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Commerce Chamber Sues Over Walkaround Rule

TUESDAY, MAY 28, 2024


Last week, the U.S. Chamber of Commerce and a coalition of business groups filed a lawsuit against the U.S. Occupational Safety and Health Administration’s new walkaround inspection rule.

The suit alleges that OSHA has “upended over 50 years of precedent by dramatically expanding the type of third parties allowed to accompany inspectors during walkarounds.”

About the Rule

At the end of March, the U.S. Department of Labor published a final rule clarifying the rights of employees to authorize a representative to accompany an OSHA compliance officer during a workplace inspection.

According to the release from OSHA, the Occupational Safety and Health Act gives the employer and employees the right to authorize a representative to accompany OSHA officials during a workplace inspection.

However, the final rule clarifies that, consistent with the law, workers may authorize another employee to serve as their representative or select a non-employee. For a non-employee representative to accompany the compliance officer in a workplace, they must be reasonably necessary to conduct an effective and thorough inspection.

The rule also explains that a non-employee representative may be reasonably necessary based upon skills, knowledge or experience. This may include knowledge or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills to ensure an effective and thorough inspection.

aydinmutlu / Getty Images
Last week, the U.S. Chamber of Commerce and a coalition of business groups filed a lawsuit against the U.S. Occupational Safety and Health Administration’s new walkaround inspection rule.
aydinmutlu / Getty Images

Last week, the U.S. Chamber of Commerce and a coalition of business groups filed a lawsuit against the U.S. Occupational Safety and Health Administration’s new walkaround inspection rule.

According to OSHA, these revisions better align to the regulation with the OSH Act and enable the agency to conduct more effective inspections. These regulations reportedly require no specific qualifications for employer representatives or for employee representatives who are employed by the employer.

The rule is in part a response to a 2017 court decision ruling that the agency's existing regulation, 29 CFR 1903.8(c), only permitted employees of the employer to be authorized as representatives.

However, the court acknowledged that the OSH Act does not limit who can serve as an employee representative and that OSHA's historic practice was a “persuasive and valid construction” of the OSH Act.

The recent final rule is the culmination of notice and comment rulemaking that clarifies OSHA's inspection regulation and aligns with OSHA's longstanding construction of the act, the administration explains.

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The lawsuit, filed in the Western District of Texas, Waco Division, alleges that now union organizers, activists, plaintiffs’ attorneys and competitors will have access to workplaces “under the guise of ‘assisting’” OSHA inspectors.

The coalition explains that the OSH Act permitted employee representatives to accompany the inspectors, which was generally limited to employees themselves, with very limited exceptions.

However, the presence of these third parties will reportedly expose companies to excessive lawsuits and unionization efforts, cause disturbances, reveal confidential business information, and raise safety concerns.

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“OSHA’s new walkaround rule is the Administration’s latest regulation to take a 'whole-of-government' approach to promoting unionization at all costs,” said Marc Freedman, vice president of the U.S. Chamber of Commerce’s Employment Policy Division.

“OSHA claims this rule is about workplace safety, but as some union organizers have publicly admitted this rule is about gaining access to nonunionized workplaces to advance their organizing campaigns."

The chamber is reportedly joined by co-plaintiffs, including the Greater Waco Chamber of Commerce, Longview Chamber of Commerce, Associated Builders and Contractors, Alliance for Chemical Distribution, Associated General Contractors, International Franchise Association, International Warehouse Logistics Association, National Association of Manufacturers, National Association of Wholesaler-Distributors, National Federation of Independent Business, and National Retail Federation.

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The full complaint can be viewed here.

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Tagged categories: Business operations; Coating inspection; Contractors; Department of Commerce; Department of Labor; Inspection; Labor; Lawsuits; OSHA; OSHA; Program/Project Management; Regulations


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