What OSHA’s Walkaround Rule Means For Employers

By Susan Wiltsie and Reilly Moore

The Occupational Safety and Health Administration’s “Worker Walkaround Representative Designation Process” — referred to as the Walkaround Rule — went into effect on May 31, 2024. The Walkaround Rule significantly expands which third parties are permitted to participate in an on-site OSHA investigation and clarifies that employees have the right to designate a non-employee third party to be their representative.

Employers are now assessing what steps they can take to try to prevent participation from third parties who do not satisfy the criteria in the revised regulation. Before the Walkaround Rule, OSHA regulations permitted third parties to participate in on-site OSHA inspections for the “purpose of aiding such inspection.” These third parties were limited to experts such as industrial hygienists or safety engineers.

Before the Walkaround Rule, OSHA limited third parties in on-site inspections to experts such as industrial hygienists or safety engineers.

Now, this limiting language has been removed and employees may select a third party to serve as their representative during an inspection “if, in the judgment of the Compliance Safety and Health Officer (CSHO) good cause has been shown why accompaniment by a third party is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (including but not limited to because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills).”

What Third Parties Can Participate In OSHA Investigations

The CSHO has the discretion to determine whether the third party is reasonably necessary. On its face, it seems difficult to imagine that any of these newly listed categories of knowledge or skills do not already exist at the worksite and/or with the CSHO. The employer knows how its operations work and should have translators already, given existing obligations that safety communication and training must be in the language understood by the employees. Any moderately seasoned CSHO has seen similar workplaces.

It is troubling that the Walkaround Rule does not include any process for the employer’s participation in determining whether the purported third party is reasonably necessary. OSHA published FAQs that the CSHO will engage in some minimal vetting and then proceed. This provides no protection for the employer. Employers should be prepared to question the CSHO regarding the reasons why the CSHO has concluded that a third party is reasonably necessary. The employer should learn which organization the third party represents and what skills/experience the third party allegedly has that will aid the investigation. Employers should be prepared to push back if managers/employees at the site already possess the same knowledge or skills. Employers should keep a current list of available on-site translators for this purpose and any unique expertise possessed by the employees at the site, such as certified trade skills.

In some situations, the third party could be someone whom the employer reasonably concludes intends to harm their legitimate business interests or legal rights. Examples include someone affiliated with a competitor, someone connected with threatened or existing litigation, someone affiliated with an NGO or a media outlet that has been hostile to the employer’s interests. The employer always should ask sufficient questions to make certain that the person does not fall into these categories. And, if the person does and the CSHO still wants to move forward, the employer should seriously consider denying entry.

How Employers Can Protect Their Trade Secrets

The underlying purpose of this rule, though, appears to be to give union organizers access to employees in workplaces that do not have already have union representation or where opportunities for additional bargaining units exist. As such, a CSHO sympathetic to this purpose may be hard to persuade that the organizer is not “reasonably necessary” regardless of the facts. If the employer is unsuccessful in arguing its case, as above, the employer may deny entry. However, if an employer permits the investigation to go forward, the employer still does have some rights which they should assert.

First, employers have the “option to request that, in areas containing trade secrets, the employee walkaround representative be an employee in that area or an employee authorized by the employer to enter that area, and not a third party.” This may be a difficult negotiation with the CSHO. Many employers legitimately consider all of their production areas to include trade secret information and have long histories of preventing visitor access, photos and the like. Asserting these rights and restricting the third party from trade secret areas may effectively prohibit participation. OSHA suggests in the FAQs that a non-disclosure agreement could be used. Employers should carefully consider whether this would be adequate protection. The third party may be unafraid of litigation over a breached agreement; whereas the employer has a great deal to lose if their trade secrets become public. This should be discussed with the CSHO before the walk around begins and may be another area where denial of entry should be considered.

OSHA FAQs make clear that the third party should not take pictures unless the employer authorizes him/her to do so. And, the third party is not permitted to talk to employees about issues outside of the inspection. The CSHO and the employer may have different views about what falls inside or outside the inspection, but the employer should make every effort to prevent unfettered access to their employees. Finally, the third party is not permitted to participate in employee interviews unless specifically requested to do so by the employee being interviewed. Employers typically are only minimally involved in CSHO/employee interviews, often merely as a facilitator, and they may not be involved at all. This situation creates difficulty for the employer in trying to ensure that the CSHO maintains these parameters for third party/employee interaction.

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If the third party becomes disruptive, the FAQs provide that the CSHO has the ability to end participation, following consult with the Area Director. This scenario is particularly problematic. Nothing in this rule alters an employer’s property rights. Employers maintain their right to remove individuals from their property and, if they do not leave, seek police protection from trespass. Unfortunately, this seems set up for significant conflict, as nothing in the rule or the guidance provides a process for employers to assert property rights if the CSHO and the employer have a difference of opinion regarding whether the third party is disruptive.

How To Prepare For New Inspections

Ideally, these issues will be resolved as the new regulation is implemented or perhaps the rule will be subject to legal challenge. In the interim, employers should create lists of questions to ask the CSHO regarding the need for the third party if one is presented. Employers should, at a minimum, make certain that third parties who do participate adhere to the parameters that OSHA agrees they should follow. In situations where the CSHO disregards the employer’s legitimate interests and legal rights, the employer should consider denying entry.

Susan F. Wiltsie is a partner with Hunton Andrews Kurth LLP in Washington, DC. She can be reached at swiltsie@HuntonAK.com.

Reilly C. Moore is an associate with the firm in Richmond, VA. He can be reached at rmoore@HuntonAK.com.

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