The “Reasonably Necessary” Third-Party? OSHA’s controversial new walkaround rule moves closer to enactment
Mar 06, 2024On February 9, 2024, the United States Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) sent its “worker walkaround” final rule to the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA) for final review. The proposed rule, which has been in the rulemaking pipeline since early last year, will amend the existing regulation 29 CFR § 1903.8(c), which specifies what third parties can be “employee representatives.” As proposed, the new rule will empower employees to choose from a much more comprehensive range of third-party possibilities — including outside union and community activists — to accompany OSHA inspectors into nonunion facilities. It could be almost anyone, as long as the compliance officer “determines the third party is reasonably necessary to conduct an effective and thorough inspection.”
The review by OIRA is usually the final step in the rulemaking process before publication in the Federal Register. It’s reasonable to expect that will happen soon.
Pushback
The pushback from employers and business groups has been significant. The primary objection concerns the possibility of OSHA compliance officers officially welcoming union representatives — or injured workers, family members, competitors, or representatives of activist groups — into private workplaces.
Last September, Assistant Secretary Doug Parker answered questions at a public hearing, defending the rule’s lawfulness and necessity. One question posed and answered deserves repeating:
OSHA suggests it is seeing an increase in opportunities for employees to be represented in walkaround inspections. Please provide all data statistics about the frequency that employees have sought non-employee representation during an inspection, including how many and what percentage of such requests were granted and how many were denied by OSHA.
OSHA’s response — “OSHA does not track this metric.” — suggests that there isn’t a clearly defined problem being solved here after all. This is legally troublesome because one of the fundamental tenets of administrative law is that we must define the problem before we suggest solutions.
In September, the House Education and Workforce Committee majority sent a letter to the Secretary of Labor, Julie Su, requesting that the effort to change the current walkaround rule be abandoned. In her letter, committee chairman Virginia Fox called the entire process “political.”
The proposed walkaround rule puts politics first by promoting Big Labor’s interests, interferes in labor-management relations, increases costs, puts union bosses ahead of workers, and overturns longstanding regulations. DOL should stop putting its political goal of promoting unionization at all costs ahead of keeping workers safe. Yet, Assistant Secretary Parker’s QFR responses suggest that OSHA is doing just that.
In a press release published last fall, Associated Builders and Contractors (ABC) also charged the current administration with political motivations for the rule — rather than worker safety.
The Biden administration is trying to revive a failed Obama-era initiative, which was bad policy then and is bad policy now. This power grab does nothing to promote workplace health and safety, and instead pushes the administration’s ‘all-of-government’ agenda to encourage unions and collective bargaining. OSHA can have a bigger impact on jobsite safety by fostering positive partnerships with employers and promoting safety practices that produce results.
In their extensive comments about the propose rule, the U.S. Chamber of Commerce said that OSHA was trying to conceal its union-promoting motivations by “offering access to any third party,” and that such an action will create “havoc.” Many employers operate in highly competitive and proprietary markets, where facilities have strict security protocols and all employees sign nondisclosure agreements. It is extremely problematic to suggest that “anyone” could potentially have access to such an operation.
There is no provision for the responsibility for the actions and safety of these individuals while they are on an employer’s premises. Is OSHA willing to be liable for their actions if they act inappropriately, share trade secrets or confidential information, get hurt, deviate from the mission of the inspection, defame the employer, or harm persons or property?
Allowing anyone to be a representative — regardless of whether they are even tangentially related to employees or the inspection — will turn OSHA inspections into an opportunity for individuals or groups with grievances or an agenda against the employer to advance their interests by gaining full access to the employer’s property. This might include environmental disputes, media campaigns against the company, or exploiting confidential or proprietary information.
Support
Organizations like the National Council for Occupational Safety and Health (National COSH) support the new rule, saying that it will allow workers to become more actively involved in ensuring the safety of their workplaces by empowering themselves to name a “reasonably necessary” employee representative to provide OSHA with their collective voice.
Jessica E. Martinez, co-executive director of National COSH, said in a press release celebrating the announcement of the new walkaround rule that her support was mainly about providing OSHA with accurate information.
With a trusted worker representative onsite, safety inspections can more effectively capture the first-hand knowledge workers have about work processes and potential hazards. A representative selected by workers can also bridge language barriers and reduce the fear of retaliation, which is often a major barrier in gathering accurate information about workplace conditions.
Enactment
While the final rule and effective date remains a question mark, employers are advised to prepare for its enactment. It appears to be inevitable.
Given the employee-friendly, union-friendly tenor of the current administration — combined with low national unemployment numbers and positive financial growth across many industry sectors — employers should prepare themselves for increased union organizing and striking activity in the months ahead.
For any employer in a competitive job market, now is an excellent time to think about the quality of your communication with your current employees and how to improve it. Proactively review compensation packages. Make sure you have a functional and fair complaint resolution process in place. Get out there on the front lines and talk with your employees. What are they worried about?
Employers also have the Fourth Amendment right to refuse an onsite, walkaround inspection on any basis and require OSHA to get a warrant to conduct its inspection. Another possible action is to deny access only to the non-employee 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 get a warrant anyway, but exercising this fundamental right can buy employers a little time if time is what they need.
As always, if you have any questions or concerns — or have received a citation for any reason — don’t hesitate to contact Orr & Reno for assistance.
