# Worker Walkaround Representative Designation Process

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2024-06572

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** April 1, 2024
- **Citation:** 89 FR 22558

## Text

DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Part 1903
[Docket No. OSHA-2023-0008]
RIN 1218-AD45
Worker Walkaround Representative Designation Process

AGENCY:

Occupational Safety and Health Administration (OSHA), Labor.

ACTION:

Final rule.

SUMMARY:

In this final rule, OSHA is amending its Representatives of Employers and Employees regulation to clarify that the representative(s) authorized by employees may be an employee of the employer or a third party; such third-party employee representative(s) may accompany the OSHA Compliance Safety and Health Officer (CSHO) when, in the judgment of the CSHO, good cause has been shown why they are reasonably necessary to aid in the inspection. In the final rule, OSHA also clarified that a third party may be reasonably necessary because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills. OSHA concluded that these clarifications aid OSHA's workplace inspections by better enabling employees to select representative(s) of their choice to accompany the CSHO during a physical workplace inspection. Employee representation during the inspection is critically important to ensuring OSHA obtains the necessary information about worksite conditions and hazards.

DATES:

Effective date:
This final rule is effective on May 31, 2024.

Docket:
To read or download comments or other information in the docket, go to Docket No. OSHA-2023-0008 at
https://www.regulations.gov.
All comments and submissions are listed in the
https://www.regulations.gov
index; however, some information (
e.g.,
copyrighted material) is not publicly available to read or download through that website. All comments and submissions, including copyrighted material, are available for inspection through the OSHA Docket Office. Contact the OSHA Docket Office at (202) 693-2350 (TDY number 877-889-5627) for assistance in locating docket submissions.

When citing exhibits in the docket in this final rule, OSHA includes the term “Document ID” followed by the last four digits of the Document ID number. Citations also include, if applicable, page numbers (designated “p.”), and in a limited number of cases a footnote number (designated “Fn.”). In a citation that contains two or more Document ID numbers, the Document ID numbers are separated by semi-colons (
e.g.,
0001; 0002).

FOR FURTHER INFORMATION CONTACT:

Press inquiries:
Frank Meilinger, Director, OSHA Office of Communications, telephone: (202) 693-1999; email:
meilinger.francis2@dol.gov.

General and technical inquiries:
Scott Ketcham, OSHA Directorate of Construction, telephone: (202) 693-2020; email:
ketcham.scott@dol.gov.

Copies of this

Federal Register
notice and news releases:
Electronic copies of these documents are available at OSHA's web page at
https://www.osha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary

II. Background

A. The OSH Act and OSHA's Inspection Authority

B. Regulatory History and Interpretive Guidance

C. Litigation and Subsequent Agency Enforcement Actions

III. Legal Authority

IV. Summary and Explanation of the Rule

A. The Need for and Benefits of Third-Party Representation

1. Comments Supporting Third-Party Representation

2. Comments Opposed to Third-Party Representation

3. Conclusion on the Need for and Benefits of Third-Party Representatives

B. The “Good Cause” and “Reasonably Necessary” Requirement

1. Comments That Supported Removing the CSHO's “Good Cause” and “Reasonably Necessary” Determination Requirement in Some Form

2. Comments That Generally Supported Retaining the Existing “Good Cause” and “Reasonably Necessary” Requirement and Opposed the NPRM's Alternatives

3. Conclusion on the “Good Cause” and “Reasonably Necessary” Requirement

C. Role of the Employee Representative in the Inspection

D. Constitutional Issues

1. First Amendment Issues

2. Fourth Amendment Issues

3. Fifth Amendment Issues

4. Due Process Issues

5. Tenth Amendment Issues

E. National Labor Relations Act and Other Labor-Related Comments

F. Administrative Issues

1. Administrative Procedure Act

a. Consistency With the OSH Act

b. Consistency With Other OSHA Regulations

c. Basis for the Rule

d. Specificity of the Rule

2. Public Hearing

G. Practical and Logistical Issues

H. Liability Issues

I. Other Issues

V. Final Economic Analysis and Regulatory Flexibility Act Certification

A. Introduction

B. Costs

1. Rule Familiarization

2. Training

3. Providing PPE

4. Policy Development, Revisions, and Planning

5. Legal Advice and Consultations

6. Insurance and Liability Costs

7. Protecting Trade Secrets and Confidential Business Information

8. Hiring Experts

9. Costs to State Plan States

10. Societal Costs

C. Benefits

D. Regulatory Flexibility Certification

E. Small Business Regulatory Enforcement Fairness Act

VI. Office of Management and Budget (OMB) Review Under the Paperwork Reduction Act

VII. Federalism

VIII. State Plans

IX. Unfunded Mandates Reform Act

X. Consultation and Coordination With Indian Tribal Governments

XI. Environmental Impact Assessment

XII. List of Subjects

XIII. Authority and Signature

I. Executive Summary

Since the Occupational Safety and Health Act of 1970 (OSH Act or Act) was passed in 1970, section 8(e) of the OSH Act has required that, subject to regulations issued by the Secretary of Labor (via OSHA), a representative of the employer and a representative authorized by employees “shall” each have the opportunity to accompany OSHA during the physical inspection of the workplace (
i.e.,
“the walkaround”) for the purpose of aiding OSHA's inspection. One of section 8(e)'s implementing regulations, at 29 CFR 1903.8(c), provided that a representative authorized by employees “shall be an employee(s) of the employer.” However, that regulation also created an exception for “a third party who is not an employee of the employer” when, “in the judgment of the Compliance Safety and Health Officer, good cause has been shown” why the third party was “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace. . . .” 29 CFR 1903.8(c) (1971). The regulation pointed to two non-exhaustive examples—a safety engineer and an industrial hygienist.

While OSHA has long permitted employee representatives to be third parties pursuant to 29 CFR 1903.8(c), in

2017, a district court concluded that interpretation was not consistent with the regulation. Because the first sentence of 1903.8(c) explicitly stated that employee representatives “shall be employees of the employer,” it rejected OSHA's interpretation as “flatly contradict[ing]” the regulation.
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
). However, the district court also recognized that OSHA's interpretation that third parties could be employee representatives was a “persuasive and valid” reading of section 8(e) of the OSH Act. Id. at 12. The court concluded that “the Act merely provides that the employee's representative must be authorized by the employees, not that the representative must also be an employee of the employer.” Id.

This final rule has a narrow purpose and makes two changes to 1903.8(c). First, in response to the district court's decision, it clarifies that consistent with Section 8(e) of the OSH Act, employee representatives may either be an employee of the employer or a third party. Second, consistent with OSHA's longstanding practice, it clarifies that a third-party representative authorized by employees may have a variety of skills, knowledge, or experience that could aid the CSHO's inspection. The latter revision clarifies that employees' options for third-party representation during OSHA inspections are not limited to only those individuals with skills and knowledge similar to that of the two examples (industrial hygienist or safety engineer) provided in the prior regulatory text. OSHA has retained the longstanding requirement in 1903.8(c) that third-party representatives may accompany the CSHO when good cause has been shown why they are reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.

These revisions to 1903.8(c) do not change the CSHO's authority to determine whether good cause has been shown why an individual is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace. See 29 CFR 1903.8(b). The revisions also do not affect other provisions of section 1903.8, such as the CSHO's authority to deny the right of accompaniment to any individual whose conduct interferes with a fair and orderly inspection (29 CFR 1903.8(d)), the requirement that the conduct of inspections preclude unreasonable disruption of the operations of the employer's establishment (29 CFR 1903.7(d)), or the employer's right to limit entry of employee authorized representatives into areas of the workplace that contain trade secrets (29 CFR 1903.9(d)).

As discussed below, OSHA's revisions will better align the language in 1903.8(c) with the language and purpose in section 8(e) of the OSH Act, 29 U.S.C. 657(e). By clarifying who can serve as employees' walkaround representative, the rule facilitates improved employee representation during OSHA inspections. Employee representation is vital to thorough and effective OSHA inspections, and OSHA finds these changes will improve the effectiveness of OSHA inspections and benefit employees' health and safety. OSHA determined that the rule appropriately recognizes employees' statutory right to a walkaround representative and OSHA's need for thorough and effective inspections while still protecting employers' privacy and property interests. Additionally, OSHA has concluded that this rule will not increase employers' costs or compliance burdens.

II. Background

A. The OSH Act and OSHA's Inspection Authority

The OSH Act was enacted “to assure so far as possible every working [person] in the Nation safe and healthful working conditions and to preserve our human resources” (29 U.S.C. 651(b)). To effectuate the Act's purpose, Congress authorized the Secretary of Labor to promulgate occupational safety and health standards (see 29 U.S.C. 655). The Act also grants broad authority to the Secretary to promulgate rules and regulations related to inspections, investigations, and recordkeeping (see 29 U.S.C. 657).

Section 8 of the OSH Act states that OSHA's inspection authority is essential to carrying out the Act's purposes and provides that employers must give OSHA access to inspect worksites “without delay” (29 U.S.C. 657(a)). Section 8(e) of the Act provides specifically that “[s]ubject to regulations issued by the Secretary, a representative of the employer and a representative authorized by [its] employees shall be given an opportunity to accompany [the CSHO] for the purpose of aiding such inspection” (29 U.S.C. 657(e)). Section 8(g) further authorizes the Secretary to promulgate such rules and regulations as the agency deems necessary to carry out the agency's responsibilities under this Act, including rules and regulations dealing with the inspection of an employer's establishment (29 U.S.C. 657(g)).

B. Regulatory History and Interpretive Guidance

On May 5, 1971, OSHA proposed rules and general policies for the enforcement of the inspection, citation, and penalty provisions of the OSH Act. (36 FR 8376, May 5, 1971). OSHA subsequently issued regulations for inspections, citations, and proposed penalties at 29 CFR part 1903. (36 FR 17850, Sept. 4, 1971).

The OSH Act and 29 CFR part 1903 provide CSHOs with significant authority to conduct OSHA's inspections. Part 1903 contains specific provisions that describe the CSHO's authority and role in carrying out inspections under the OSH Act. For example, the CSHO is in charge of conducting inspections and interviewing individuals and has authority to permit additional employer representatives and representative(s) authorized by employees to accompany the CSHO during the physical inspection of the workplace. See 29 CFR 1903.8(a). In addition, the CSHO has the authority to resolve any disputes about who the employer and employee representatives are and to deny any person the right of accompaniment if their conduct interferes with a fair and orderly inspection. See 29 CFR 1903.8(b), (d). The CSHO also has authority to use various reasonable investigative methods and techniques, such as taking photographs, obtaining environmental samples, and questioning individuals while carrying out their inspection. 29 CFR 1903.7(b); see also 1903.3(a).

Section 1903.8(c), the subject of this rulemaking, authorizes the CSHO to determine whether third-party representatives would aid OSHA's physical inspection of a workplace. Prior to this rulemaking, section 1903.8(c) provided: “The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection.” 29 CFR 1903.8(c) (1971). This paragraph, which primarily addresses employer and employee representatives during inspections, had not been revised since it was adopted in 1971.

