2023 OSHA Worker Walkaround Representative Designation Rule: Implications for Employers and Workplace Safety

By: Tatiyana Lewis

With the Occupational Safety and Health Act of 1970, Congress created the Occupational Safety and Health Administration (OSHA) to ensure safe and healthy working conditions for workers by setting and enforcing standards and providing training, outreach, education, and assistance.[1]  Though OSHA was created to ensure employers complied with applicable workplace safety laws, many employers argue that OSHA’s broad authority allows for an aggressive enforcement agenda. While working under the guise of employee safety, OSHA has once again proposed a rule that does not inherently make workplaces safer, but rather has made it easier for labor unions, third-party competitors, and plaintiff’s attorneys to monopolize employers’ workplace practices. On its surface, the recently recrafted Worker Walkaround Representative Designation Rule seems to be designed to ensure efficiency in OSHA compliance walkthroughs. The reality is that this rule will have catastrophic effects on workplaces nationwide. 

Background: 2013 Fairfax Memo

Section 8(e) of the Occupational Safety and Health Act of 1970 specifically stated the following regarding worksite inspections and third-party representatives:

Essentially, OSHA’s policy in 1970 allowed union representatives to be the “employee representative,” but only when the inspection involved a unionized workplace.[3] “Historically under the Act, the union had to be a recognized representative—in other words a union “certified” by the National Labor Relations Board to act as the employee representative in an OSHA inspection.” However, during the Obama administration, OSHA, through a 2013 letter of interpretation known as the “Fairfax Memo,” declared (without going through the formal rulemaking process)[ONL3]  that “workers at a worksite without a collective bargaining agreement [may] designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative.”[4]

Though this interpretation letter provided guidance for workers at non-union worksites, OSHA received sharp criticisms from employers and business groups advocating that OSHA exceeded their own limitations. Specifically, 29 C.F.R. § 1903.8, an agency regulation, indicated that the employee representative must be employed by the employer who controls the worksite being inspected.[5] The only exception for the representative to not be an employee of the employer was that:

However, through the Fairfax Memo, OSHA took the position that, “in its view, these representatives are “reasonably necessary” whenever they will make a positive contribution to a thorough and effective inspection.”[7] “Effectively, OSHA amended its regulation to shift the focus from requiring OSHA to find that such representatives are necessary to have “an effective and thorough” inspection to having such representatives whenever they “make a positive contribution” to OSHA’s inspection—which is a much lower bar.”[8] Ultimately, this expansion allowed the involvement of non-technical union representatives, even from unions, that had not been elected to represent the workforce at the subject workplace.[9]

Thus, in 2016, the National Federation of Independent Businesses filed a lawsuit against OSHA officials, asserting that the interpretation contravened the notice-and-comment requirements stipulated in the Administrative Procedure Act of 1946.[10] The district court ruled the Fairfax Memo constituted an improper legislative-style rule, because the Fairfax Memo directly contradicted 29 C.F.R. § 1903.8(c), which states that “[t]he representative(s) authorized by employees shall be an employee(s) of the employer.”[11] During the 2017 Trump administration, the Fairfax Memo was eventually rescinded.[12]

OSHA’s 2023 Worker Walkaround Representative Designation Process Rule

Now, in 2023, with the Biden Administration’s pledge to be “the most labor-friendly administration in history,”[13] OSHA has geared back up to implement the once again controversial rule through its formal rulemaking process.[14] There are several potential consequences to this proposed rule that would be devastating for employers. The most pressing is that this rule will encourage unions to get involved in OSHA inspections and complaints in non-organized facilities, which will allow for an increase in union organizing.[15] Further, this rule can allow other individuals such as community activists or even plaintiff lawyers to participate in an OSHA inspection on behalf of some of the employees.[16] Ultimately, this will give unions unprecedented leverage in union organizing campaigns by granting them the unfettered ability to communicate directly with non-union employees during an OSHA inspection while those employees are at work.

