On May 31, 2024, the U.S. Occupational Safety and Health Administration’s (OSHA) revisions to the “walkaround rule” went into effect. The walkaround rule sets forth a process for OSHA to conduct on-site inspections and previously allowed an employee representative to attend the inspection.
What’s New with the Rule?
The revisions to the walkaround rule remove the requirement that an employee representative be an employee of the employer being inspected. Under the revised rule, the representative may be an employee of the employer or a third party who is authorized by employees or a union organizer who has been selected by employees to serve as the representative.
According to OSHA’s FAQs, “No set number of employees are required to authorize an employee walkaround representative. It is not necessary for all, or even a majority of employees to authorize the walkaround representative. However, in a workplace with more than one employee, more than one employee would be needed to authorize the walkaround representative.”
Third-Party Representatives
Third-party representatives are no longer required to show formal credentials to be eligible to serve as the representative, only that they have a variety of skills, knowledge, or experience that could aid the compliance safety and health officer’s (CSHO) inspection. Additionally, prospective third-party representatives must show “good cause” as to why their accompaniment in the inspection is reasonably necessary to an effective and thorough physical workplace inspection.
The third-party representative’s role in the inspection is typically limited to accompanying the CSHO during the walkaround. The representative may ask clarifying questions, as well as attend the opening and closing conferences. The changes to the walkaround rule don’t alter the ground rules for an inspection and continue to ensure both the employer and employee representatives don’t disrupt or interfere with a fair and orderly inspection.
For example, an employee representative may not wander from the inspection or go into unauthorized areas. The third party also may not take unauthorized photographs or videos and may not engage in solicitation by handing out union authorization cards or distribute any material without the CSHO’s approval.
Bottom Line
It’s important to understand that the update to the walkaround rule will allow union representatives to attend the inspection. In a nonunion shop, the presence of a union representative signals a union-organizing campaign is likely imminent.
It will be particularly important to train direct management staff on the importance of understanding their employees’ rights under the National Labor Relations Act and ensure managers understand how to lawfully deal with protected concerted activity.
Chris Toner is a partner with Axley Brynelson, LLP. He can be reached at 608-283-6742 or ctoner@axley.com.