CSG Law Alert: New OSHA “Worker Walkaround” Rule Clarifies Employee Representation During Inspections – Protect Confidential Documents, Trade Secrets and Other Confidential Information from Competitors

On April 1, 2024, the Department of Labor published its final rule revising its regulations regarding whom employees can authorize to act as their representative(s) to accompany OSHA Compliance Officers/Inspectors (COI)) during OSHA workplace inspections. See 29 CFR 1903.8(c). The effective date of the new rule is May 31, 2024.*

Under Section 8(e) of the Occupational Safety and Health Act (“OSH Act”), employees and employers alike have the right to have a representative accompany OSHA COI’s during physical inspections of work sites as part of OSHA inspections.  OSHA inspections typically can arise (i) when serious accidents and injuries occur in the workplace, (ii) from employee or third-party complaints, or (iii) through targeting employers in high-risk injury industries, such as manufacturing, warehousing or construction. Depending on the type of inspection, it can cover (i) the entire worksite, (ii) only area where an employee was injured, or (III) the area referenced in an employee/third-party complaint.

Specifically, the proposed rule will revise 29 CFR 1903. 8(c) to permit employees to designate a non-employee, third party to be their representatives during the physical walkaround (OSHA inspection) provided they will “further aid in the inspection” are reasonably necessary to conduct an effective and thorough inspection and will “further aid in the inspection.” See 29 CFR 1903.8(a).  Thus, the revised regulations place a limit on a third-party employee’s representative to ensure their presence actually aids the inspection.  Through the new rule, OSHA has effectively indicated non-unionized employees can look outside the workplace (for example, to unions) for support during an OSHA inspection.**

The new rule is not without criticism.  Certain groups, however, argue that the rule unfairly makes OSHA inspectors the judge of who should belong on the inspection.  They caution that third parties could also be unfamiliar with job site safety and can even be at risk themselves for injury due to lack of knowledge.  For example, construction groups argue that the rule unfairly requires construction businesses to oblige third parties who do not possess safety expertise, and this will disrupt the job site.  It put the “neutral” OSHA inspectors into a possible contentious labor dispute.  It also is being viewed as a possible way for unions to try to gain a foothold on non-union jobs. See generally, 4/11/24 McLoud, New OSHA Rule Allows Union Reps on Non-Union Jobsite Inspections. The rule provides the COI’s ultimate discretion to decide whether a third party is reasonably necessary to conduct an effective and thorough physical inspection of the workplace by virtue of their knowledge, skills, or experience. See 29 CFR 1903.8(d).

It is important to note that employers who have the potential to question the qualification of the non-employee third party should raise the objection immediately with the COI and request clarification as to the necessity of that third parties present for the inspection. If OSHA’s response is unsatisfactory an employer can consider denying access to that third party representative. See 4/1/24, Seyfarth Shaw, Union Intrusion: New OSHA Rule Permits Employee Union Representatives on OSHA Inspection Walkarounds.

Should an employer refuse to permit a representative of employees to accompany the COI during the inspection of any workplace in accordance with 29 CFR 1903.8, the COI shall terminate inspection and/or narrow it to areas, topics and materials to which the employer does not object. See 29 CFR 1903.4(a). The COI must report the employer’s refusal and the reason for it to their Area Director, who will discuss it with their attorneys at the Solicitor’s Office. Employers may be able to raise legal defenses to third party visits on site relating to the third party’s suitability, skills, experience and method of selection.

Even if there is no dispute as to the third -party representatives’ presence employers should be sure to protect their confidential documents, trade secrets and other confidential information. Typically, during an OSHA inspection COI’s take photographs of the workplace with employers taking verifying photos. The new rule does not allow non-employee third party representatives to have copies of the photographs, or any other materials provided to OSHA during the inspection. Moreover, the non-employee representative cannot take any photos without the employer’s permission.  See Seyfarth Shaw, Id.***

Thus, employers should confirm that a third-party representative has the required background and skill to aid in the OSHA inspection and if not, the employer should raise objections with the COI. If the COI’s responses are not satisfactory, request that the COI contact the OSHA Area Director for his or her position. If still not satisfied with OSHA’s response, consider denying access to the inspection by the third-party representative. Also, employer should be sure to protect all of their proprietary information from the third-party representatives.

* The rule is in part a response to 2017 court decision in NFIB v Dougherty, Westlaw 11944666 (N.D. Tex., 2017) finding that OSHA’s existing regulation, 29 CFR 1903.8(c) only permitted employees of the employer to be authorized as representatives.  In the decision, the Court did acknowledge that OSH Act did not limit who can serve as an employee representative. The new proposed rule confirms OSHA’s intent to also revive the interpretation of 29 CFR 1903.8(c) as outlined in the so-called Fairfax Memorandum (See February 21, 2013 Letter of Interpretation for Deputy Assistant Secretary Richard E. Fairfax to Steve Stillman) that found that non-unionized workers had the ability to designate outside third parties affiliated with a union as their representative during OSHA inspections.

** Employers in state plan states, like Arizona, California, Maryland, Michigan etc., should continue to comply with those States applicable rules and regulations regarding union and third-party access to OSHA inspections.  However, as required by section 18 of the OSH Act, States will need to ensure their standards and enforcement of those standards are at least as effective as any final rule published by OSHA.

*** The right of accompaniment in areas containing trade secrets shall be subject to the provisions of 29 CFR 1903(d).  Also, with regard to information “classified” by an agency of the United States Government in the interest of national security, only persons authorized to have access to such information may accompany a COI into areas containing such information. See 29 CFR 1903.8(d).

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