OSHA’s new employee walkaround rule has raised a lot of questions.
The final rule went into effect on May 31, allowing employees to select a third-party representative to be present during OSHA inspections. The agency has touted the change as a way to improve inspections by increasing worker representation and making it easier for compliance officers to obtain more information about workplace safety.
“Worker involvement in the inspection process is essential for thorough and effective inspections and making workplaces safer,” Doug Parker, assistant secretary of labor for occupational safety and health, said in a press release.
But not everyone is happy with the rule. Opponents and employer groups have described it as vague, and say that adding more people to inspections raises questions about safety, liability and confidentiality.
A rule to match practice
Employees have always had the right to have someone walk with them on an OSHA inspection, said Curtis Chambers, certified safety professional and president of OSHA Training Services, an Arlington, Texas-based training and consulting firm. In fact, it was a longstanding practice observed by OSHA.
Nevertheless, a 2017 court case found that allowing third parties to represent employees was a “valid interpretation,” but not consistent with the language of the rule. OSHA issued the final rule this year to change and clarify the agency’s view and ensure the text aligned with its previous interpretation that third parties are allowed on inspections.
Even before the final rule went into effect, multiple groups, including Associated Builders and Contractors, the National Association of Manufacturers and the U.S. Chamber of Commerce filed suit in the Western District of Texas to challenge it. In particular, business groups take issue with the rule indicating labor representatives can visit sites that do not have union workers.
“By allowing outside union agents access to nonunion employers’ private property, OSHA is injecting itself into labor-management disputes and casting doubt on its status as a neutral enforcer of the law,” ABC said in a statement about the lawsuit.
Chambers agrees the rule “mainly benefits unions trying to get into companies that don’t have union contractors or representation,” he said. “It’s just a reflection of the political environment.”
Legal questions
Chambers said the rule also expands the definition of the kind of person who can be present on an inspection. Instead of someone with specialized knowledge, like a safety engineer, it can be someone whose expertise can be language or communication skills, which could be just about anyone.
“The qualification to be a representative for an employee can merely be just to make them more comfortable,” he said.
Trent Cotney
Courtesy of Adams and Reese LLP
The impetus behind the rule change may have been done “primarily for the purpose of allowing a union rep to attend, but that person doesn’t have to be a union rep,” said Trent Cotney, a construction lawyer at Adams and Reese in Tampa, Florida. “The process allows an employee or employees to request a walkaround rep, and that rep does not have to be affiliated with the employer.”
Often, those third-party escorts are union representatives for workers already belonging to labor groups, but the rule change makes it clear that is not always the case.
The new OSHA rule doesn’t say that this person has to go through safety training or comply with employer safety requirements, Cotney said. Contractors are “very hesitant to allow anyone onto a jobsite that doesn’t allow a reason to be there other than purposes of this inspection,” said Cotney.
Companies also have concerns about intellectual property because the new rule doesn’t say that a third-party rep has to sign a confidentiality agreement, but Cotney said asking a rep to sign one would be “a reasonable request,” per OSHA’s guidelines.
“A manufacturing plant or contractor that has specialized materials processes may be exposing it to someone who is the competition or who has access to the competition,” he said.
Peter Dyga
Permission granted by ABC Florida East Coast
Peter Dyga, president and CEO of ABC’s Florida East Coast Chapter, said he has safety concerns about this ruling because “anybody can be on the jobsite and have no company training or site-specific training.” He also added that “the rule doesn’t answer who is responsible if the third party, who could be any number of third parties — what happens if they’re injured during inspection?”
He also accused OSHA of overreaching, saying that through this ruling “they don’t even think about the basic consequences.”
What’s next?
Since the final rule is still new, contractors are mostly in the “wait and see” phase. Cotney said that he expects the first third-party reps under this rule to be present on jobsites in areas where union labor is more common than in open-shop areas.
He also said that a contractor can object to a third-party representative.
If they do so, the decision will go back to the OSHA area director, who will make a decision as to whether or not the process can move forward. If the area director decides it can go forward, and a contractor objects again “hypothetically they can issue a warrant or issue a citation or take other types of punitive potential actions,” he said.
Cotney’s also keeping an eye on the lawsuits filed over the challenge, especially since a recent Supreme Court ruling ended the Chevron deference, where courts deferred to agency interpretations of ambiguous statutes.
The Chevron deference had given “huge, huge power” to federal agencies, he said. The recent reversal means that the judicial branch checks that power, said Cotney, which can play out in multiple ways, and could include knocking down the power of an agency like OSHA to institute these kinds of rules.
