OSHA’s New Walkaround Rule Faces Immediate Challenge

As anticipated when it was first published in the Federal Register on April 1, 2024, OSHA’s final rule on workplace inspections has been challenged by a coalition of business groups in the United States District Court for the Western District of Texas. The new rule, referred to as the “walkaround rule,” amended the long-standing regulation found at 29 CFR § 1903.8(c) by expanding OSHA/workers’ ability to bring in outside representatives during safety inspections — including union organizers, community activists, plaintiffs’ attorneys, and even competitors — under the guise of “assisting” OSHA inspectors. The new rule took effect on May 31.

The Legal Challenge

The lawsuit, led by the United States Chamber of Commerce (Chamber et al. v. OSHA), makes four primary arguments.

•  While the Occupational Health and Safety Act permits employee representatives to accompany OSHA compliance officers on inspections, the lawsuit claims that the new rule — because it allows an unlimited number of non-employee third-party representatives into a private workplace — exceeds OSHA’s statutory authority and conflicts with the National Labor Relations Act (NLRA).
• Congress never authorized OSHA to allow “a parade of non-employee third parties to trample through an employer’s property” during inspections. The lawsuit claims the new rule raises potential issues under the Fifth Amendment “takings clause.” The complaint (Civil Action No. 24-271) cites the 2021 United States Supreme Court ruling in Cedar Point Nursery v. Hassis, overturning a California regulation that permitted union organizers the right to access farms to organize workers. The Supreme Court held that the regulation infringed on the owners’ right to exclude people from their property, which is “a fundamental element of the property right.” In this 6-3 ruling, the Supreme Court held that granting union organizers such access was akin to a “taking” of private property under the takings clause.
• OSHA’s new rule violates the Administrative Procedure Act (APA). The complaint says that OSHA has failed to provide a reasoned basis for its change and has acted “arbitrarily and capriciously.” Government agencies must be able to identify a problem that a new regulation is designed to address, and OSHA has presented no evidence throughout the rulemaking process that there is an existing problem.
• The new rule violates the Regulatory Flexibility Act (RFA) and the Small Business Regulatory Enforcement Act (SBREFA), imposing new costs and other burdens without complying with OSHA’s analysis and disclosure obligations. Under the RFA and SBREFA, an agency must consider the impact of the rule and any alternatives. OSHA failed to do this in any substantive way, saying that the new rule “imposed no new costs on employers.”

Joining the United States Chamber of Commerce in the lawsuit are the Greater Waco Chamber of Commerce, Longview Chamber of Commerce, Alliance for Chemical Distribution, International Franchise Association, International Warehouse Logistics Association, National Association of Wholesaler-Distributors, National Retail Federation, the National Association of Manufacturers, the National Federation of Independent Business, and Associated Builders and Contractors. This lawsuit is the first legal challenge to the walkaround rule.

Prepare Anyway

While there is a good chance that this legal challenge will be successful, until that happens, employers are advised to prepare for OSHA inspections that could include undesirable third parties.

If you haven’t already, now is an excellent time to develop comprehensive confidentiality or non-disclosure agreements for all guests. Any third-party employee representatives accompanying an OSHA inspector on a safety inspection can be bound by confidentiality agreements that are required of most visitors.

If your workforce includes multilingual employees, identify employees who are willing and able to serve as interpreters. By doing so, it will be unnecessary for OSHA to suggest a union representative or some other person for that purpose.

And finally, as I’ve advised my clients in the past, employers have the Fourth Amendment right to refuse an onsite, walkaround inspection on any basis and require OSHA to obtain a warrant to conduct its inspection. Another possible action is to deny access only to the nonemployee third party — if it is unclear why the third party is there — and tell any OSHA officials it’s okay for them to proceed. More than likely, OSHA will see this as a “refusal of entry” and seek a warrant. The employer can then challenge the warrant before the US District Court and prevent third parties with ulterior motives from entering the job site.

If you have any questions about preparing for an OSHA inspection — or have received a citation for any reason — don’t hesitate to contact Orr & Reno for assistance.

James F. Laboe

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