Since issuing its inspection-related regulations, OSHA has provided guidance on its interpretation of section 1903.8(c) and the meaning of “representative authorized by employees” for purposes of the OSHA walkaround inspection. For example, on March 7, 2003, OSHA issued a letter of interpretation to Mr. Milan Racic (Racic letter), a health and safety specialist with the International Brotherhood of Boilermakers (Document ID 0002). Mr. Racic asked whether a union representative who files a complaint on behalf of a single worker could then also act as a walkaround inspection representative in a workplace that has no labor agreement or certified bargaining agent (Document ID 0002). In its response letter, OSHA stated that there was no “provision for a walkaround representative who has filed a complaint on behalf of an employee of the workplace” (Document ID 0002).

On February 21, 2013, OSHA issued a letter of interpretation to Mr. Steve Sallman (Sallman letter) of the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (Document ID 0003). Mr. Sallman asked whether workers at a worksite without a collective bargaining agreement could designate a person affiliated with a union or a community organization to act on their behalf as a walkaround representative. OSHA responded in the affirmative, explaining that such person could act on behalf of employees as long as they had been authorized by employees to serve as their representative.

OSHA further explained that the right is qualified by 29 CFR 1903.8, which gives CSHOs the authority to determine who can participate in an inspection. OSHA noted that while 1903.8(c) acknowledged that most employee representatives will be employees of the employer being inspected, the regulation also “explicitly allows walkaround participation by an employee representative who is not an employee of the employer when, in the judgment of the OSHA compliance officer, such representative is `reasonably necessary to the conduct of an effective and thorough physical inspection' ” (Document ID 0003). OSHA explained that such representatives are reasonably necessary when they will make a positive contribution to a thorough and effective inspection (Document ID 0003).

OSHA gave several examples of how an authorized employee representative who was not an employee of the employer could make an important contribution to the inspection, noting that the representative might have a particular skillset or experience evaluating similar working conditions in a different facility. OSHA also highlighted the usefulness to workers and to the CSHO of an employee representative who is bilingual or multilingual to better facilitate communication between employees and the CSHO during an inspection.

Additionally, OSHA noted that the 2003 Racic letter had inadvertently created confusion among the regulated community regarding OSHA's interpretation of an authorized employee representative for walkaround inspection purposes. OSHA explained that the Racic letter merely stated that a non-employee who files a complaint does not necessarily have a right to participate in an inspection arising out of that complaint, but that it did not address the rights of workers without a certified or recognized collective bargaining agent to have a representative of their own choosing participate in an inspection. OSHA withdrew the Racic letter to eliminate any confusion and then included its interpretation of 29 CFR 1903.8(c) as to who could serve as an authorized employee representative when it updated its Field Operations Manual (FOM) CPL 02-00-159 on October 1, 2015 (Document ID 0004). The FOM explained that “[i]t is OSHA's view that representatives are `reasonably necessary', when they make a positive contribution to a thorough and effective inspection” and recognized that there may be cases in which workers without a certified or recognized bargaining agent would authorize a third party to represent the workers on the inspection (Document ID 0004). OSHA noted that “[t]he purpose of a walkaround representative is to assist the inspection by helping the compliance officer receive valuable health and safety information from workers who may not be able or willing to provide such information absent the third-party participants” (Document ID 0004)

C. Litigation and Subsequent Agency Action

In September 2016, several years after OSHA issued the Sallman letter, the National Federation of Independent Business (NFIB) filed a suit in the district court for the Northern District of Texas challenging the Sallman letter, arguing it should have been subject to notice and comment rulemaking and that it conflicted with OSHA's regulations and exceeded OSHA's statutory authority.
NFIB
v.
Dougherty,
2017 WL 1194666. On February 3, 2017, the district court concluded that OSHA's interpretation as stated in the Sallman letter was not consistent with 29 CFR 1903.8(c) and such a change to a regulation could not be made without notice and comment rulemaking. Id. at *11. The district court held that the letter “flatly contradicts a prior legislative rule as to whether the employee representative must himself be an employee.” Id.

Nevertheless, the court rejected NFIB's claim that the Sallman letter conflicted with the OSH Act, finding that OSHA's Sallman letter of interpretation was “a persuasive and valid construction of the Act.” Id. at *12. The court concluded that “the Act merely provides that the employee's representative must be authorized by the employees, not that the representative must also be an employee of the employer.” Id.

Following this decision, on April 25, 2017, OSHA rescinded the Sallman letter (Document ID 0006). OSHA also revised the Field Operations Manual to remove language that incorporated the Sallman letter (CPL 02-00-163 (09/13/2019), Document ID 11544).

On August 30, 2023, OSHA published a notice proposing revisions of 29 CFR 1903.8(c) to clarify who may serve as a representative authorized by employees for the purpose of OSHA's walkaround inspection (88 FR 59825).

III. Legal Authority

The OSH Act authorizes the Secretary of Labor to issue safety and health “standards” and other “regulations.” See,
e.g.,
29 U.S.C. 655, 657. An occupational safety and health standard, issued pursuant to section 6 of the Act, prescribes measures to be taken to remedy an identified occupational hazard. See 29 U.S.C. 652(8) (an occupational safety and health standard “requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.”). In contrast, a “regulation” is issued pursuant to general rulemaking authority found, inter alia, in section 8 of the Act, and establishes an “enforcement or detection procedure designed to further the goals of the Act generally.”
Workplace Health and Safety Council
v.
Reich,
56 F. 3d 1465, 1468 (D.C. Cir. 1995). Although the U.S. Chamber of Commerce (Chamber of Commerce) suggested that this rule should be subject to the requirement that “occupational safety and health standards” be “reasonably necessary”

under section 3(8) of the OSH Act, (Document 1952, p. 2), inspection-related requirements, such as the requirements in 1903.8(c), are properly characterized as regulations because they do not require “conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.” 29 U.S.C. 652(8).

In this rulemaking, OSHA is revising its existing regulation at 1903.8(c) pursuant to OSHA's authority under section 8 of the OSH Act. See 29 U.S.C. 657(e) (describing the Secretary's authority to promulgate regulations related to employer and employee representation during an inspection); 657(g)(2) (describing the Secretary of Labor's and the Secretary of Health and Human Services' authority to “each prescribe such rules and regulations as [they] may deem necessary to carry out their responsibilities under this Act, including rules and regulations dealing with the inspection of an employer's establishment”). This rule clarifies employees' statutory right to a walkaround representative under section 8 of the OSH Act and does not impose any new substantive inspection-related requirements.

Several provisions of the OSH Act underscore OSHA's authority to promulgate inspection-related requirements, including those that relate to the rights of employees to have an authorized representative accompany OSHA during a physical inspection of their workplace. Section 2 of the OSH Act states that the Act's express purpose is “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” 29 U.S.C. 651(b). To effectuate that purpose, Congress provided OSHA with broad authority under section 8 to conduct inspections of workplaces and records, to require the attendance and testimony of witnesses, and to require the production of evidence. See generally 29 U.S.C. 657. OSHA's ability to carry out workplace inspections is critical to the OSH Act's entire enforcement scheme. See 29 U.S.C. 658 (authorizing OSHA to issue citations for violations following an inspection or investigation); 659 (citations shall be issued within a reasonable time after inspection or investigation). Moreover, any approved State occupational safety and health plan must provide for an OSHA inspector's right of entry and inspection that is at least as effective as the OSH Act. See 29 U.S.C. 667(c)(3).

In addition to granting OSHA broad authority to conduct workplace inspections and promulgate regulations to effectuate those inspections, Congress also recognized the importance of ensuring employee participation and representation in the inspection process. The legislative history of section 8 of the OSH Act shows Congress' intent to provide representatives authorized by employees with an opportunity to accompany the inspector in order to benefit the inspection process and “provide an appropriate degree of involvement of employees.” S. Rep. No. 91-1282 91st Cong., 2nd Sess. (1970), reprinted in Legislative History of the Occupational Safety and Health Act of 1970 at 151 (Comm. Print 1971). Senator Harrison A. Williams of New Jersey, who was a sponsor of the bill that became the OSH Act, explained that the opportunity for workers themselves and a representative of their choosing to accompany OSHA inspectors was “manifestly wise and fair” and “one of the key provisions of the bill.” Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 92d Cong. 1st Sess., reprinted in Legislative History of the Occupational Safety and Health Act of 1970, at 430 (Comm. Print. 1971).

The OSH Act's legislative history further indicates that Congress considered potential concerns related to the presence of a representative authorized by employees at the inspection and ultimately decided to expressly include this right in section 8(e) of the Act. Congressional debate around this issue included concern from some members of Congress that the presence in the inspection of a representative authorized by employees would cause an undue burden on employers or be used as “an effort to ferment labor unrest.” See Comments of Congressperson William J. Scherle of Iowa, 92d Cong. 1st Sess., reprinted in Legislative History of the Occupational Safety and Health Act of 1970, at 1224 (Comm. Print 1971); see also Comments of Congressperson Michel of Illinois, id. at 1057. Similarly, Senator Peter Dominick of Colorado proposed an amendment to the Senate bill that would have removed the right of a representative authorized by the employees to accompany the CSHO and instead would have only required that the CSHO consult with employees or their representative at “a reasonable time.” Proposed Amendment No. 1056, 92d Cong. 1st Sess., reprinted in Legislative History of the Occupational Safety and Health Act of 1970, at 370 (Comm. Print 1971). One of the stated reasons for the proposed amendment was a concern that “[t]he mandatory `walk-around' provisions now in the bill could . . . lead to `collective bargaining' sessions during the course of the inspection and could therefore interfere both with the inspection and the employer's operations.” Id. at 372. This proposed amendment was rejected, and section 8(e) of the OSH Act reflects Congress' considered judgment of the best way to strike the balance between employers' concerns about workplace disruptions and the critical importance of employee representation in the inspection process.

And while section 8(e) underscores the importance of employer and employee representation in OSHA's workplace inspection, the Act places only one criterion on who can be an employer or employee representative and that is that the representative “aid[ ] such inspection.” 29 U.S.C. 657(e). It does not state that the representative must be an employee of the employer. See
Matter of Establishment Inspection of Caterpillar Inc.,
55 F.3d 334, 338 (7th Cir. 1995) (“[T]he plain language of § 8(e) permits private parties to accompany OSHA inspectors[.]”);
NFIB
v.
Dougherty,
2017 WL 1194666, at *12 (“[T]he Act merely provides that the employee's representative must be authorized by the employee, not that the representative must also be an employee of the employer.”). Instead, the Act authorizes the Secretary of Labor (via OSHA) to issue regulations and determine who may be a representative for purposes of the OSHA inspection. 29 U.S.C. 657(e). Congress intended to give the Secretary of Labor the authority to issue regulations related to determining the specifics and resolving the question of who could be a representative for purposes of the walkaround inspection. See Legislative History of the Occupational Safety and Health Act of 1970, at 151 (Comm. Print 1971) (“Although questions may arise as to who shall be considered a duly authorized representative of employees, the bill provides the Secretary of Labor with authority to promulgate regulations for resolving this question.”).

The National Retail Federation (NRF) argued that the “Saxbe Amendment” to the OSH Act demonstrates that an “authorized” representative must be “one selected through the NLRA selection process” (Document ID 1776, p. 8). The Saxbe Amendment sought to “clarif[y] and protect[ ] from abuse” the right of accompaniment by adding “provisions making such right clearly subject to regulations of the Secretary, defining the purpose of such accompaniments as aid of the inspection, and extending mandatory consultation rights to a reasonable

number of employees where there is no `authorized' representative of employees.” Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 92d Cong. 1st Sess., reprinted in Legislative History of the Occupational Safety and Health Act of 1970, at 197-98 (Comm. Print. 1971). NRF points to the reason given for this amendment, which was to avoid scenarios in which the Secretary would have to “resolve union organizing issues which have no relationship to this legislation.” (Document ID 1776, p. 9) (citing Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 92d Cong. 1st Sess., reprinted in Legislative History of the Occupational Safety and Health Act of 1970, at 198 (Comm. Print 1971)).

