DOL Final Worker Walkaround Rule Raises Concerns

Employees will have more discretion about who accompanies an OSHA compliance officer during a workplace inspection after a U.S. Department of Labor ruling. 

In DOL’s final worker walkaround rule, officials said employees may authorize another employee or nonemployee third party to serve as their representative during an inspection even if the business is non-unionized. 

While the final rule goes into effect May 31, 2024, it faces additional scrutiny. 

Designation Process

The Occupational Safety and Health Act gives an employer and employees the right to authorize a representative to accompany OSHA officials during a workplace inspection. 

OSHA’s final rule says employees may choose another employee or nonemployee to serve as their representative.

It goes on to say the non-employee representative must be “reasonably necessary to conduct an effective and thorough physical inspection of the workplace” because of their knowledge, skills, or experience. 

The Occupational Safety and Health Act gives an employer and employees the right to authorize a representative to accompany OSHA officials during a workplace inspection. 

“Worker involvement in the inspection process is essential for thorough and effective inspections and making workplaces safer,” OSHA assistant secretary Doug Parker said. 

National Association of Manufacturers chief legal officer Linda Kelly said the rule “does nothing to advance OSHA’s mission of ensuring safe working conditions.”

Business Concerns 

NAM is among several business groups contending the final ruling. 

“By unlawfully expanding third-party access to manufacturers’ worksites, this proposal clearly violates OSHA’s statutory mandate to conduct inspections within ‘reasonable limits and in a reasonable manner’ with ‘minimum burden’ on employers, and potentially violates manufacturers’ constitutional rights,” Kelly said. 

“For the first time, OSHA would determine who qualifies as an ‘authorized representative’ of employees, which until now has been exclusively recognized as the jurisdiction of the National Labor Relations Board.”

Letizia, Ambrose & Falls attorney John Letizia said allowing a nonemployee to accompany an employer and OSHA official during the inspection could be problematic, especially in non-union settings. 

“The selection process of a group of employees deciding the individual they would like to accompany the employer and OSHA inspector is likely concerted activity and protected under the NLRA.”

Letizia, Ambrose & Falls’ John Letizia

“The selection process of a group of employees deciding the individual they would like to accompany the employer and OSHA inspector is likely concerted activity and protected under the NLRA,” Letizia said.

Letizia and Kelly said confidentiality could also come into play. 

Letizia said employers should be very careful when this situation arises. 

“Employers should make certain they have as much protection in place to avoid potentially a NLRB charge and/or problem with OSHA if they refuse to allow a nonemployee, who refuses to sign a confidentiality agreement, to attend the inspection,” he said.

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For more information, contact CBIA’s Phillip Montgomery.