LEGALLY SPEAKING: OSHA’S NEW INSPECTION WALKAROUND RULE

By Bob Dunlevey of Taft/Law on Monday, 6/3/2024

Effective May 31, 2024, OSHA’s longstanding rule authorizing employers and employees to each appoint a representative to accompany and aid an OSHA inspector during an onsite inspection has been broadly expanded to include “third parties” such as union representatives, community activists, or claimant’s attorneys – a highly controversial initiative. OSHA State Plans will be similarly expanded.

The representative must be “reasonably necessary to aid in the investigation,” non-employees would be deemed necessary due to “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar places, or language or communication skills.”  Anticipate that OSHA will broadly interpret this provision to include a vast array of persons you do not desire to have within your workplace.

The new rule provides unions and worker advocacy groups an excellent opportunity to gain entry to a union-free workplace – something normally not permitted but highly effective in union organizing attempts. Anticipate that unions will cause more OSHA complaints against union-free employers in order to maximize organizing efforts. Your union aversion program should contemplate this.

OSHA states that employee representatives may not –

• Gain access to work areas containing trade secrets;

• Discuss matters not related to the inspection;

• Participate in OSHA interviews unless the witness requests such;

• Take photographs, measurements or samples.

Other restrictions are also addressed in the rule.

Currently this rule is subject to Court attack by the National Association of Manufacturers and the U.S. Chamber of Commerce. Watch for developments, but in the meantime fully comply with the rule. 

Employers should immediately –

• Familiarize themselves with Rule 29 CFR 1903.8(c) and OSHA’s FAQs.  Remember, OSHA’s Q&As may not actually represent the state of the law.

• Be prepared to object initially to a designated representative or object after the investigation starts or if the third party interferes with the inspection or unusually disrupts operations. Consider requiring OSHA to get a federal warrant to commence or continue an inspection thereby setting more reasonable parameters for the inspection activities. OSHA does not cite an employer for merely refusing to allow a third party to participate in an inspection absent a warrant.

• Have a policy requiring visitors to sign non-disclosure/confidentiality agreements and uniformly and consistently enforce the policy.

• Recognize there may be labor relations issues arising during the inspection process including employee protected concerted activity issues under the National Labor Relations Act. Avoid unfair labor practices.

• Establish a written protocol for dealing with an onsite inspection from start to finish.

For a complimentary copy of a protocol, contact Bob Dunlevey, Board Certified Specialist in Labor and Employment Law, Taft Law, at rdunlevey@taftlaw.com. He represents employers and Associations throughout the United States involving NLRB, EEOC, OSHA and DOL matters and has been awarded Best Lawyers in America and Super Lawyer designations.

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DRMA members are eligible to receive one free legal consultation per month from employment law attorney Bob Dunlevey. If you need legal advice concerning labor, safety, real estate, or other business issues, give Bob a call at (937) 641-1743.  Be sure to identify yourself as a DRMA member.

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