This reference to union organizing simply reflects Congress's acknowledgement that in some workplaces there may be disputes concerning union representation. However, it cannot be read to deny accompaniment rights to employees in non-union workplaces. See Comments of Congressperson William J. Scherle of Iowa, 92d Cong. 1st Sess., reprinted in Legislative History of the Occupational Safety and Health Act of 1970, at 1224 (Comm. Print 1971) (“The bill provides that union representatives
or any employee representative
be allowed to accompany inspectors on their plant tours.” (emphasis added)). Moreover, the concern raised about union organizing has been addressed both through OSHA policy and regulations. As discussed in Section IV.E, National Labor Relations Act and Other Labor-Related Comments, it is OSHA's longstanding policy to avoid being interjected into labor relations disputes. See also OSHA Field Operations Manual, Chapter 3, Sections IV.G-H (“Under no circumstances are CSHOs to become involved in a worksite dispute involving labor management issues or interpretation of collective bargaining agreements”). OSHA's regulations also provide that the inspection shall “preclude unreasonable disruption of the employer's establishment,” 29 CFR 1903.7(d), and that the CSHO may deny the right of accompaniment to any person whose conduct “interferes with a fair and orderly inspection.” 29 CFR 1903.8(d). Further, where there is a dispute that prevents the CSHO from determining with reasonable certainty who is the authorized employee representative, the CSHO will consult with a reasonable number of employees concerning matters of safety and health in the workplace. 29 CFR 1903.8(b).

This final rule does not infringe on employer's Fourth Amendment rights. The Fourth Amendment protects employers against “unreasonable searches and seizures,” and, absent consent from an employer, OSHA is required to obtain a warrant to conduct a physical inspection of their workplace. See
Marshall
v.
Barlow's Inc.,
436 U.S. 307 (1978). Where the government has sought and obtained a search warrant supported by probable cause and acted within its scope, the resulting search is presumptively reasonable under the Fourth Amendment. See
Sims
v.
Labowitz,
885 F.3d 254, 268 (4th Cir. 2018). “And for the search to be reasonable, it does not have to be conducted flawlessly nor by the least intrusive means.” Id. (citing
Skinner
v.
Ry. Labor Executives' Ass'n,
489 U.S. 602, 629 n.9 (1989)). This rule comports with the Fourth Amendment's prohibition against “unreasonable searches and seizures” because all OSHA inspections, including those in which employees authorize a third-party walkaround representative under this final rule, will be carried out either with the employer's consent or pursuant to a duly issued inspection warrant. Furthermore, while the OSH Act grants the Secretary of Labor broad authority to inspect workplaces “without delay” to find and remedy safety and health violations, 29 U.S.C. 657(a)(1), these inspections must be carried out “during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner.” Id. at 657(a)(2); see also 29 CFR 1903.7(d) (“The conduct of inspections shall be such as to preclude unreasonable disruption of the operations of the employer's establishment.”).

Some commenters argued that allowing a third-party employee representative to accompany OSHA during the walkaround inspection would make OSHA's search unreasonable (see,
e.g.,
Document ID 1976, p. 19). However, as discussed in Section IV.D.2, Fourth Amendment Issues, the mere presence of a third-party employee representative on the employer's premises does not render OSHA's inspection unreasonable for Fourth Amendment purposes. See
Bills
v.
Aseltine,
958 F.2d 697, 703 (6th Cir. 1992) (noting that a third party's entry onto subject's private property may be “justified if he had been present to assist the local officers”); see also
Wilson
v.
Layne,
526 U.S. 603 (1999) (holding that bringing members of the media into a home during the execution of a search warrant violated the Fourth Amendment when the presence of the third parties in the home was
not
in aid of the execution of the warrant). Additionally, contrary to the concerns expressed by some commenters opposed to the rule, this rulemaking does not grant third parties “unfettered access” to an employer's private property (see,
e.g.,
Document ID 0040, p. 4; 0045; 0235, p. 2; 0528; 1757, p. 3; 1762, p. 3; 1974, p. 2; 9316). Rather, as explained in Sections IV.A, IV.C, and IV.D.II, the role of the third-party representative is limited to aiding the inspection; they are only permitted to accompany the CSHO, and they may not stray from the CSHO or conduct their own searches.

This final rule preserves the requirement that the CSHO must first determine “good cause has been shown” why the accompaniment by a third party is “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” 29 CFR 1903.8(c). And, under OSHA's existing regulations, the CSHO is authorized to deny the right of accompaniment to any person whose conduct interferes with a fair and orderly inspection. 29 CFR 1903.8(d). Accordingly, OSHA inspections conducted pursuant to this rule will comport with the Fourth Amendment's reasonableness requirement because the role of the third-party employee representative will be limited to aiding OSHA's inspection. Indeed, the CSHO will ensure the inspection is conducted in a reasonable manner per section 8(a)(2) of the Act and 29 CFR 1903.3(a). See
Matter of Establishment Inspection of Caterpillar Inc.,
55 F.3d at 339 (“[T]he Act and its regulations establish a number of administrative safeguards that adequately protect the rights of employers and limit the possibility that private participation in an inspection will result in harm to the employer.”).

Moreover, because OSHA's inspections are conducted in accordance with the Fourth Amendment, they do not constitute a “physical taking” under the Takings Clause of the Fifth Amendment. Under the Fifth Amendment's Takings Clause, the government must provide just compensation to a property owner when the government physically acquires private property for public use. See
Tahoe-Sierra Pres. Council, Inc.
v.
Tahoe Reg'l Plan. Agency,
535 U.S. 302, 321 (2002). However, the Supreme Court has recognized that “[b]ecause a property owner traditionally [has] had no right to exclude an official engaged in a reasonable search, government searches that are consistent with the Fourth Amendment and state law cannot be said to take any property right from landowners.”
Cedar Point Nursery
v.
Hassid,
141 S. Ct. 2063, 2079 (2021).

Nonetheless, some commenters argued that the rule would affect an unconstitutional
per se
taking under
Cedar Point Nursery
because it would grant third parties access to the employer's property (Document ID 0043, p. 2-3; 1952, p. 8-9; 1976, p. 18-19). As discussed more fully in Section IV.D.3, Fifth Amendment Issues, this rule does not constitute a
per se
taking because the presence of third-party employee representatives on the employer's property under this rule will be limited to accompanying the CSHO during a lawful physical inspection of the workplace and their sole purpose for being on the employer's premises will be to aid the inspection. See 29 CFR 1903.7(d), 1903.8(b); see also
Matter of Establishment Inspection of Caterpillar Inc.,
55 F.3d at 339.

Based on the foregoing, OSHA has determined that it has legal authority for its revisions to OSHA's existing regulation at 29 CFR 1903.8(c).

IV. Summary and Explanation

On August 30, 2023, OSHA proposed amending its existing rule for the Representatives of Employers and Employees at 29 CFR 1903.8(c) to clarify who may serve as a representative authorized by employees during OSHA's walkaround. 88 FR 59825. OSHA provided sixty days for public comment and subsequently extended the comment period for an additional two weeks. 88 FR 71329. By the end of the extended comment period, OSHA had received 11,529 timely comments on the proposed rule that were posted to the docket.

Prior to this rulemaking, the rule stated that a representative authorized by employees “shall be an employee(s) of the employer.” However, that regulation also created an exception for “a third party who is not an employee of the employer” when, “in the judgment of the Compliance Safety and Health Officer, good cause has been shown” why the third party was “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace. . . .” 29 CFR 1903.8(c) (1971). The regulation also listed two non-exhaustive examples of such third parties—a safety engineer and an industrial hygienist.

OSHA proposed two revisions of 29 CFR 1903.8(c). First, the agency proposed to clarify that the representative(s) authorized by employees may be an employee of the employer or a third party. Second, OSHA proposed that a third-party representative authorized by employees may be reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace by virtue of their knowledge, skills, or experience. This proposed revision was intended to clarify that the employees' options for third-party representation during OSHA inspections are not limited to only those individuals with skills and knowledge similar to that of the two examples provided in prior regulatory text: Industrial Hygienist or Safety Engineer.

OSHA noted in the Notice of Proposed Rulemaking (NPRM) that the proposed revisions to section 1903.8(c) would not change the CSHO's authority to determine whether an individual is a representative authorized by employees (29 CFR 1903.8(b)). Also, the proposed revisions would not affect other provisions of 29 CFR part 1903 that limit participation in walkaround inspections, such as the CSHO's authority to prevent an individual from accompanying the CSHO on the walkaround inspection if their conduct interferes with a fair and orderly inspection (29 CFR 1903.8(d)) or the employer's right to limit entry of employee authorized representatives into areas of the workplace that contain trade secrets (29 CFR 1903.9(d)). As always, the conduct of OSHA's inspections must preclude unreasonable disruption of the operations of employer's establishment. See 29 CFR 1903.7(d).

OSHA sought public comment on all aspects of the rule, including why employees may wish to be represented by a third-party representative and examples of third-party representatives who have been or could be reasonably necessary to the conduct of an effective and thorough walkaround inspection. OSHA also sought examples and information about any other unique skills that have been helpful or added safety and health value to OSHA's inspection. Additionally, OSHA solicited input on regulatory options, such as whether the agency should maintain the “good cause” and “reasonably necessary” requirement.

OSHA received comments in favor of the rule and opposed to it, ranging from requests to withdraw the rule entirely to criticism that the rule does not go far enough to ensure that employees are able to select a representative of their choice. Many organizations representing employers contended that the rule represents a significant change to OSHA's procedures and will facilitate union organizing. Among other arguments, these organizations generally argued that the rule: (1) conflicts with the OSH Act and existing OSHA regulations; (2) infringes on employers' Constitutional rights, particularly property rights; (3) imposes substantial costs, particularly for small businesses; and (4) will be difficult for OSHA to administer. Conversely, organizations representing employees praised the rule for encouraging employee representation, ensuring thorough and effective inspections, and promoting workers' safety and health. Some organizations representing employees also argued that OSHA should eliminate the “good cause” and “reasonably necessary” requirement for third parties.

OSHA considered all issues raised, and, as explained in depth below, determined that revising 1903.8(c) more clearly aligns with the language and purpose of section 8(e) of the OSH Act, 29 U.S.C. 657(e). Moreover, OSHA's revisions to 1903.8(c) better ensure employee involvement in an OSHA inspection, which is a critical component to conducting an effective and thorough inspection. As explained further below, OSHA has decided to retain the existing “good cause” and “reasonably necessary” requirement in the final rule. Additionally, because of commenter concerns that the use of the word “participation” in the NPRM suggested the employee representative had a role in conducting OSHA's inspection, OSHA removed that term in favor of “accompaniment” in the final rule.

