Worker Walkaround Representative Designation Process

Trump 2.0, OSHA: Expect Shifts in Federal Enforcement and Rulemaking Priorities As Well As More Aggressive State Plan Enforcement

Scott Hecker 5 Comments

By Scott Hecker, Rachel L. Conn, Eric J. Conn, and Aaron R. Gelb

As the dust settles on the 2024 Election Cycle and the pundits continue analyzing and dissecting the results, the OSHA/MSHA Team at Conn Maciel Carey draws from decades of experience representing employers during Republican and Democratic administrations to forecast how the workplace safety and health landscape may change with respect to enforcement, compliance assistance, and rulemaking under a second Trump Administration.

Enforcement Resources and Priorities

At the federal level, history can provide insight into the likely priorities of a second Trump term.  As loyal readers of this blog know, OSHA operated without a confirmed Assistant Secretary for the entirety of the first Trump Administration.  While agencies lacking Senate-confirmed leaders can feel adrift and directionless, with confusion about roles, responsibilities, and priorities, it was essentially business as usual at OSHA under Trump—at least until COVID-19 hit—with other agencies facing more focused efforts to deregulate.  While it is not yet clear how quickly the second Trump Administration will turn its sights to OSHA, we’re unlikely to see a push to increase OSHA’s budget or even to backfill enforcement personnel who leave the agency.  OSHA had the fewest compliance officers in its history during the Trump Administration, and despite efforts by President Biden to increase staffing levels, the number of enforcement personnel is sure to ebb again.  Fewer compliance officers will lead to decreased enforcement activity, as well as overwhelming workloads for remaining employees, and such a combination often results in reduced morale.

OSHA under Trump 2.0 is likely to adopt more employer-friendly policies than President Biden’s current administration and could: Continue reading →

Industry Groups and Congressional Leaders Attack OSHA’s New “Worker Walkaround” Inspection Rule

Eric J. Conn 2 Comments

By Eric J. Conn, Mark Trapp, and Darius Rohani-Shukla

To advance the Biden Administration’s promise to be “the most labor friendly administration in history,” on April 1, 2024, OSHA published in the Federal Register its Final Worker Walkaround Representative Designation Process Rule (the “Worker Walkaround Rule”). The new Final Rule amends OSHA’s regulation at 29 CFR 1903.8(c) – Representatives of Employees and Employers – to open the door to participation in OSHA inspections by third parties, including union representatives at non-union workplaces, disgruntled former employees, plaintiffs’ attorneys or their experts, and scores of others.

OSHA’s new final rule went into effect on May 31, 2024, but ten days before that, on May 21st, the US Chamber of Commerce, with various other industry and business groups, filed a lawsuit in the US District Court for the Western District of Texas challenging the legality of OSHA’s new Worker Walkaround Rule.  The lawsuit, Chamber of Commerce v. OSHA, seeks to postpone enforcement of OSHA’s new Worker Walkaround Rule and ultimately to permanently vacate the new regulation. Continue reading →

Everything You Need to Know About OSHA’s New Worker Walkaround Representative Designation Process Rule

Eric J. Conn 3 Comments

By Eric Conn, Mark Trapp, and Darius Rohani-Shukla

Like a bad April Fool’s joke, to advance the Biden Administration’s promise to be “the most labor friendly administration in history,” on April 1, 2024, OSHA published in the Federal Register its Final Worker Walkaround Representative Designation Process Rule (the “Worker Walkaround Rule”). The new Final Rule amends OSHA’s regulation at 29 CFR 1903.8(c) – Representatives of Employees and Employers – and will profoundly affect employers’ legal risk in future OSHA inspections when it goes into effect on May 31, 2024.

This Client Alert covers the controversial history of this rulemaking, from an Obama Era Letter of Interpretation and related legal challenges, through the flawed rulemaking process that OSHA followed to promulgate the new rule, to a detailed review of what the final rule says and means, along with analysis about the implications for employers, expected legal challenges to the Rule, and tips and strategies for managing OSHA inspections in this new world order.

Background

OSHA’s regulation governing participation in OSHA inspection by employee representatives, 29 C.F.R. 1903.8(c), was established in 1993, and it granted employees and their representatives the right to accompany OSHA compliance officers during the physical walkaround phase of workplace inspections.  In February 2013, the Obama-Biden Administration sought to give union representatives authority to participate in OSHA inspections at non-union workplaces by way of a formal Letter of Interpretation.  The interpretation letter responded to an inquiry by a labor union about inspection rights:

“May workers at a worksite without a collective bargaining agreement designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative?”

That question had to be considered within the context of the existing regulatory text of 29 C.F.R. 1903.8(c) at that time:

“The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.”

