Listen to this articleThe Occupational Safety and Health Administration (OSHA), the federal regulator tasked with ensuring that workplaces are safe and that workers who raise alarms about dangerous working conditions are not retaliated against, made a decision earlier this year issued clarifying who this might be while allowing OSHA inspections access to the construction sites. The change, known as the “Walkaround Rule,” has already had a significant impact on many industries on Long Island, and some attorneys say the consequences of the change could be unfair for employers.
“OSHA has generally permitted representatives of both an employer and an employee to accompany the OSHA inspector on a physical inspection of an employer's worksite. Importantly, the previous version of the walkaround rule expressly limited an “employee representative” to current employees only, explains Christopher Hampton, partner at Meltzer, Lippe, Goldstein & Breitstone LLP in Mineola. “Under the new rule, an employee now has the right to appoint trade unions, labor activists, lawyers and other third parties as his representative.”
Hampton points out that not only has the rule been changed to include third parties, but the wording of the rule has also been changed to eliminate examples of people who might be deemed “reasonably necessary” to conduct inspections accompany, thereby relaxing the requirements for those authorized to access construction sites during tours.
The latest rule change comes after years of disputes over OSHA inspection guidelines. In 2013, OSHA issued an interpretive letter stating that 29 CFR 1903.8(c) allows union representatives to accompany OSHA inspectors on walk-throughs, prompting the National Federation of Independent Businesses to sue the administration, with on the grounds that the interpretation exceeded OSHA's authority.
“Before a final decision could be made in this case, the Trump administration withdrew the interpretive letter in April 2017,” said Michael Billok, partner at Bond, Schoeneck & King PLLC in Melville. “The new rule, which went into effect in May 2024, is viewed as an action by the Biden administration that allows OSHA to bring union representatives to employer sites regardless of whether the employer’s workers are organized.”
A coalition of trade associations have filed a lawsuit against OSHA in response to the recent change to the walkaround rule, challenging the agency's legal authority. While the plaintiffs argue that Congress never authorized unfettered third-party access to workplaces, lawyers say the case involves questions of employers' rights. “Employers see the rule change as interfering with employers' private property rights by opening the door to a variety of nefarious third parties, such as competitors, union representatives, plaintiffs' attorneys and community organizers, by granting them access to employers' property.” Employers' objections.” says Frank Brennan, partner at Forchelli Deegan Terrana LLP in Uniondale.
Brennan also acknowledges the implication that the rule change will make union organizing easier. “Employers are keenly aware that the presence of a union representative or community organizer during an OSHA inspection is a signal that a union organizing campaign by a non-union employer is likely imminent,” he says.
The defendants, representing OSHA, have argued that the alleged harms caused by the rule change were speculative and invalidated the legal force of the lawsuit.
Worker advocacy groups support the new rule, saying it will help workers raise important concerns about hazardous conditions during workplace inspections. The National Council for Occupational Safety and Health has stated that allowing workers to select their own external experts to accompany inspections ensures that information about workplace conditions can be accurately communicated across language barriers and that the Fear of retaliation from employers can be reduced.
Lawyers understand the appeal the rule change has on employees. “It has been argued that non-union workers would benefit most from the opportunity to appoint a non-employee representative… even in situations where there is a non-employee representative who is skilled in assessing hazards in similar working conditions or “Speaks fluently in another language, such as the employees’ native language,” says Brennan. “Proponents of the rule change therefore argue that, despite OSHA’s purported expertise in safety inspections, it could allow for more thorough inspections and worker protection.”
Regardless, lawyers representing employers say the benefits of the change may be outweighed by the increase in liability. “Such access could lead to labor disputes or potentially inappropriate lawsuits,” Hampton argues. “Such authorization could also provide non-employees (including potential competitors) with access to confidential and/or proprietary information. In addition, employers could potentially expose themselves to additional liability and/or costs if they expose third parties to hazards on the construction site during the inspection itself.”
For employers faced with a construction site inspection accompanied by an unwelcome third party, lawyers can offer advice on how to neutralize any problems that may arise or avoid granting access to the construction site altogether. “At the opening meeting, ask the Compliance Safety and Health Officer (CSHO) to explain the 'good reason' for a union representative to be present,” suggests Billok. “If the company allows the representative on-site, as with any on-site inspection, management should accompany the CSHO and the representative during the walk-through to minimize interaction between the representative and employees.”
Many believe that the results of the general election could tip the balance in favor of employers. “There is some expectation that the new administration will amend the new rule by adding language that limits the use of both disinterested and interested external employee representatives who do not have demonstrable specific skills that would be necessary to conduct an inspection ,” says Brennan. “The next administration could also just revert it back to the previous rule.”
Brennan reiterates the importance of a sound legal strategy for employers. “In terms of guidance, we typically advise employers to be aware of the industry they operate in and the risks that industry poses to their employees.”