A. The Need for and Benefits of Third-Party Representation

The text of the OSH Act provides that, “[s]ubject to regulations issued by the Secretary, a representative of the employer and
a representative authorized by his employees
shall be given an opportunity to accompany the Secretary or his authorized representative during” physical workplace inspections. 29 U.S.C. 657(e) (emphasis added). There is nothing in the OSH Act to suggest that employee (or employer) representatives must be employees of the employer. The only criterion the statute imposes is that the representative will “aid[ ] such inspection.” In the NPRM, OSHA explained that, based on its experience, there are a variety of third parties who might serve as representatives authorized by employees who could aid the OSHA walkaround inspection. 88 FR at 59829-30. As an example, OSHA highlighted an inspection where a worker for a company removing asbestos at a worksite reported safety concerns to OSHA and a third party. The third party contacted OSHA and a community organization on behalf of the workers to ensure their safety and health concerns were fully communicated to and understood by the

CSHO. The community organization's attorney and a former employee of the workplace were chosen as the employees' representatives to participate in the walkaround inspection. OSHA found the presence of both individuals to be very beneficial to the inspection because the representatives were able to clearly identify and communicate safety concerns to the CSHO during the walkaround. Many of the exposed workers on this worksite were not fluent in English and having representatives who the workers trusted and could facilitate communication with the CSHO enabled OSHA to conduct numerous worker interviews and better investigate the workplace conditions. 88 FR 59830.

In the NPRM, OSHA sought public comment on any other examples where third parties benefitted OSHA inspection, the reasons why employees may desire a third-party representative, and any data or anecdotal examples of individuals who may serve as third parties, among other questions. In response, many commenters, both for and against the proposed rule, commented on the need for third-party employee representatives and the benefits they bring to OSHA's inspections.

After reviewing the comments, as summarized below, OSHA has concluded that third-party representatives authorized by employees may have a variety of skills, knowledge, or experience that could aid the CSHO's inspection. This includes, but is not limited to, knowledge, skills, or experience with particular hazards or conditions in the workplace or similar workplaces, as well as any relevant language or communication skills a representative may have to facilitate better communication between workers and the CSHO. OSHA has therefore deleted the two enumerated examples in the current regulation—industrial hygienists and safety engineers—to clarify that different types of individuals may be reasonably necessary to OSHA's inspection. These revisions do not preclude an industrial hygienist or safety engineer from serving as an employee representative; instead, the revisions more properly focus the CSHO's determination on factors such as the knowledge, skills, or experience of the third party rather than the third party's professional discipline. 88 FR 59829.

1. Comments Supporting Third-Party Representation

OSHA received numerous comments demonstrating the importance and benefits of third-party representation—many of which included real-life examples of how third-party representatives have assisted OSHA over the years. Commenters supporting the rule emphasized the benefits of third parties' technical and/or subject matter expertise. They also appreciated OSHA's effort to clarify that various types of third parties, and not just those with the above expertise, can aid OSHA's inspections based on a variety of knowledge, skills, or experience (see,
e.g.,
Document ID 1972, p. 3-4). As one commenter noted, third-party representatives need not be “certified expert[s]” to meaningfully contribute to an inspection (Document ID 0022).

In particular, commenters supporting third-party representation pointed out that: (1) third parties can possess helpful technical and/or subject-matter expertise with hazards, industries, and OSHA's investigation process; (2) third parties can provide critical language skills and related cultural competencies; (3) third parties can facilitate employee cooperation by increasing employees' trust in the inspection process; (4) third-party representation greatly benefits inspections involving multi-employer worksites; and (5) third-party representation empowers workers and appropriately balances the rights and needs of all parties during the inspection process.

First, numerous commenters emphasized that third parties can possess helpful technical and/or subject-matter expertise with particular hazards, industries, or the investigation process (see,
e.g.,
Document ID 1753, p. 5-7). The United Steelworkers Union (USW) noted that it has brought in technical experts to serve as designated employee representatives in OSHA inspections involving issues related to combustible dust, combustion safety, electrical safety, and occupational medicine (Document ID 1958, p. 5). The Amalgamated Transit Union also stated that its union officials, including those in the Health and Safety Department, have transit safety and health knowledge that could be relevant to an OSHA investigation, such as technical expertise regarding transit vehicle designs, transit maintenance equipment, and a “big-picture view” of the hazard; it also pointed to union officials' ability to assemble workers for interviews, identify relevant evidence, and bring a level of familiarity and comfort in speaking with government agents that employees might lack (Document ID 1951, p. 1-2).

Similarly, the USW provided examples of where its familiarity with OSHA inspections was beneficial. In one such example involving an explosion and fatalities at a USW-represented workplace, a USW safety representative from the union's headquarters traveled to the site to assist (Document ID 1958, p. 4-5). Because access to the area at issue was initially restricted to OSHA and others, the safety representative assisted OSHA with determining who should be interviewed and what information OSHA should request from the employer; the third-party union representative was also needed to help the local union and OSHA obtain employees' involvement during interviews and the walkaround (Document ID 1958, p. 4-5).

In addition, the USW commented that “[w]orkplaces that do not have a collective bargaining representative may be especially vulnerable to safety hazards, and employees in these workplaces benefit from the expertise and advocacy experience that a community group, safety expert, or labor organization can provide in a walkaround inspection” (Document ID 1958, p. 3). Farmworker Justice agreed, recognizing that third parties such as union representatives and worker advocates have industry-specific or workplace safety expertise that they can use to help workers identify and communicate workplace safety concerns to OSHA (Document ID 1763, p. 3-4).

Several commenters emphasized the benefits of third parties' industry-specific expertise in particular. For example, the Utility Workers Union of America (UWUA) noted that, in recent years, the UWUA national union provided a walkaround representative in numerous incidents that “have proven the difference between a fair investigation and one that unfairly weighs in the employer's balance” (Document ID 1761, p. 1). UWUA described one inspection in Pennsylvania involving the death of an overhead lineman who had been working with a crew operating a bucket truck when that truck unexpectedly rolled downhill and overturned in the road (Document ID 1761, p. 1). UWUA explained that the national union representative was able to inform the CSHO about technological and work practice changes in the industry, including the use of an inclinometer, that were not immediately apparent even to the workers themselves due to inadequate training (Document ID 1761, p. 1). OSHA's inspection benefitted from the national union representative's industry-specific expertise (Document ID 1761, p. 1).

Similarly, the USW also highlighted an OSHA inspection that benefitted

from a third-party representative who had industry-specific expertise (Document ID 1958, p. 3). In that inspection, where a USW mechanic died in a flash fire involving a dust collection system, a USW safety representative from the union's headquarters accompanied the CSHO along with local union representatives who had never been part of an OSHA inspection or a fatality investigation (Document ID 1958, p. 3). The USW safety representative's experience in the industry, experience serving on one of the National Fire Protection Agency's combustible dust committees, and experience with prior OSHA inspections and fatality investigations benefitted the inspection (Document ID 1958, p. 3-4). According to the USW, the CSHO confirmed that the third-party's assistance made the inspection more “through[ ] and complete” (Document ID 1958, p. 3).

In the healthcare industry, one commenter, a former director of the safety and health program for the American Federation of State, County and Municipal Employees (AFSCME), provided examples of where this commenter was able to assist CSHOs during past inspections with hazards that were not well-known at the time (Document ID 1945, 2-3). This commenter stated that they were able to provide guidance to CSHOs regarding workplace violence and bloodborne pathogens and what similar facilities were doing to abate similar problems and hazards (Document ID 1945, p. 2-3).

In addition, the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, Its Territories and Canada, (“IATSE”) asserted that third-party representation can also benefit inspections in their industry, as “[t]erminology, specific job functions, equipment, and procedures might be unfamiliar to an industry outsider” (Document ID 1970, p. 1). As an example, IATSE explained that, if a worker was injured in a remote location during a motion picture production, a third-party walkaround representative could explain the industry practice of equipment rentals, camera placement, crew positions, and other industry-standard procedures (Document ID 1970, p. 1).

Several of these commenters explained that the expertise of third parties is helpful to OSHA because CSHOs cannot be expected to have knowledge or expertise with every industry, craft, task, hazard, occupation, or employer (Document ID 1969, p. 14; see also 1753, p. 5-7). Commenters noted that third parties can assist when hazards are hidden or not immediately apparent to the CSHO (see,
e.g.,
Document ID 1753, p. 7).

Second, many commenters, including the National Employment Law Project (NELP), also identified a need for third-party representatives with language skills when CSHOs interact with workers from a linguistic or other background with which the CSHO is unfamiliar (see,
e.g.,
Document ID 1972, p. 4). Numerous commenters noted the importance of third-party representatives who can interpret for limited-English proficient workers (see,
e.g.,
Document ID 0030; 0037; 0526, p. 1-2; 1958, p. 2). For example, the USW explained that “employees can offer significantly more information when they can comfortably communicate in a language in which they are fluent” (Document ID 1958, p. 2). MassCOSH described the importance of having a “respected, culturally and linguistically competent” employee representative to ensure the CSHO obtains information needed for a complete and thorough inspection (Document ID 1750, p. 3). MassCOSH provided an example where several Central American immigrant workers suffered from lead poisoning at a lead recycling facility in Massachusetts (Document ID 1750, p. 3). The CSHO did not speak Spanish and could not communicate with Spanish-speaking workers, and so was unable to identify areas of lead contamination (Document ID 1750, p. 3). Workers subsequently contacted MassCOSH, which contacted OSHA and provided a Spanish-speaking representative to accompany the CSHO on a second inspection (Document ID 1750, p. 3). The representative was able to facilitate communication between the CSHO and workers, who pointed the CSHO to the areas that were particularly contaminated with lead but were not easily found (Document ID 1750, p. 3).

Similarly, Justice at Work described how a worker organization it collaborates with in Massachusetts, Centro Comunitario de Trabajadores (CCT), works with workers who face significant language barriers because many in the community do not speak English, and some are not fluent in Spanish and need K'iche' interpretation (Document ID 1980, p. 2). Justice at Work noted that a CCT leader was selected by workers to assist OSHA during a fatality investigation several years ago and workers were “immediately comfortable to see a member of their community there; they spoke freely with the CCT leader and pointed out the danger areas in the worksite” (Document ID 1980, p. 2).

United Brotherhood of Carpenters and Joiners of America (UBC) explained that union representatives may be aware of languages spoken by a workforce in a specific geographic area and have the language skills necessary to communicate with these workers (Document ID 1753, p. 6-7). UBC further noted that when serving as a third-party representative, these union representatives can bring these skills to assist CSHOs who may lack such a familiarity with the languages spoken by workers in that specific geographic area, such as Polish in the Chicago-area (Document ID 1753, p. 6-7). Nebraska Appleseed, which partners with hundreds of immigrant community members in advocating for safer working conditions, explained that workers in meat and poultry processing facilities often speak Spanish, Somali, Karen,
1

Vietnamese, and other languages not typically spoken by local OSHA staff (Document ID 1766, p. 1-3). Similarly, United Food and Commercial Workers (UFCW) explained that many union members struggle with language barriers, noting that in Nebraska and South Dakota, the immigrant population makes up over half the working staff (Document ID 1023, p. 3-4). Project WorkSAFE noted that, in Vermont, there is an increasing need to have individuals at a worksite who speak Spanish and English for translation purposes, but, in their experience, none of the CSHOs in Vermont OSHA speak Spanish (Document ID 0037).

