Advance Notice, Potential Showcasing of Third-Party Representatives, and Other Impacts of OSHA’s Walkaround Rule

The impact of OSHA’s final rule on the Worker Walkaround Representative Designation Process (“Walkaround Rule”) appears to go far beyond eliminating the provision stating that the authorized employee representative (“AER”) for an OSHA inspection generally must be an employee of the employer at the site being inspected. That becomes clear after reviewing OSHA’s Frequently Asked Questions[1] for the Walkaround Rule.

OSHA apparently intends to provide advance notice, of not more than 24 hours, of an OSHA inspection to the “known” third-party AER(s) for the site to ensure their timely presence for participation in the inspection.[2] This is apparently how OSHA would resolve the otherwise conflicting determinations that the AER is “reasonably necessary to the conduct of an effective and thorough physical inspection” and that an inspection should not be delayed for more than an hour following the inspector’s arrival. It is unclear whether OSHA will do this on a blanket basis or attempt to factor in anticipated travel time, which can be highly variable and would not allow for scheduling conflicts. It is also unclear whether OSHA will take the same approach for “known” AER(s) employed at the site.

OSHA does not explain how an AER becomes known to OSHA in advance of an inspection, but its Q&As suggest the possibility of some type of formal filing/registration process with the responsible OSHA Area Office.[3] The filing/registration would need to provide the AER’s name and contact information, and provide adequate evidence of the AER’s authorization and the special “knowledge, skills, or experience” of the individual that would qualify him/her to serve as a third-party AER for a particular inspection. There should also be a mechanism for confirming the registration is current. Otherwise, the advance notice would appear improper.

It would not be surprising to find unions and possibly public interest groups soliciting employees at non-union sites to collectively designate their personnel as third-party AERs, and making various representations about the benefits of that designation,[4] including the ability to provide advance notice of OSHA inspections to the site’s employees.[5] OSHA says the third-party AER is there to facilitate communication rather than conduct the inspection, but it is unclear how an inspector would maintain that distinction. If the third-party AER finds ways to bring evidence of non-compliance to the inspector’s attention, is the inspector really going to try to prevent that effort, or is tacit collaboration or competition between the inspector and the third-party AER more likely?[6]

As interpreted by OSHA, the Final Rule essentially says the AER can be anybody, authorized by as few as two employees,[7] who will aid or benefit the inspection and whose conduct does not interfere with a fair and orderly inspection. OSHA stated that behavior that “may interfere” (OSHA does not say “would ordinarily interfere”) with the inspection includes “solicitation, such as handing out union authorization cards” and “distributing or handing out any material without the CSHO's review and consent,” and that “[w]earing clothing with a union name or logo would not ordinarily interfere with the inspection.” Unnumbered OSHA Q&A 17 asks: “Will CSHOs vet a third-party employee representative's qualifications?”

CSHOs inquire about the representative's knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or any relevant language or communication skills. CSHOs follow standard procedures in obtaining a representative's contact information, including the representative's name, address, telephone number, and email address, which is included in the case file. It would not be expected that the CSHO obtain any additional information from the third-party employee representative than would be requested of other employee or employer representatives.

OSHA’s response appears to overlook the fact that employers typically perform reference checks and run background checks on prospective employees but would not have the opportunity to do that for a third-party AER. 

Another significant concern is the potential for improper disclosure of trade secrets and other confidential information by a third-party AER. OSHA stated that the third-party AER would not be permitted to take photographs without the employer’s consent. The preferable approach would be to prohibit a third-party AER from bringing a camera or smart mobile phone into the facility. 

OSHA points to two other measures for protecting trade secrets and other confidential information. First, OSHA’s inspection rules permit an employer to identify areas in the establishment that contain or might reveal a trade secret. Absent “clear reason to question such identification,” OSHA personnel are directed to treat information obtained in those areas as protected trade secrets and limit the AER for those areas to an employee in that area or an employee authorized by the employer to enter that area. It is unclear how that will play out in situations where the employer asserts that most areas of the facility contain trade secrets. It is generally understood that not all confidential information falls into the category of trade secrets. 

