{"id":8464,"date":"2024-06-07T08:54:04","date_gmt":"2024-06-07T12:54:04","guid":{"rendered":"https:\/\/oshadefensereport.com\/?p=8464"},"modified":"2026-03-20T13:28:13","modified_gmt":"2026-03-20T17:28:13","slug":"industry-groups-and-congressional-leaders-attack-oshas-new-worker-walkaround-inspection-rule","status":"publish","type":"post","link":"https:\/\/www.connmaciel.com\/osha-defense-report\/industry-groups-and-congressional-leaders-attack-oshas-new-worker-walkaround-inspection-rule\/","title":{"rendered":"Industry Groups and Congressional Leaders Attack OSHA\u2019s New \u201cWorker Walkaround\u201d Inspection Rule"},"content":{"rendered":"

By Eric J. Conn<\/a>, Mark Trapp<\/a>, and Darius Rohani-Shukla<\/a><\/em><\/strong><\/p>\n

To advance the Biden Administration\u2019s promise to be \u201cthe most labor friendly administration in history,\u201d on April 1, 2024, OSHA published in the Federal Register its Final Worker Walkaround Representative Designation Process<\/em> Rule<\/a> (the \u201cWorker Walkaround Rule\u201d). The new Final Rule amends OSHA\u2019s regulation at 29 CFR 1903.8(c) \u2013 Representatives of Employees and Employers<\/em> \u2013 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.<\/p>\n

\"Worker<\/a>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<\/a> challenging the legality of OSHA’s new Worker Walkaround Rule<\/a>.\u00a0 The lawsuit, Chamber of Commerce v. OSHA<\/em><\/a>, seeks to postpone enforcement of OSHA’s new Worker Walkaround Rule and ultimately to permanently vacate the new regulation.<\/p>\n

Background of the Rule<\/strong><\/span><\/p>\n

The Worker Walkaround Rule permits OSHA to authorize worker representatives to accompany government inspectors during OSHA inspections, even if the selected representatives\u00a0are not employees of the company being inspected, if the inspector believes the third party will aid in an effective inspection. OSHA has not masked at all its intention that this rule would facilitate union access to non-unionized workplaces, which, of course, would promote union organizing efforts.<\/p>\n

Historical Context<\/strong><\/span><\/p>\n

As a reminder, this is not the first time such a policy has faced legal challenges. A similar policy was advanced by the Obama Administration in 2013.\u00a0 At that time, the policy was introduced through a Letter of Interpretation.\u00a0 Industry challenged the interpretation letter as a backdoor rulemaking; the interpretation so perverted the language of the regulation that it effective rewrote the rule without formal notice-and-comment rulemaking.\u00a0 As a result, in 2017, a federal judge in the Northern District of Texas questioned the policy’s legitimacy due to the lack of formal rulemaking, ultimately leading to its revocation by the Trump Administration. That case was brought by the National Federation of Independent Business (NFIB), which has also joined the challengers in the current litigation.<\/p>\n

Legal Arguments Against the Rule<\/strong><\/span><\/p>\n

The plaintiffs in the present lawsuit contend that even though OSHA went through a rulemaking process this time, the rule still has four fatal legal deficiencies. They argue that the Worker Walkaround Rule:<\/p>\n

    \n
  1. Exceeds OSHA\u2019s Statutory Authority:<\/em> By upending the entire scheme in 29 USC 657(e) and conflicting with the National Labor Relations Act (NLRA) by permitting union organizers to represent employees in non-union workplaces.<\/li>\n
  2. Violates the Fifth Amendment<\/em> by effecting a \u201cper se\u00a0taking,\u201d despite Congress not giving OSHA the authority to appropriate employers\u2019 property.<\/li>\n
  3. V<\/em>iolates the Regulatory Flexibility Act <\/em>by not preparing the required regulatory flexibility analyses. OSHA reached the preposterous conclusion that the rule would result in zero cost to employers and the economy, and therefore short-circuited some of the onerous economic analysis required of most new regulations.\u00a0 Specific impacts include the infringement on property rights and substantial costs for employers to manage visits from potentially unlimited non-expert third parties. The plaintiffs argue that OSHA’s rush to politicize workplace inspections compromised essential rulemaking principles.<\/li>\n
  4. Violates the APA <\/em>on several grounds because:<\/li>\n<\/ol>\n