1
Karen languages are spoken in parts of Burma and Thailand.

A third-party's language skills can prevent situations “where employers or `ad hoc' interpreters are the go-betweens for the CSHO and the worker” (Document ID 0526, p. 2). Justice at Work Pennsylvania explained that when supervisors translate for workers, flawed interpretations or even full fabrications may result, and a translator can facilitate “an accurate and complete” conversation between CSHOs and workers (Document ID 0526, p. 2). NELP stated that “poor communication between workers onsite and OSHA inspectors is not solely a function of language access. OSHA compliance officers may lack the cultural competence, community knowledge, and existing relationships with workers that are necessary to facilitate trust and frank communication” (Document ID 1972, p. 4). The USW also added that third-party representatives can provide “language justice” by ensuring “cultural competency, trust and knowledge” (Document ID 1958, p. 2). Even when a CSHO has the requisite language skills

or access to an interpreter, third-party representatives can provide needed “language and cultural competency skills” or have a prior relationship with workers, (Document ID 1972, p. 4-5; see also 1969, p. 18), and thereby bridge the gap between workers and CSHOs (see Document ID 1763, p. 4; 1972, p. 4). The AFL-CIO provided such an example when immigrant workers chose a faith leader from their community to be a representative during an OSHA inspection (Document ID 1969, p. 14). This faith leader helped the workers overcome their fear of speaking to the CSHO by drawing upon a prior relationship with the workers and by interpreting for them (Document ID 1969, p. 14).

Third, commenters explained that, in addition to technical expertise, third-party representatives may also benefit inspections by increasing employees' trust in the inspection process and thereby their cooperation (see,
e.g.,
Document ID 1972, p. 5-6). Commenters identified several reasons that employees may be reluctant to speak to an OSHA official, such as unfamiliarity with OSHA and their rights under the OSH Act, fears of retaliation, negative immigration consequences, language or cultural barriers, or their age, among other reasons (see,
e.g.,
Document ID 0526, p. 3; 1031; 1763, p. 2-4). The AFL-CIO explained that many employers discourage workers from engaging with OSHA, noting that workers have shared that their employer threatened them with getting in trouble, personally fined, or losing their job as a result of an OSHA inspection (Document ID 1969, p. 13). The AFL-CIO noted that vulnerable workers, including immigrant workers and refugees, may fear that speaking with OSHA will jeopardize their ability to stay and work in the United States (Document ID 1969, p. 13). Similarly, Justice at Work Pennsylvania shared that, in one client's workplace, employees were too fearful to cooperate with OSHA after their employer called U.S. Immigration and Customs Enforcement on a co-worker (Document ID 0526, p. 3). Several commenters noted that employees “may feel unsafe speaking to OSHA inspectors without a trusted representative. . . .” such as worker centers, unions, community organizations, and attorneys (see,
e.g.,
Document ID 0031; 0034; 1031).

Commenters identified several ways that such third-party representation can promote employee trust and cooperation. For instance, commenters explained that a trusted employee representative can help workers understand OSHA's inspection process (see,
e.g.,
Document ID 0042). Commenters also stated that third-party representatives can guide and support workers through the inspection process, providing assurances that it is safe and worthwhile to provide information and encouraging employees to communicate openly with OSHA (see,
e.g.,
Document ID 0526, p. 3; 1969, p. 13). The AFL-CIO noted several examples of situations where workers were willing to speak with OSHA when a trusted representative was present, including the example described above where workers chose a faith leader who they knew personally and trusted (Document ID 1969, p. 14).

Additionally, commenters noted that third-party representatives can also serve as a buffer between the employer and employees who fear retaliation (see,
e.g.,
Document ID 0014; 0022; 0089; 0120; 0526, p. 3; 1023, p. 5; 10725) and can communicate employees' concerns for them (see,
e.g.,
Document ID 1728, p. 3). As the National Black Worker Center explained, “We understand the layered experience of Black workers on the job, including the fear of reporting health and safety issues due to employer retaliation. We are uniquely suited to support workers who may have reservations about calling out issues on the job” (Document ID 1767, p. 2-3). The National Black Worker Center explained that allowing worker centers to provide a third-party employee representative will ensure that “the specific concerns and experiences of workers, including those who have been historically underserved and underrepresented, are given due consideration during inspections” (Document ID 1767, p. 3).

Some commenters also mentioned that a third-party representative can be especially helpful during fatality investigations, which are “particularly sensitive” (Document ID 1969, p. 17) and “stressful” for employees (1958, p. 3-5). In these situations, third-party representatives can put employees at ease and enable them to feel more comfortable interacting with CSHOs (See,
e.g.,
1958, p. 3-5; 1969, p. 17).

Several commenters also referenced an OSHA investigation in Palmyra, Pennsylvania where third-party representatives from the National Guestworkers Alliance (NGA), a workers' advocacy group, had developed a relationship with the foreign students who worked at the inspected facility and assisted them by filing an OSHA complaint and accompanying OSHA during the inspection (see,
e.g.,
Document ID 1945, p. 4-5; 1958, p. 3; 1978, p. 4-6). Commenters explained that OSHA benefitted from NGA's representation of these workers in identifying and understanding workplace safety issues (see,
e.g.,
Document ID 1945, p. 4-5).

Fourth, several commenters pointed out the benefits of third-party representation on multi-employer worksites (see,
e.g.,
Document ID 1747, p. 2; 1969, p. 16; 1970, p. 2). For example, the AFL-CIO pointed to an inspection involving a multi-employer worksite with union and non-union workers; the non-union workers designated a union agent who represented other workers on site as their walkaround representative (Document ID 1969, p. 16). The union agent assisted OSHA by providing information on the workplace respiratory procedures, which revealed violations of the respiratory protection standard and recordkeeping requirements (Document ID 1969, p. 16). In addition, IATSE stated that third-party representation can be helpful for inspections involving multi-employer worksites in the entertainment industry; IATSE explained that touring workers may be unfamiliar with worksite-based hazards and a location-based representative may better aid the CSHO during an inspection (Document ID 1970, p. 2).

Fifth, and last, commenters also expressed support for allowing third-party employee representatives on walkaround inspections because there is a need to balance employee and employer rights under the OSH Act. As the UWUA explained, “[a]lthough the value of having a worker's chosen representatives involved in the investigation process cannot be mathematically quantified, . . . [a] worker representative brings the possibility of worker trust, subject matter expertise, language justice, empowerment, and protection to a situation that can otherwise simply devolve into the meting out of blame by an employer seeking only to protect itself” (Document 1761, p. 2). As another commenter similarly noted, third party representation can empower workers and thereby minimize the employer's ability to control what information is shared by employees, which enables CSHOs to gather more accurate information (Document ID 0526, p. 2). Other commenters also pointed to employers' “unrestricted ability” to select their workaround representative and argued that OSHA should go beyond the current proposal and provide employees that same right without qualification and employer interference (see,
e.g.,
Document ID 1958, p. 5-6). A commenter asserted that when workers are allowed to

designate their own representatives, workers have increased trust in OSHA, and inspections are more efficient, complete, and accurate (Document ID 1958, p. 1-2).

2. Comments Opposed to Third-Party Representation

Many commenters disputed the need for and benefits of third parties and raised numerous arguments to support their positions. These arguments included: (1) that OSHA has not presented evidence demonstrating a need for third parties; (2) third parties cannot aid OSHA's inspections when they are unfamiliar with the particular worksite being inspected; (3) industry-specific concerns should preclude third-party representation; (4) third parties may discourage employer cooperation; (5) third-party representatives will disenfranchise employees; (6) the use of third parties will lower the qualifications to be a CSHO; (7) third parties may have ulterior motives and could engage in conduct unrelated to the inspection; (8) the potential disclosure of confidential business information and trade secrets outweighs the need for third-party representation; and (9) alternatively, if third parties are allowed to serve as employee representatives, they should be limited to individuals with technical expertise or language skills.

First, commenters argued that OSHA has failed to demonstrate a need for third-party representation during the walkaround. For example, some commenters asserted that OSHA did not provide evidence that the rule will facilitate more efficient inspections, aid CSHOs during the walkaround inspection, or otherwise promote the safety and health of workers (see,
e.g.,
1776, p. 10; 1939, p. 4; 1953, p. 4; 1976, p. 4 fn. 9). Commenters questioned why CSHOs were not capable of handling inspections on their own and needed third parties to assist them or were passing off their inspection responsibilities to others (see,
e.g.,
Document ID 0046; 1938, p. 1; 1974, p. 3-4; 3347). The Pacific Legal Foundation also asked why OSHA needed third parties on an employer's premises when third parties could accomplish their activities, such as communicating with employees, offsite (Document ID 1768, p. 5).

Relatedly, other commenters argued that OSHA does not need third-party employee representatives during its inspections because OSHA's current inspection procedures are sufficient (see,
e.g.,
Document ID 1960, p. 1). For example, one commenter stated that employees are already empowered to participate in OSHA's inspections since they can file anonymous complaints and speak with CSHOs in private (Document ID 1955, p. 3). Similarly, commenters asserted that the FOM already accounts for situations where CSHOs need third-party translation and that the current regulation allows for third parties with technical expertise to accompany CSHOs in “limited situations” (Document ID 1960, p. 3-4; see also 1952, p. 2). Ultimately, commenters asserted that “OSHA is improperly seeking to address a nonexistent issue” (Document ID 1955, p. 3; see also 1976, p. 4) and that “[t]here is no pressing need for this change” (Document ID 9002).

Second, commenters expressed skepticism that third parties who are unfamiliar with a specific worksite could have anything meaningful to contribute to an OSHA inspection (see,
e.g.,
Document ID 0033). For example, the American Chemistry Council asserted that each chemical manufacturing facility and its hazards are unique and that merely having a general understanding of hazards is insufficient to truly aid an OSHA inspection (Document ID 1960, p. 2). Commenters argued that employees of the employer, and not third parties, are better suited to be representatives because employees understand the specific tasks at issue by virtue of their employment and may have received job-specific training (see,
e.g.,
Document ID 1960, p. 2). NFIB also took issue with the type of knowledge, skills, or experience that OSHA indicated could aid the inspection, asserting that “[w]hat constitutes relevant knowledge or skills is left vague” and that it is unclear whether the phrase “with hazards or conditions in the workplace or similar workplaces” modifies “experience” or also “relevant knowledge” and “skills” (Document ID 0168, p. 5).

Third, commenters also raised a number of industry-specific safety and security concerns. For instance, in the manufacturing industry, the Illinois Manufacturer's Association raised safety concerns, asserting that third-party representatives were unnecessary because they could pose safety risks to themselves or others, or to the employer's products due to their lack of expertise and/or training (see,
e.g.,
Document ID 1762, p. 2-3; 1770, p. 4; 1774, p. 4; 1937, p. 2; 1974, p. 2-3; 1946, p. 7; 1942, p. 5). In addition, commenters raised safety and security-related concerns for their industries. The National Council of Farmer Cooperatives explained that some agriculture employers are required to restrict access to their facilities to only authorized personnel who are trained in practices of ensuring food safety; this commenter expressed concerns that the proposed rule could result in noncompliance with that requirement (Document ID 1942, p. 5). The Food Industry Association asserted that the presence of third parties could create serious food safety hazards in food production and warehousing, noting the need for following strict sanitation protocols (Document ID 1940, p. 3). The American Chemistry Council similarly raised concerns about third parties in the chemical industry who have not undergone background checks or who lack credentials through the Chemical Facility Anti-Terrorism Standards program or the Transportation Worker Identification Credential program (Document ID 1960, p. 5).

