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WORKER WALKAROUND REPRESENTATION RULE

On April 1, 2024 OSHA published in the Federal Register a Final Worker Walkaround Representative Rule (the “Worker Walkaround Rule”). The new Final Rule amends OSHA’s regulation at 29 CFR 1903.8(c) – Representatives of Employees and Employers – and will profoundly affect employers’ legal risk in future OSHA inspections when it goes into effect.



This rule becomes effective on May 31, 2024, so employers have less than two months to prepare. Here are some practical concerns employers must consider, and at the bottom of this summary is a set of tips and strategies for how to handle them:


  • First, union representatives at non-union workplaces might use this rule to improperly solicit and campaign to employees during work hours on company property.

  • Second, Plaintiffs’ attorneys or their “experts” could use this provision to conduct pre-litigation discovery in personal injury or wrongful death actions in a way that is not allowed under the Federal Rules of Civil Procedure.

  • Third, worker advocacy groups and community organizations without applicable safety expertise could similarly use it to organize employees in a non-union workplace or scrounge potential litigation for plaintiff’s attorneys.

  • Fourth, competitors or security threats could gain access to proprietary information and cause significant economic or physical harm.


OSHA’s Frequently Asked Question


The day after OSHA issued the Final Worker Walkaround Rule, it also published a Frequently Asked Questions page with guidance about the new rule. The guidance included thirty questions and answers.  Here are what we found to be the most notable:




1.  Can a walkaround representative accompany the CSHO in all aspects of the inspection?


The walkaround representative is permitted to accompany the CSHO during the walkaround inspection and participate in the opening and closing conferences. The CSHO may conduct informal employee interviews during the walkaround inspection and conduct private formal interviews separate from the walkaround. Employee and employer representatives are not present for private interviews unless the employee requests the presence of the representative.


2. Can an employee walkaround representative ask questions and take photos or measurements during the inspection?


Under the OSH Act, the walkaround representative’s role in the walkaround is to aid the inspection. To that end, the walkaround representative may ask clarifying questions to ensure understanding of the specific item and/or topic of discussion. Because the CSHO takes photographs and measurements, a representative generally does not aid the inspection by taking photos and measurements. However, representatives may take their own photos and measurements if 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.


The employee walkaround representative shall be advised that, during the inspection, matters unrelated to the inspection shall not be discussed with employees. See OSHA’s FOM, CPL 02-00-164, Chapter 3. An employee representative whose conduct interferes with a fair and orderly inspection, which includes any activity not directly related to conducting an effective and thorough physical inspection of the workplace, may be denied from accompanying in the inspection. See § 1903.8(d) and OSHA’s FOM, CPL 02-00-164, Chapter 3.


3. What type of walkaround representative behavior could interfere with the inspection?


During the opening conference, the CSHO sets the ground rules for the inspection and makes clear that employee and employer representatives may not disrupt or interfere with a fair and orderly inspection. As explained in OSHA’s FOM, CPL 02-00-164, Chapter 3, the employee representative shall be advised that, during the inspection, matters unrelated to the inspection shall not be discussed with employees.


The CSHO may deny the right of accompaniment to any person whose conduct interferes with a fair and orderly inspection. See § 1903.8(d). Interfering or disruptive conduct is conducting those delays or impedes the inspection. In addition, any activity not directly related to conducting an effective and thorough physical inspection of the workplace is also deemed to interfere with a fair and orderly inspection. Below is a non-exhaustive list of examples of behavior that may interfere with OSHA’s inspection:


  • 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.


4. Under certain circumstances, can a 3rd Party asserting representative status be denied access to the walkaround?


Yes. This final rule does not:

  • change the CSHO’s authority to determine whether a third party has been authorized by employees to be their walkaround representative (29 CFR 1903.8(b)).

  • affect other provisions of section 1903 that limit participation in walkaround inspections, such as the CSHO’s authority to prevent an individual from participating in the walkaround inspection if their conduct interferes with a fair and orderly inspection (29 CFR 1903.8(d)); or

  • affect the employer’s right to limit entry of employee authorized representatives into areas of the workplace that contain trade secrets (29 CFR 1903.9(d)). (emphasis added)

  • As always, the conduct of OSHA’s inspections must preclude unreasonable disruption of the operations of employer’s establishment (29 CFR 1903.7(d)).


Strategies for Employers


Here are our top strategies for what employers should do to prepare for and manage an OSHA inspection in which OSHA brings along a third-party employee representative (e.g., a union representative at a non-union workplace, a plaintiffs’ attorney or expert, a disgruntled former employee, etc.):


  • Designate and Train an OSHA Inspection Team to manage OSHA inspections. Ensure every team member knows who to contact and what to do from the moment OSHA arrives on site.  Retain counsel in advance so you are not scrambling when OSHA arrives, and instruct every member of the designated inspection team when and how to contact counsel.  The inspection team should be trained on each facet of an OSHA inspection, paying particular attention to the importance and objectives of the opening conference. 

  • Develop Confidentiality and/or Non-Disclosure Agreements that apply to all guests (third-party inspection representatives likely can only be bound by confidentiality agreements that required of most visitors), and require the third party to execute the agreement before the site inspection begins. 

  • Designate Trade Secret Areas within your workplace, and seek to exclude the third-party inspection representatives from those areas.

  • Establish a Safety Committee and ensure that it includes non-supervisory employees. Conduct regular meetings, take notes, and post them so everyone can review them and know what the committee is doing.  Having a Safety Committee with management and worker members enables you to suggest that a committee representative is a better option to assist the CSHO with their inspection than an outside union representative or other third party who does not work at the facility.  In addition, or alternatively, consider establishing Specialized Work Groups (e.g., machine safety, fall protection, chemical safety) that focus on unique or challenging hazards in your workplace.  That way, if OSHA shows up to conduct an Amputations National Emphasis Program inspection, for example, who better to assist the CSHO than a member of your Machine Safety Working Group, rather than an unwelcome third party.

  • If you have a multilingual workforce, consider identifying employees who are willing and able to serve as interpreters in the event of an inspection, so OSHA cannot suggest a union representative or some other third party for that purpose.

 

This new rule “Worker Involvement in the Inspection Process” is essential for through and effective inspections and making workplaces safer. The OSHA Act gives employees and employers equal representation for choosing representatives during the OSHA inspection process and this rule returns us to the fair, balanced approach Congress intended.

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