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Employers Fight Walkaround ‘Rule’

A federal judge decided in February that a guidance letter issued by the Occupational Safety and Health Administration granting union “walkaround” rights was really a rule and can be challenged in court.

OSHA published the interpretation letter in 2013 allowing employees at non-union workplaces to designate non-employees, including outside union officials or “community representatives” (meaning union organizers), to accompany them on OSHA “walkaround” inspections of the workplace.

The National Federation of Independent Business challenged the agency’s letter in federal district court on behalf of a member who faced this issue.

OSHA had allowed a representative of the Service Employees International Union to accompany one of its inspectors in examining a facility where the union represented none of the employees.

OSHA asked the court to dismiss the lawsuit, claiming NFIB lacked legal standing to bring the case and for several procedural reasons. The district court judge disagreed.

The judge also held that “the letter flatly contradicts a prior legislative rule as to whether the employee representative in such a walkaround inspection must himself be an employee.”

OSHA’s existing rules make clear that employees can ask for an “authorized representative” to accompany the agency’s inspector, but only if that person is another employee.

Under OSHA rules the only exceptions are rare cases where good cause is shown why an outside person who is not an employee — such as an industrial hygienist or a safety engineer — is needed to conduct of an effective and thorough inspection.

That means the NFIB may argue that to change this, OSHA was required do so under the law that applies to rulemaking proceedings, including posting a proposal and soliciting public comment.

It remains to be seen whether OSHA will pursue this case under the new Trump Administration.

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