On April 1, the Department of Labor published the final rule of the Worker Walkaround Representation Designation Process, or Walkaround Rule, which clarifies employees' rights to have a representative accompany an OSHA compliance officer during inspections.
This new rule, which went into effect on May 31, allows employees to choose either another employee or a non-employee as their representative.
Regarding the changes, the Labor Department stated, "Employee representation during the inspection is critically important to ensuring OSHA obtains the necessary information about worksite conditions and hazards."
However, the Walkaround Rule has encountered backlash from the manufacturing industry, including a lawsuit filed by the National Association of Manufacturers. In a statement, NAM Chief Legal Officer Linda Kelly said the rule does nothing to advance workplace safety, infringes on manufacturers' rights to exclude others from their property and risks compromising their intellectual property.
Industrial Media reached out to Quarles & Brady Attorneys Chris Nickels and Amanda Collins, who provided commentary on the challenges, potential legal suits and precautions employers can take.
Industrial Media (IM): What legal challenges are you expecting from the new OSHA Walkaround Rule?
Chris Nickels, Amanda Colins (CN, AC): Several industry groups, including manufacturing industry groups, have already filed a lawsuit challenging the OSHA Walkaround Rule, claiming the rule exceeds OSHA’s authority.
A recent ruling by the U.S. Supreme Court makes this challenge more likely to succeed. Formerly, courts faced with a lawsuit challenging an administrative rule, such as the OSHA Walkaround Rule, upheld the rule if it was a reasonable interpretation of the law, even if another interpretation would be better.
Under Supreme Court’s new decision, however, courts may only uphold a challenged administrative rule if the rule is the best interpretation of the law. This makes it much easier for courts to overturn rules like the OSHA Walkaround Rule.
As of July 29, 2024, both sides of the lawsuit have filed briefs asking for the judge to rule in their favor. We anticipate a ruling in the coming months.
IM: What are the biggest concerns you are hearing from manufacturing clients?
(CN, AC): Manufacturing employers are understandably worried that this rule will allow unions a new path of access, particularly to non-unionized workforces.
Additionally, manufacturing employers are worried that non-employee representatives may use this rule as an opportunity to access or view an area that could reveal a trade secret. Luckily, employers have some options to push back or enact protections to prevent the worst from happening.
IM: What conflicts do you foresee between employers, employees and non-employee representatives?
(CN, AC): Employers may not wish to allow non-employees on the premises to represent employees, especially if the non-employee representative is from a union and wishes to represent employees in a non-unionized workforce.
While employers may object to a proposed employee representative, unfortunately, the Walkaround Rule does not contain any mechanism for resolving disputes between employers and non-employee representatives.
IM: What precautions should employers take to prepare for inspections and to educate their workforce about the new rule?
(CN, AC): Because OSHA may inspect a worksite at any time without notice, we recommend that employers designate and train at least one employer representative to handle OSHA inspections. The designated representative should have a solid grasp on the rights and limitations of employee representatives.
If your business operates multiple shifts, consider ensuring a designated representative is always on site during business hours. This designated representative should have access to a maintained list of all areas that contain or could reveal trade secret information and be prepared to ask that the non-employee representative be excluded from those areas.
Employers may require third-party employee representatives to sign a reasonable confidentiality agreement, but only if the employer requires all visitors to sign such agreement. Therefore, consider requiring all visitors to sign a nondisclosure and/or confidentiality agreement if your company maintains trade secrets or confidential information that could be discoverable during an OSHA inspection.
IM: Are there any other points you wish to stress regarding the new rule?
(CN, AC): If an OSHA inspector shows up to conduct a walkaround, contact counsel immediately. Employers, too, have the right to third-party representation during OSHA inspections.