Commenters also raised concerns in the healthcare context (see,
e.g.,
Document ID 0234, p. 2). Hackensack Meridien Health shared two examples: (1) at one of its hospitals, a union brought in a third party to provide feedback on a workplace safety issue and shared information with OSHA that was not scientifically sound (though OSHA did not ultimately use the information); and (2) employees brought in an expert for a walkaround who did not recognize a patient safety concern, which the employer's internal team later identified and remediated (Document ID 0234, p. 2). According to Hackensack Meridian Health, both instances could have resulted in harm to patients or team members because the third party did not possess the requisite expertise (Document ID 0234, p. 2).

Fourth, commenters expressed concerns that third parties could discourage cooperation from employers. Commenters argued that third parties could “discourage[ ] employer cooperation in the inspection process” (see,
e.g.,
Document ID 1938, p. 1). One commenter asserted that most employers currently cooperate with inspections by not requiring warrants; however, it predicted that more employers will request warrants if employee representatives can be third parties, including due to the fear of union organizing (Document ID 1938, p. 9; see also 1772, p. 1).

Fifth, some commenters also asserted that third-party representation would “disenfranchise” employees by replacing employee representatives with third-party representatives (see,
e.g.,
Document ID 1120; 1123; 1163). A commenter asked, “Would you like for someone off the street to come in and tell you to `pack up your stuff and leave,

I'm replacing you?' I wouldn't think so” (Document ID 1163).

Sixth, commenters also asserted that third-party representation could result in lowering the qualifications to be a CSHO. For example, some commenters, such as Larson Environmental, expressed concern that the proposal would result in “soften[ing] or water[ing] down the need for technical expertise and training of OSHA employees” (Document ID 1109; see also 0033).

Seventh, commenters argued that third parties may not benefit OSHA's inspections because third parties may have ulterior motives and be engaged in conduct unrelated to the inspection (see,
e.g.,
Document ID 1775, p. 6; 1937, p. 5). For example, commenters suggested that third parties could engage in union organizing (Document ID 0168, p. 5-6; see also 1964, p. 2). Commenters also expressed concerns that attorneys or experts serving as third-party representatives could use the walkaround to conduct pre-litigation discovery in personal injury or wrongful death actions (Document ID 1938, p. 5; 1976, p. 11-12) or that attorneys could use the walkaround to solicit clients (Document ID 1953, p. 5). Others also worried about disgruntled former employees engaging in workplace violence or causing conflict (see,
e.g.,
Document ID 1762, p. 3-4; 1781, p. 2), and raised concerns about the conduct of other third parties such as competitors, relatives or friends of injured or deceased employees, job applicants who did not a receive a job, or individuals with ideological differences (see,
e.g.,
Document ID 1272; 1533; 1701; 1762, p. 3-4; 1937, p. 5; 1976, p. 11-12). For example, the American Family Association asserted that “[a]llowing facility access to a third-party representative who might hold views antithetical to AFA's mission could easily disrupt the current requirement that OSHA conduct a `fair and orderly inspection'” (Document ID 1754, p. 3).

Eighth, commenters also argued that the need to protect trade secrets and other confidential information outweighs the need for third parties. For example, commenters voiced concerns that a third-party representative, such as competitor or someone who is hostile to the employer being inspected, could obtain and disclose trade secrets or other confidential business information (see,
e.g.,
Document ID 0040, p. 4; 0175, p. 2; 11515) or relatedly, pose antitrust issues (Document ID 1937, p. 3; 1960, p. 6). With regard to the manufacturing industry in particular, commenters explained that “the manufacturing process itself constitutes proprietary trade secrets that would be impossible to protect from disclosure” (Document ID 0175, p. 2) and that “[e]ach manufacturing process may have unique or specialized features that give them a competitive edge” (Document ID 1937, p. 3).

Commenters also raised concerns about the unauthorized disclosure of confidential business information generally; as examples of such information, they pointed to an employer's operations, customer and supplier data, intellectual property, or employees' sensitive information (see,
e.g.,
Document ID 1774, p. 3, 6; 11487). The International Foodservice Distributors Association (IFDA) provided additional examples of confidential information, including: “the layout of the facility, staffing, large pieces of equipment, materials used, and other information that cannot be easily kept away from a third-party representative” (Document ID 1966, p. 3). Commenters argued that the unauthorized disclosure of confidential information could occur due to the NPRM's “lack of a set definition of `trade secrets'” (Document ID 1774, p. 3) and the fact that OSHA's existing regulation at 1903.9 is limited to trade secrets (Document ID 1966, p. 3).

In addition, the Utility Line Clearance Safety Partnership argued that while OSHA is not permitted to disclose trade secrets or other confidential business information, which it notes is protected from disclosure in a Freedom of Information Act request, the rule fails to prevent third parties from disclosing the same information (Document ID 1726, p. 7). NRF recommended that the rule “provide authority for injured employers to bring claims against the Secretary for monetary remedies and other sanctions” if a third-party representative obtains trade secrets and proprietary information (Document ID 1776, p. 3-4). The Workplace Policy Institute likewise asserted that disclosure of confidential information and trade secrets to competitors or the public would result in litigation requiring OSHA staff testimony (Document ID 1762, p. 3).

Ninth, and lastly, several commenters argued that, if the final rule ultimately permitted third-party employee representatives, the rule should be narrow and limit third-party representatives to certain professions. Some commenters asserted that third parties should be limited to the enumerated examples in the current regulation—industrial hygienists and safety engineers—or to individuals with technical expertise or certain professional certifications (see,
e.g.,
Document ID 1384; 1937, p. 2). For example, the American Family Association commented that the rule should require third-party representatives to “possess demonstrable safety and health expertise, relevant to the workplace being inspected” (Document ID 1754, p. 2).

Several commenters, including U.S. Representative Virginia Foxx and the U.S. Apple Association, contended that the previous regulation only permitted third-party employee representatives with technical or safety expertise (see,
e.g.,
Document ID 1756, p. 2; 1936, p. 1; 1939, p. 1-2; see also 1966, p. 4-5). The North American Insulation Manufacturers Association asserted that under the previous regulation, a third-party employee representative “must normally have specialized safety knowledge” (Document ID 1937, p. 2). According to a coalition of state-based think tanks and public interest litigation groups (the State Policy Network), the inclusion of industrial hygienists and safety engineers as examples was intended to “establish minimum floor threshold qualifications” for third-party representatives; the State Policy Network further argued that, according to “historical OSHA policy manuals,” such individuals “must have minimum levels of education, experience, and certification granted by professional organizations and/or State-level administrative agencies” (Document ID 1965, p. 13). The Mom and Pop Alliance of SC also expressed concern that the proposal would “eliminate the requisite technical credentials necessary for non-employees to participate” in the inspection (Document ID 0528).

Other commenters supported limiting the universe of potential third parties but were open to both technical experts and interpreters serving as third parties (see,
e.g.,
Document ID 10797; 1782, p. 3). For example, the Flexible Packaging Association explained that it did not necessarily object to a third-party representative participating in a walkaround inspection, particularly if that representative was a translator, industrial hygienist, or safety engineer, but expressed concern that the proposal would permit a “seemingly unlimited variety of people” who can serve as third-party representatives, and urged OSHA to limit third-party representatives to technical experts and translators (Document ID 1782, p. 3). A private citizen commented that industrial hygienists and safety engineers should not be deleted, but “language expert” should be added as an additional example to “help the

focus of inspections to remain on health and safety and clear communication of such” (Document ID 10797).

3. Conclusion on the Need for and Benefits of Third-Party Representatives

After reviewing the comments, OSHA has decided to adopt its proposed revisions because allowing third-party representatives as discussed in this rule better comports with the OSH Act. Nothing in section 8(e) expressly requires “a representative authorized by . . . employees” to be an employee of the employer. 29 U.S.C. 657(e). Rather, the statute merely states that the representative must “aid[ ] the inspection.” Id. The revisions adopted by this final rule better conform with section 8(e)'s requirement by eliminating the text in the regulation requiring employee representatives to be an employee of the employer. In addition, the revisions ensure employees are able to select trusted and knowledgeable representatives of their choice, leading to more comprehensive and effective OSHA inspections. Through the agency's own enforcement experience and based on numerous comments, particularly those with real-life examples, OSHA has determined that there are a wide variety of third parties who can aid OSHA's inspection. OSHA has therefore concluded that it is appropriate to delete the examples of industrial hygienists and safety engineers in the prior rule to make it clear that a third party is not reasonably necessary solely by virtue of their professional discipline. Rather, the focus is on how the individual can aid the inspection,
e.g.,
based on the individual's knowledge, skills, or experience. The final rule, however, does not change the requirement that, once the CSHO is notified that employees have authorized a third party to represent them during a walkaround inspection, the third party may accompany the CSHO only if the CSHO determines that good cause has been shown that the third party is reasonably necessary to an effective and thorough inspection.

In deciding to adopt its proposed revisions, OSHA agreed with commenters who explained how third-party employee representatives can greatly aid OSHA inspections. In a variety of ways, third parties can assist OSHA in obtaining information and thereby ensuring comprehensive inspections. For example, the comments submitted in support of the proposed rule demonstrated that third parties can provide valuable technical expertise and support to CSHOs during walkaround inspections. This includes inspections involving workplace hazards that do not fall under a specific standard and worksites that contain hazards that are not readily apparent to the CSHO.

Third parties also may be more likely to understand industry standards than an employee of the employer, and many comments demonstrated the benefits of having a third-party representative with industry-specific expertise. Several commenters provided compelling examples of this, such as the UWUA's national representative providing guidance to a CSHO about changes in the utility industry, including the use of an inclinometer (Document ID 1761, p. 1), and the USW safety representative's contribution to a fatality inspection involving a dust collection system due to that representative's experience in the industry and service on a combustible dust committee of the National Fire Protection Association (Document ID 1958, p. 3-4). A former director of AFSCME also provided a first-hand example of how he, as a third-party employee representative, was able to draw from his knowledge and experience in the healthcare industry not only to provide guidance to the CSHO on less well-known hazards but also to share how other workplaces in the industry had addressed similar hazards (Document ID 1945, p. 2-3).

While several commenters opposed to the rule argued that third parties will lack industry-specific expertise and pose safety risks to themselves or others, or to the employer's products, comments supporting the rule demonstrate that many third parties can and do in fact possess industry-specific knowledge expertise and that such expertise has assisted OSHA's inspections. However, even if a third party lacked such industry-specific knowledge or expertise, it does not necessarily mean they will pose a risk or cause harm, as Hackensack Meridien Health contended.

Hackensack Meridien Health asserted that employees or patients could have been harmed on two separate occasions—once, when a third party provided safety feedback to OSHA that Hackensack Meridien Health did not feel was scientifically sound and, on another occasion, when an expert did not recognize a patient safety concern. However, in the first example, which does not indicate whether the third party was a walkaround representative, Hackensack Meridien Health acknowledged that OSHA did not rely on the advice. In addition, in the second example, a walkaround representative is not expected or required to identify patient concerns or replace the CSHO, as the representative's role is to aid OSHA's inspection into workplace hazards that could harm employees. Furthermore, these examples do not show that a third party caused any harm or that OSHA's inspection procedures related to employee representation were inadequate.