Notwithstanding pretty clear regulatorylimitations to third party inspection participation rights, including an expectation that any third party participant must have some type of technical credential (e.g., professional safety engineer or certified industrial hygiene), OSHA responded to the union’s interpretation request in the affirmative, explaining: Continue reading →

BREAKING: OSHA Issues Final Worker Walkaround Representative Designation Process Rule

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By Eric Conn, Mark Trapp, and Darius Rohani-Shukla

After an unusually short time at OMB, earlier today, OSHA revealed a pre-publication version of its Final Worker Walkaround Representative Designation Process Rule.  The Official Final Rule will issue when it is published in the Federal Register next week, on April 1, 2024, and it will go into effect on May 31, 2024.

As expected, OSHA pushed this rule out ahead of the Congressional Review Act window – 60 legislative days before a possible transition to a new Administration and new Congress. By issuing the rule this far ahead of the next election, OSHA has avoided the risk that a possible new Republican Congress and President could repeal this rule under the CRA, preventing OSHA from ever promulgating a substantially similar rule in the future.

As a reminder, OSHA initially sought to amend its existing regulation at 29 CFR § 1903.8(c) in three ways:

  1. Changing the extreme bias against third party employee representative participation in OSHA inspections by changing existing language to allow non-employee third parties to act as employee representatives during OSHA inspections;
  2. Expanding the types of third parties permitted to represent employees during OSHA inspections by changing existing language limiting such representatives to credentialed certified industrial hygienists or professional safety engineers, to now permitting any third-party representative who has “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills”; and
  3. Expanding the role these third-party representatives play during an OSHA inspection from simply “accompanying” OSHA during the physical walkaround phase of the inspection, to “participating” in the inspection, which presumably would include attending and asking questions during private employee interviews, reviewing the employer’s records produced to OSHA pursuant to OSHA’s broad subpoena authority, etc.

Conn Maciel Carey’s OSHA Rulemaking Coalition pushed back on all of these changes, and it appears we achieved a little success.  Here is the new final regulatory text: Continue reading →

OSHA’s Worker Walkaround Rule Clears OMB Review – Final Rule Is Imminent

Eric J. Conn 2 Comments

By Eric Conn, Mark Trapp, and Darius Rohani-Shukla

We have an important update to share about the status and now more clear outcome of OSHA’s rulemaking for a Worker Walkaround Designation Process Rule.  Yesterday, OMB updated the entry on its website about the Worker Walkaround Rulemaking to reflect that OMB/OIRA has concluded its regulatory review under EO 12866, cancelling the remaining stakeholder meetings that had been scheduled.  In total, OMB hosted sixteen EO 12866 stakeholder meetings.  The entry reflecting the EO 12866 meeting with Conn Maciel Carey’s Rulemaking Coalition’s is here.

As you can see below, OMB has updated its entry for this rulemaking to reflect: “OIRA Conclusion of EO 12866 Review.”

What we can also see from this entry is that OMB has, unfortunately, NOT Continue reading →

OSHA Sends Proposed Final “Worker Walkaround Representative Designation Process” Rule to OMB

Darius Rohani-Shukla 1 Comment

By Eric Conn, Mark Trapp, and Darius Rohani-Shukla

In early 2023, OSHA revealed plans for a rulemaking for a Worker Walkaround Representative Designation Process Rule that would amend existing regulation 29 CFR § 1903.8(c), which governs participation by third parties in OSHA inspections as employee representatives. The proposed rule changes three key components of that regulation:

  1. Changing the existing language that historically has generally limited employee representation during an OSHA inspection to individuals who are employees of the employer that is being inspected, to now allow non-employee third parties to act as employee representatives during OSHA inspections.
  2. Expanding the types of third parties permitted to represent employees during OSHA inspections. The existing regulation focuses on non-employees with a technical credential, “such as an industrial hygienist or a safety engineer” to accompany OSHA on an inspection when it “is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace[.]” The new Proposal eliminates the limitation to these technical experts, and indicates that a third party representative may be “reasonably necessary” because of “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills.”
  3. The proposed rule may also expand the role these third party representatives play during an OSHA inspection. The OSH Act and the existing regulation speak in terms of the representative “accompanying” OSHA during the walkaround phase of the inspection, but the proposed amended rule introduces the term “participate,” which could mean OSHA intends for these third parties to have a more active role; e.g., attending and asking questions during private employee interviews, reviewing the employer’s records produced to OSHA pursuant to OSHA’s broad subpoena authority, etc.

Continue reading →

Update About OSHA’s Worker Walkaround Designation Process Rulemaking

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By Eric Conn, Mark Trapp, and Darius Rohani-Shukla

Back in Q1 of 2023, OSHA revealed plans for a rulemaking for a Worker Walkaround Representative Designation Process Rule, and we have been tracking the rulemaking on the OSHA Defense Report blog since that time.  Specifically, the Worker Walkaround Representative Designation Process rulemaking proposes to amend the existing regulation at 29 CFR § 1903.8(c), which governs participation by third parties in OSHA inspections as employee representatives. The proposed rule changes three key components of the existing regulation:

