrant. If yes, contact legal counsel.
Require the third party to sign a confidentiality agreement, consistent with what is allowed in the regulations. Focus on trade secrets and employee information.
Require representatives to comply with all rules and policies that are applied equally to other visitors.
Ask the representative to sign a waiver of liability.
Be vigilant and closely observe the actions and behavior of the third party. Object if they leave the side of the CSHO or engage with employees on their own.
If they sit in on an interview, verify that the employee requested it. Provide a place for them to wait if they are not authorized to attend the interview.
Discuss with counsel whether to require third parties to execute nondisclosure agreements to protect trade secrets or confidential information. OSHA has declined to add a nondisclosure requirement or other limitations to the sharing of information.
It is expected that the rule will face legal challenges from the employer community. Monitor the developments closely.