Concerns about risks third parties pose in certain industries are speculative and ignore the roles of both the third party and the CSHO during the inspection. Third-party representatives have a specific purpose—to aid OSHA's inspection. Therefore, they must stay near the CSHO and are not permitted to wander away from the inspection or into unauthorized areas. While some commenters in the chemical industry discussed the need for third parties to follow the facility's sanitation protocols, and some commenters in the chemical industry discussed the need for third parties to have certain credentials, OSHA has ample experience conducting investigations in worksites with such requirements. During the opening conference, the CSHO inquires about any such work rules or policies, such as policies related to PPE, areas requiring special precautions, whether any safety briefings are necessary, and any other policies relevant to the inspection. CSHOs have long adhered to such policies in conducting inspections in facilities with unique requirements, and any third party would generally need to as well, as long as those rules and policies apply equally to all visitors and are not implemented or enforced in a way that interferes with an employee representative's right to accompany the CSHO. OSHA will consider facility-specific concerns on a case-by-case basis, but anticipates that the agency's existing inspection procedures adequately address concerns about potential harm from third parties in any given industry.

In addition to certain types of expertise third parties may have, third parties can also offer interpretation skills for employees with limited English proficiency and provide greater language access by using their cultural competence and prior relationships with workers. With regard to interpretation, third parties can help ensure employees are able to have accurate and complete conversations with CSHOs and that employees do not have to rely on supervisors to interpret or on ad hoc interpreters. This can prevent situations where supervisors or ad hoc interpreters provide flawed or fabricated versions of employees' statements. While commenters have argued that OSHA could instead use bilingual CSHOs or hire outside interpreters, these comments ignore an

important component of third parties' interpretation assistance—their cultural competencies. Employees may not be as comfortable when the interpreter is a law enforcement official, such as a CSHO, or when the interpreter is unknown to them. In contrast, as commenters supporting the rule explained, if an interpreter is from a workers advocacy group or union designated by the employees, employees may trust the interpreter more and, as a result, be more willing to provide information.

Likewise, third parties can increase worker involvement in the inspection by facilitating communication between workers and OSHA. Multiple commenters submitted examples of situations where third-party representatives were trusted by workers and successfully encouraged them to speak more openly with CSHOs. Several commenters argued that employees may fear retaliation if they speak to an OSHA official, and both comments in the record and OSHA's own enforcement experience demonstrate that workers are more likely to speak openly and participate in an OSHA inspection if they have a representative who they trust. Several commenters noted that workers are the “eyes and ears of a workplace, and are in the best position to provide OSHA with the inspection information it needs regarding the presence of hazards, the frequency and duration of worker exposure to them, and the employer's awareness of both hazards and exposures” (Document ID 1934, p. 2; see also 1031; 1769, p. 3). Without employee cooperation and participation, OSHA may not be able to gather all the relevant information during a workplace inspection. Ensuring that workers have a trusted representative so that they are able to cooperate in an OSHA inspection is critical.

In addition, third parties may have cultural competency skills that can facilitate communication not only with employees who need interpreters but also for a number of other employees. Employees may not trust or understand government processes, and third parties, particularly third parties known to the employees, allow the employees to be more at ease or forthcoming during the OSHA inspection. The presence of third parties can also be beneficial in workplaces where employees fear retaliation or intimidation by their employer and are afraid to speak up. Employees may either feel more empowered to participate or may feel more comfortable relying on the third party to represent their interests without revealing a particular employee's identity.

Third parties may also aid inspections that are complex, include multiple employers, or involve fatalities or serious injuries. While third-party representatives do not need to be safety engineers or industrial hygienists to aid an inspection, representatives can often possess important technical or safety expertise necessary for a thorough inspection even if they are not specifically employed as safety and health professionals. In support of this, commenters asserted that union officials and worker advocates often have industry-specific or workplace safety expertise that is helpful to a CSHO's inspection and, most importantly, helps to facilitate a CSHO's communication with workers about workplace safety.

OSHA has revised the final rule to make explicit that a representative may be reasonably necessary if they facilitate communication between workers and the CSHO. As explained above, there are a number of reasons, other than language skills, why a third party may be able to facilitate communication between workers and the CSHO, including because of their trusted relationship with workers, their cultural competence, or because they can put employees at ease and enable them to speak more candidly with the CSHO. Ensuring that employees have a voice during the inspection and have the ability to speak openly and candidly with the CSHO is critical to ensuring that OSHA obtains the necessary information about worksite conditions and hazards to conduct a thorough inspection. Accordingly, OSHA has revised paragraph (c) to add communication skills to the exemplar skills that could be reasonably necessary to an effective and thorough inspection. Several commenters incorrectly asserted that the previous regulation only permitted third-party representatives with technical or safety expertise (see,
e.g.,
Document ID 1756, p. 2; 1936, p. 1; 1939, p. 1-2; see also 1966, p. 4-5), and the State Policy Network referenced an OSHA guidance document in support of its arguments that representatives “must have minimum levels of education, experience, and certification granted by professional organizations and/or State-level administrative agencies” (Document ID 1965, p. 13).

These comments are misguided; OSHA did not previously limit 1903.8(c) to technical or safety experts, nor do those commenters point to any evidence to support their claims. The only OSHA document referenced by the State Policy Network is an OSHA booklet titled “The Occupational Health Professional's Services and Qualifications: Questions and Answers” (Occupational Health Q & A),
available at https://www.osha.gov/sites/default/files/publications/osha3160.pdf
. This guidance document relates to how employers select health care professionals to “assist the employer in achieving a safe and healthful work environment” (Occupational Health Q & A, p. 7). Although the guidance document references occupational health care professionals' education and training, it has nothing to do with who employees may select as their walkaround representative under 1903.8(c).

Industrial hygienists and safety engineers were included in the prior regulation as examples of individuals who
may
be reasonably necessary to an inspection but were not intended to limit employees' ability to authorize the participation of third-party representatives with other skills or expertise. And the examples provided by unions and worker advocates, discussed above, show that OSHA applied paragraph (c) to allow third-party employee representatives to accompany the CSHO on the walkaround where they aid the inspection even though they were not industrial hygienists or safety engineers. The record is replete with examples of how third parties with a variety of knowledge, skills, or experience beyond technical expertise made them reasonably necessary to the conduct of an effective and thorough physical inspection. OSHA emphasizes that the examples in paragraph (c) are illustrative and not exhaustive; while the phrase “with hazards or conditions in the workplace or similar workplaces” modifies “knowledge, skills, and experience,” there may be other types of knowledge or skills that could be reasonably necessary to the conduct of an effective and thorough inspection.

OSHA also rejects comments asserting that permitting third-party employee representatives to accompany the CSHO indicates that OSHA is not competent to conduct inspections. In explaining why an employee representative must be given the opportunity to accompany the CSHO on an inspection under section 8(e) of the OSH Act, Senator Williams explained that “no one knows better than the working [person] what the conditions are, where the failures are, where the hazards are, and particularly where there are safety hazards.” Subcomm. on Labor of the Senate Comm. on Labor and Public Welfare, 92d Cong. 1st Sess., reprinted in Legislative History of the Occupational

Safety and Health Act of 1970, at 430 (Comm. Print. 1971). While CSHOs have significant expertise, training, and experience in identifying safety and health hazards, it is not reasonable to expect every CSHO to have comprehensive knowledge of every aspect of site-specific equipment, materials, work practices, and safety requirements without assistance from employees. By permitting employees to designate representatives of their choice, OSHA will be better able to obtain information from employees that is necessary to conduct a comprehensive inspection. More comprehensive OSHA inspections will be more protective of worker safety and health.

Likewise, contrary to some commenters' arguments, this rule will not result in OSHA lowering its qualifications for CSHOs or decreasing the amount or quality of training provided to CSHOs. This rule will not diminish the CSHO's role in an OSHA inspection. CSHOs will continue to be in charge of conducting inspections and have the authority to use various reasonable investigative methods and techniques, such as taking photographs, obtaining environmental samples, and questioning individuals while carrying out their inspection. See 29 CFR 1903.3(a); 1903.7(b); 1903.8(a). Rather than weakening the CSHO's role, this rule will enable CSHOs to obtain more comprehensive information during an inspection.

Commenters additionally argued that OSHA's current procedures (such as anonymous complaints and CSHO's private interviews with workers) are sufficient and that third parties can conduct all activities offsite; however, many other comments demonstrated otherwise and established that third-party representatives are critically important during the walkaround portion of the inspection. OSHA also finds that third-party representatives, including those from unions or worker advocacy groups, are needed to accompany CSHOs during inspections because representatives explaining OSHA processes or protections against retaliation before or after the inspection would not be sufficient to adequately assure workers. The physical inspection is a key part of OSHA's investigation; it is often difficult to obtain information from workers after the inspection because workplace conditions change, or workers leave employment or recall less about the circumstances of an incident that was the subject of the inspection. Having third-party representatives accompany a CSHO during the inspection can reassure workers during this vital step and allow the CSHO to gather information more effectively and efficiently. Additionally, even if workers are reassured about OSHA processes outside of the physical inspection, workers could still be intimidated or confused when faced with a CSHO without the presence of an authorized third-party representative.

In addition, OSHA disagrees with comments that asserted that employees, and not third parties, are always better suited to serve as employee representatives due to employees' familiarity with the worksite and job tasks. These comments ignore the variety of knowledge, skills, or experience third parties offer, as well as the particularities of different inspections, and the fact that employees may sometimes prefer to have nonemployee representatives accompany the CSHOs. They also disregard the many reasons employees may be reluctant or scared to participate in an inspection, much less as the employee representative. While employees who are willing to be a walkaround representative certainly aid OSHA's inspections and are entitled to be the representative if authorized by employees, OSHA disagrees with the suggestion that only employees, and never third parties, could contribute to an OSHA inspection.

OSHA does, however, recognize that there may be situations where a third-party representative will not aid OSHA's inspection during the walkaround. By maintaining the requirement that good cause be shown that the third-party representative is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, OSHA will allow third-party representatives to accompany the CSHO only when they will aid the inspection. Concerns about potential misconduct, injury, or malfeasance from third-party representatives, and how OSHA would respond, are discussed in more detail herein, including in Sections IV.E, IV.G, IV.H.

In addition, OSHA disagrees with commenters that argued that the protection of trade secrets or other confidential business information outweighs the need for third parties. These concerns can be addressed while still allowing third parties to serve as walkaround representatives. OSHA's existing regulations expressly afford employers the right to identify areas in the workplace that contain or might reveal a trade secret, and request that, in any area containing trade secrets, the authorized employee representative shall be an employee in that area or an employee authorized by the employer to enter that area. See 29 CFR 1903.9(c), (d). Although one commenter criticized the NPRM for not defining “trade secrets,” this term is defined in section 15 of the OSH Act by reference to 18 U.S.C. 1905, as information concerning or related to “processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association.” See also OSHA Field Operations Manual, Chapter 3, Section VII.E.

If an employer identifies something as a trade secret, OSHA will treat it as a trade secret if there is “no clear reason to question such identification.” See 29 CFR 1903.9(c); OSHA Field Operations Manual, Chapter 3, Section VII.E. Accordingly, OSHA finds that existing requirements and policies are sufficient to protect employers' trade secrets and propriety information, but will address any unique circumstances on an inspection-by-inspection basis.