  1. Changing the existing language that historically has generally limited employee representation during an OSHA inspection to individuals who are employees of the employer being inspected, to now allow non-employee third parties to act as representatives; and
  2. Expanding the types of third parties permitted to represent employees during OSHA inspections. The existing regulation allows a non-employee “such as an industrial hygienist or a safety engineer” to accompany an OSHA compliance officer during an inspection when it “is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace[.]” The specific reference in the regulation to these technical credential has meant that only representatives with relevant technical expertise, credentials, or unique language skills have been permitted to accompany OSHA.  The new Proposal eliminates the limitation to these technical experts, and indicates that a third party representative may be “reasonably necessary” because of “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language skills.”
  3. The proposed rule may also expand the role these third party representatives can play during the inspection. The OSH Act and the existing regulation speak in terms of the employee representative “accompanying” OSHA during the walkaround phase of the inspection, but the proposed amended rule introduces the term “participate,” which could mean OSHA intends for these third parties to have a more active role; e.g., attending and asking questions during private employee interviews, reviewing the employer’s records produced to OSHA, etc.

Conn Maciel Carey’s national OSHA and Labor & Employment Practice Groups formed the Employers Walkaround Representative Rulemaking Coalition, composed of a broad and diverse group of employers and trade associations representing many industries, including retail, manufacturing, petroleum refining, construction, food manufacturing and distribution, agricultural, and more, with millions of employees across thousands of workplaces in every state in the US. On behalf of that rulemaking coalition, we recently submitted a comprehensive set of written comments to OSHA’s rulemaking docket.  In this post, we provide you with a summary of our comments that detailed:

  1. The concerning ways the proposed rule would impact employers;
  2. How the proposed rule conflicts with the OSH Act, the National Labor Relations Act, and the US Constitution; and
  3. How the rulemaking process has violated the Administrative Procedure Act and Executive Order 12866

The written comments submitted on behalf of the Employers Walkaround Representative Rulemaking Coalition, available here (https://www.regulations.gov/comment/OSHA-2023-0008-1976), present our concerns that the Proposal would open a flood gate to a multitude of workplace disruptions.  Specifically, we explained how: Continue reading →

OSHA Proposes Rule that May Allow Union Organizers and Plaintiffs’ Attorneys to “Walk Around” Workplaces

Eric J. Conn 2 Comments

By Eric J. Conn and Mark Trapp

Earlier this month, OSHA issued a Notice of Proposed Rulemaking for a “Worker Walkaround Representative Designation Process” Rule, which would expand the circumstances when non-employees, particularly union representatives at non-union workplaces, can accompany OSHA inspectors during enforcement inspections.

The proposed rule would allow union representatives, other labor or community activist groups, and even plaintiffs’ attorneys (or their expert witnesses) direct and early access to non-union workplaces and employees, potentially as a front for organizing campaigns where they otherwise would not have access or to advance personally injury lawsuits. Similarly, the rule could allow competitors, contractors, or others onsite to employers’ detriment.

The Washington Legal Foundation featured an article by Eric J. Conn of Conn Maciel Carey’s national OSHA Practice and Mark Trapp of CMC’s Labor & Employment Practice about this development. Here is a link to the WLF article.

Employers OSHA Inspection Walkaround Rulemaking Coalition

With that backdrop, we understand that employers have a strong interest in having a seat at the table for this rulemaking.  To that end, Conn Maciel Carey’s OSHA Practice and Labor Law Practice are collaborating to organize a fee-based company-anonymous coalition of employers and trade groups to advocate for the most reasonable possible fed OSHA regulation about third party participation in OSHA inspections. Continue reading →

Join CMC’s Employer Coalition to Work on OSHA’s Inspection Walkaround Rulemaking (Expanding Union Access to Non-Union Workplaces)

Eric J. Conn 1 Comment

By Eric J. Conn and Mark Trapp

We wanted to reach out to notify you about OSHA’s latest gift to organized labor.  Consistent with the Biden Administration’s promise to be “the most labor-friendly administration in history,” last week, OSHA revealed its Notice of Proposed Rulemaking about the “Worker Walkaround Representative Designation Process.”  Specifically, OSHA proposes to amend 29 CFR 1903.8(c), which is the regulation governing the rights of third parties to participate as employee representatives in OSHA inspections. The NPRM for OSHA’s Inspection Walkaround Rule would greatly expand when non-employees can accompany OSHA inspectors during physical inspections at your workplaces.  Specifically, the proposed rule would open the door to third parties, including specifically union representatives even at non-union workplaces, if the OSHA compliance officer determines the third party would positively impact the inspection.

History of Union Access to Workplaces During OSHA Inspections

As a reminder, The Obama/Biden Administration tried to contort the meaning of the Inspection Walkaround regulation by granting union representatives the ability to participate in OSHA inspections at non-union workplaces by way of a formal letter of interpretation in February 2013.  The interpretation letter responded to this inquiry by a labor union: “May workers at a worksite without a collective bargaining agreement designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative?”

OSHA has an existing regulation at 29 C.F.R. § 1903.8(c) that speaks to this issue, and it sets a strong bias against third party participation in OSHA inspections, unless the third party has some special skill (such as industrial hygienist or a language translator) that OSHA is lacking.  Here is the existing regulatory text: Continue reading →