Updated Walkaround Rule: OSHA Allows Union Access During Site Inspection

On May 31, 2024, 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 alter the regulation by removing 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 to serve as the representative. The change allows a representative to be a union organizer who has been selected by employees to serve as a 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

For a third-party representative to be eligible to attend the walk through, they are no longer required to show formal credentials to be eligible to serve as the representative. Instead, the third party must only show that they have a variety of skills, knowledge, or experience that could aid the Compliance Safety and Health Officer’s (CSHO) inspection. In addition, the prospective third-party representative must show “good cause” as to why their accompaniment in the inspection is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.   

The third-party representative’s role in the inspection is typically limited to accompanying the CSHO inspector during the walkaround portion of the inspection. The representative may ask clarifying questions. The representative may also attend the opening and closing conferences. The changes to the walkaround rule did not alter the ground rules for an inspection and continue to ensure that both employer and employee representatives may not disrupt or interfere with a fair and orderly inspection. For example, an employee representative may not wander away from the inspection or go into unauthorized areas. The third party may not take unauthorized photographs or videos and may not engage in solicitation by handing out union authorization cards. The third-party representative may not distribute or hand out any material without the CSHO’s review and consent.   

Bottom Line

It is important for employers to understand that the update to the walkaround rule will allow union representatives to attend the inspection. In a non-union shop, the presence of a union representative signals that a union organizing campaign is likely imminent. It will be particularly important for all employers to conduct training to direct management staff on the importance of understanding their employees’ rights under the National Labor Relations Act and ensuring that managers understand how to lawfully deal with protected concerted activity.    

This article, slightly modified to note recent updates, was featured online in the Wisconsin Employment Law Letter and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.