OSHA also states that third-party AERs can be required to sign “a reasonable confidentiality agreement that is limited to the use of the confidential information learned in the inspection, on the same terms as it requires of other visitors.” It is unclear whether OSHA would consider an indemnification provision to fall within that description. The concept of an agreement limited to the same terms as the employer requires of other visitors is not an appropriate standard in that it fails to take into account the nature of the inspection activity. A confidentiality agreement suitable for an organization conducting a compliance audit would be more appropriate. None of those protections is a substitute for the criminal penalties that can be imposed on a federal employee for disclosure of confidential information under 18 USC 1905. One alternative may be to condition entry of the third-party AER on the issuance, by a federal district court, of a protective order governing the activity.

Employers should review their policies and procedures for managing OSHA inspections to assess whether they are adequate or need to be revised in light of the Walkaround Rule. Some of the more significant issues will be: 

1. What criteria will be used in determining whether to allow a particular third-party AER to participate in an OSHA inspection?
2. What ground rules will be established for the participation of the third-party AER in an OSHA inspection? Will they be included in a written agreement?
3. Will the site insist on a confidentiality agreement, and what provisions will it include?
4. What action(s) will be taken if the third-party AER or OSHA fails to follow those ground rules?
5. If a decision is made (in the absence of an inspection warrant) not to allow the third-party AER to participate in the inspection, or to terminate further participation of the third-party AER, what will be communicated to OSHA and what legal action is the employer prepared to take or going to take, to defend that position? How will the situation be handled if the OSHA inspector has obtained an inspection warrant?

[1] https://www.osha.gov/worker-walkaround/final-rule/faq.

[2] Unnumbered question 25 of the OSHA Q&As asks: “Will OSHA give third-party representatives advance notice of an inspection?” In response, OSHA notes the general prohibition against advance notice except when authorized by OSHA, lists the exceptions to that prohibition contained in the OSHA regulations – including “to ensure the presence of the employer and employee representatives,” and “when giving advance notice would enhance the probability of an effective and thorough inspection” – and then states: Providing advance notice with respect to employee representation applies only if there is a known employee representative. Advance notice to employees will not be required in the absence of such a representative [emphasis added].

[3] Unnumbered question 9 of the OSHA Q&As asks: “What is the process by which employees can designate a representative?” The response suggests some methods, including: “An authorized employee representative can also inform the CSHO or OSHA Area Office that they represent employees.”

[4] It should be remembered that this OSHA initiative was triggered by “an inquiry from a union official regarding whether a worker at a workplace without a collective bargaining agreement could authorize a person affiliated with a union or community organization to act as his representative.” Nat’l Fed’n of Indep. Bus. v. Dougherty, No.3:16–CV–2568–D, 2017 WL 1194666, at *11 (N.D. Tex. Feb. 3, 2017) (NFIB v. Dougherty)

[5] The OSHA guidance states: “Advance notice to employees will not be required in the absence of … a [known] representative [emphasis added]. It should read: “Advance notice to [the AER] will not be required in the absence of … a [known] representative [emphasis added]. If advance notice is appropriate, it should be given only to the AER, and only after the AER agrees in writing not to advise the site’s employees or anyone else of that advance notice, or take any other action likely to have that effect. Otherwise, the exceptions to the general rule against advance notice of inspections will inappropriately swallow the rule.

[6] The practical scope of the AER’s activity is also unclear. The OSH Act and the Walkaround Rule authorize the AER to accompany the inspector “during the physical inspection of any workplace.” OSHA states they will also be included in the opening conference and the closing conference (which could be virtual and long after the site walkaround), and that any confidentiality agreement “may not restrict the representative's ability to discuss information with OSHA or employees affected by the inspection, or restrict the representative's participation in any future enforcement proceedings,” which apparently includes any further investigation activities related to the inspection. 

[7] OSHA’s Q&As state: “[I]n a workplace with more than one employee, more than one employee would be needed to authorize the walkaround representative.”