This comment is not intended to undermine the value of unions in the workplace but rather to express a legitimate concern of employers. Essentially, the implementation of the Walk-Around Rule will formally expand the pool of individuals allowed to participate in these inspections, potentially providing union representatives with a convenient means to access non-union workplaces. This access point could enable these groups to utilize the OSHA inspection process as a pretext for organizing campaigns in workplaces where they might not have had access otherwise.[17] Allowing nearly anyone to accompany an OSHA inspection could transform the inspection’s primary focus from workplace safety to serving as a platform for union organizing, a litigation strategy for attorneys to gain access to a company’s inner workings beyond the scope of standard discovery, or an opportunity to subject employers to unwarranted scrutiny. Ultimately, this compromises not only the employer’s workplace but also detracts from the genuine purpose of an OSHA inspection—ensuring the safety and health of employees.

Furthermore, the proposed rule exacerbates other workplace disruptions. One of the primary concerns is that employers will have diminished control over the inspection process. For instance, designated representatives, who are also employees of the employer and may have previously raised workplace grievances or conflicts with management, might opt not to cooperate with the employer during the inspection and may seize the opportunity to voice additional concerns or complaints. Moreover, these same employees may bring forth other “concerns” at the workplace site, potentially resulting in further adverse effects for the employer. Additionally, employers now need to be vigilant about the possibility of “competitors seeking access to proprietary information or trade secrets, or attorneys representing (or seeking to represent) employees in other workplace or personal injury matters.”[18] The rule’s expansion of the scope of representatives to include those deemed “reasonably necessary to the conduct of an effective and thorough physical inspection” can lead to miscommunication regarding potential violations and inspection matters among the worker representative, the OSHA inspector, and the employer.[19] In general, although the Worker Walkaround Representative designation process is intended to enhance workplace safety and OSHA regulatory compliance, it will, in the end, give rise to several challenges for employers, resulting in various workplace disruptions.

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[1] Occupational Safety and Health Administration, U.S. Dep’t of Labor, https://www.osha.gov/aboutosha (last visited Oct. 30, 2023).

[2] OSH Act of 1970, U.S. Dep’t of Labor, https://www.osha.gov/laws-regs/oshact/completeoshact (last visited Nov. 5, 2023).

[3] OSHA: Union Representatives May Participate in Walkaround Inspections in Non-Union Companies, Fisher Phillips LLP (May, 28, 2013), https://www.fisherphillips.com/en/news-insights/osha-union-representatives-may-participate-in-walkaround-inspections-in-non-union-companies.html.

[4] 5 Steps for Employers as OSHA Plans to Allow Union Walkthroughs of Non-Union Worksites, Fisher Phillips LLP (Feb. 2, 2023), https://www.fisherphillips.com/en/news-insights/5-steps-for-employers-as-osha-plans-to-allow-union-walkthroughs-of-non-union-worksites.html.

[5] 29 C.F.R. §1903.8 (2008).

[6] Id.

[7] Occupational Safety and Health Administration: Standard Interpretations, U.S. Dep’t of Labor (Feb. 21, 2013), https://www.osha.gov/laws-regs/standardinterpretations/2013-02-21.

[8] Fisher Phillips LLP, supra note 4.

[9] U.S. Dep’t of Labor, supra note 7.

[10] OSHA Walks Back Guidance on Third Parties Participating in an OSHA Inspection at a Non-Unionized Workplace, Hodgson Russ LLP (May 10, 2017), https://www.hodgsonruss.com/newsroom-publications-9750.html.

[11] Hodgson Russ LLP, supra note 10.

[12] Id.

[13] Ahiza García-Hodges, Biden’s vow to be ‘most pro-union president’ tested in first year, NBC News (Jan. 20, 2022), https://www.nbcnews.com/business/economy/bidens-vow-union-president-tested-first-year-rcna12791.

[14] Fisher Phillips LLP, supra note 4.

[15] Fisher Phillips LLP, supra note 4.

[16] Id.

[17] Id.

[18] Id.

[19] 29 C.F.R. §1903.8 (2008).