While two commenters asserted that a third-party walkaround representative from a competitor could raise antitrust or anticompetition concerns, this assertion appears highly improbable. First, any third-party must be authorized by the employer's employees, and it seems unlikely that employees would authorize a competitor who would then engage in anticompetitive conduct to represent them. Further, the CSHO must find good cause has been shown that a third party is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace. This requirement ensures that the representative will aid the inspection. Additionally, if a third party engages in conduct that is unrelated to the inspection, the CSHO has the authority to terminate the third party's accompaniment.

OSHA also disagrees with commenters that argued third parties are not needed because third parties can discourage employer cooperation or disenfranchise employees. Concerns about diminished employer cooperation and an increase in warrants are discussed in more detail in Sections IV.G. Further, commenters have also failed to show how workers will be disenfranchised by allowing third-party representatives because workers still have the right to designate employee representatives. Because third-party representatives must be authorized by workers, they cannot “disenfranchise” workers. Rather, they can facilitate worker participation during inspections.

Finally, comments arguing that the purpose of this rule is to facilitate union organizing are incorrect. Employee representation during the inspection is critically important to ensuring OSHA obtains the necessary information about worksite conditions and hazards. In addition, the rule does not limit third-party representatives to union representatives but clarifies that varying types of third parties may serve as employee representatives based on their knowledge, skills, or experience. Third-party representatives' sole purpose onsite is to aid OSHA's inspection, 29 U.S.C. 657(e), and CSHOs have authority to deny the right of accompaniment to third parties who do not do that or who interfere with a fair and orderly inspection. 29 CFR 1903.8(a)-(d).

Ultimately, as evidenced herein, OSHA disagrees with commenters that assert that there is no need or not a pressing need for this rulemaking. The district court's decision in
NFIB
v.
Dougherty
necessitated this rulemaking to explain OSHA's “persuasive and valid construction of the Act.” 2017 WL 1194666, *12. Moreover, neither the plain text of the OSH Act nor its legislative history support arguments that OSHA is required to show that there is a “pressing need” to clarify who is eligible to be a third-party representative. For a fuller discussion of OSHA's rulemaking authority, see Section III, Legal Authority.

For the reasons discussed above, OSHA has determined that permitting employees to select trusted and knowledgeable representatives of their choice, including third parties, facilitates the CSHO's information gathering during OSHA inspection, which will improve the effectiveness of OSHA inspections and benefit employees' health and safety. Employee representatives can ensure that CSHOs do not receive only the employer's account of the conditions in the workplace. As National COSH explained, employees are a key source of information as to specific incidents, and they also may possess information related to an employer's history of past injuries or illnesses and an employer's knowledge of or awareness of hazards (Document ID 1769, p. 2). By obtaining comprehensive information, OSHA can not only better and more timely identify dangerous hazards, including hazards that may be hidden or hard to detect, but ensure the hazards are abated quickly and do not injure or kill employees. Accordingly, OSHA concludes that its rule is necessary. See 29 U.S.C. 657(g)(2).

B. The “Good Cause” and “Reasonably Necessary” Requirement

In the NPRM, OSHA proposed to revise 29 CFR 1903.8(c) to clarify that the representative(s) authorized by employees may be a third party and that third parties are not limited to the two examples listed in the existing rule. However, as the NPRM explained, the proposed revisions would not alter the regulation's existing requirement for the CSHO to determine that “good cause” had been shown why the third party was “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” The NPRM requested public input regarding the “good cause” and “reasonably necessary” requirement for third-party employee representatives. The NPRM also set forth the following three questions, suggesting alternatives to OSHA's proposed revisions.

1. Should OSHA defer to the employees' selection of a representative to aid the inspection when the representative is a third party (
i.e.,
remove the requirement for third-party representatives to be reasonably necessary to the inspection)?

2. Should OSHA retain the language as proposed, but add a presumption that a third-party representative authorized by employees is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace?

3. Should OSHA expand the criteria for an employees' representative that is a third party to participate in the inspection to include circumstances when the CSHO determines that such participation would aid employees in effectively exercising their rights under the OSH Act? Why or why not? If so, should OSHA defer to employees' selection of a representative who would aid them in effectively exercising their rights?

OSHA received many comments both for and against the “good cause” and “reasonably necessary” requirement, and many commenters specifically addressed the possible alternatives. After reviewing the comments, summarized below, OSHA has decided to retain the existing “good cause” and “reasonably necessary” requirements in the final rule. Therefore, if the representative authorized by employees is a third party, the third party may accompany the CSHO during the physical inspection of the workplace if in the judgment of the CSHO, good cause has been shown why the third party's accompaniment is reasonably necessary to the conduct of an effective and thorough inspection of the workplace (including, but not limited to, because of their relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills).

1. Comments That Supported Removing the CSHO's “Good Cause” and “Reasonably Necessary” Determination Requirement in Some Form

A number of commenters asserted that OSHA should abandon the existing “good cause” and “reasonably necessary” requirement for third-party employee representatives and adopt one of the proposed alternatives in the NPRM. For example, some commenters requested that OSHA pursue the first proposed alternative—removing the CSHO's “reasonably necessary” determination, with the CSHO deferring entirely to the employees' selection of a representative (
e.g.,
Document ID 1023, p. 3; 1763, p. 5-6, 7-8; 1769, p. 4-5; 1777, p. 3-4; 1934, p. 4-5; 1948, p. 2; 1958, 8-9, 13; 1969, p. 2-8; 1972, p. 7-8; 1978, p. 1-2; 11231). According to these commenters, the “good cause” and “reasonably necessary” requirement is contrary to the text of the OSH Act, infringes upon workers' rights, and impairs the Act's safety and health goals.

First, several commenters argued that the “good cause” and “reasonably necessary requirement” is contrary to the language of the OSH Act. For example, National COSH contended that requiring employees to demonstrate “good cause” as to why a representative is “reasonably necessary” is an “extra hurdle the employees' representative needs to clear before qualifying” that is not supported by the language of the Act (Document ID 1769, p. 5). According to National COSH, section 8 of the Act “properly determines when the employees' selected representative has a right to participate in the inspection: that is, when their purpose is to aid the inspection” (Document ID 1769, p. 5). Likewise, the AFL-CIO stated that “[w]orkers' belief that their chosen representative will support them is sufficient reason to find that the representative will aid the investigation” (Document ID 1969, p. 6). In the AFL-CIO's view, “there is no distinction between deferring to workers' choice of representatives and finding that the workers' choice is reasonably necessary to aid the OSHA investigation” (Document ID 1969, p. 6).

In addition, commenters argued that section 8 does not authorize CSHOs to decide whether good cause has been shown that a third-party employee representative is “reasonably necessary.” For example, Farmworker

Justice argued that employees' right to a representative “should not depend on a determination by the CSHO” (Document ID 1763, p. 8). Additionally, the AFL-CIO asserted that “giving a CSHO discretion to exclude an employee's third-party representative as not `reasonably necessary' is contrary to the plain terms of the Act” (Document ID 1969, p. 3-4), and that “the Secretary does not have authority to impose limitations on employees' rights that are inconsistent with the Act.” (Document ID 1969, p. 4). Similarly, National COSH argued that under section 8, employees' selected representative has a right to participate in the inspection regardless of whether the representative's “participation is `reasonably necessary to the conduct of an effective and thorough inspection,' as determined in the judgment of the CSHO” (Document ID 1769, p. 4). The AFL-CIO recommended that OSHA remove the “good cause” and “reasonably necessary” requirement to “ensure that the full benefits of the workers' choice is not limited by misinterpretation or CSHO variability, aligning with the purpose and language of the OSH Act” (Document ID 1969, p. 6). Similarly, Sur Legal Collaborative recommended “OSHA remove the proposed language in 1903.8(c) that `in the judgment of the Compliance Safety and Health Officer, good cause' must be shown” (Document ID 11231). Additionally, U.S. Representative Robert “Bobby” Scott advocated for an unqualified right for workers' lawyers to act as “representatives in all phases of OSHA inspection, enforcement, and contest” (Document ID 1931, p. 8).

Second, various commenters contended that requiring good cause be shown that a third-party employee representative is “reasonably necessary” infringes upon workers' rights by imposing a higher burden for employee representatives than for employer representatives. The AFL-CIO argued that although “the plain language of the Act places no greater restriction on who employees may choose as their representative than it does on who the employer may choose,” the “existing regulation and the new, proposed rule, on the other hand, only place restrictions on employees' choice of representative, creating unequal access to the right granted both parties by the OSH Act” (Document ID 1969, p. 3) (emphasis omitted). Similarly, National Nurses United argued that because employers are not required to demonstrate “good cause” at “any part of the investigation process, OSHA should not require employees to justify their choice of representative” (Document ID 1777, p. 3).

The American Federation of Teachers (AFT) argued that this language allows CSHOs too much discretion to reject a third-party representative that employees have selected and that disallowing third-party certified bargaining agents “is incongruent with rights secured by the [NLRA] or public sector labor relations laws” (Document ID 1957, p. 2). National COSH argued that OSHA should defer to employee choice because the “presence of a representative chosen by workers helps ensure workers can participate in the process without experiencing retaliation” (Document ID 1769, p. 3). According to National COSH, “when workers are accompanied by a trusted community, labor, or legal representative, they can more easily overcome the threat of retaliation and other barriers to give OSHA the information it needs for a comprehensive inspection” (Document ID 1769, p. 3). More generally, UFCW asserted that OSHA should defer to employee choice because “limiting the employee's ability to choose representation for a matter as serious as an OSHA inspection is unfairly restrictive of the workers basic rights” (Document ID 1023, p. 3).

Third, other commenters asserted that the inclusion of the “good cause” and “reasonably necessary” requirement impairs the safety and health goals of the OSH Act. For example, the AFL-CIO stated that “[i]t is inarguable that worker participation improves OSHA investigations by increasing the CSHO's knowledge of the workplace and hazards” and that “[w]orker participation is enhanced by the presence of a worker advocate through increasing trust, increasing knowledge and expertise, providing language justice, protecting workers from retaliation, and empowering workers in the investigation process to create a safer workplace” (Document ID 1969, p. 6).

In addition to commenters that supported eliminating the “good cause” and “reasonably necessary” requirement altogether, the Texas RioGrande Legal Aid (TRLA) supported the second alternative proposed in the NPRM and advocated for adding a presumption that a third-party representative authorized by employees is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace (Document ID 1749, p. 2). TRLA suggested that employers can rebut the presumption by “show[ing] good cause to the contrary” (Document ID 1749, p. 2).

Farmworker Justice supported the third alternative proposed in the NPRM, arguing that “OSHA should expand the criteria for an employees' representative that is a third party to participate in the inspection to include circumstances when the CSHO determines that such participation would aid employees in effectively exercising their rights under the OSH Act, and OSHA should defer to employees' selection of a representative who would aid them in effectively exercising their rights” (Document ID 1763, p. 8). The Strategic Organizing Center stated that no “additional criteria should be imposed on the workers' process for selecting their representatives, nor on the CSHOs for interpreting or approving of that process” (Document ID 1978, p. 2). However, the Strategic Organizing Center stated that if OSHA were to adopt “any criteria regarding worker selection of representation, it should be used only to help inform workers of their right to choose a designee” (Document ID 1978, p. 3).

2. Comments That Generally Supported Retaining the Existing “Good Cause” and “Reasonably Necessary” Requirement and Opposed the NPRM's Alternatives

In contrast, many commenters who were otherwise opposed to this rule responded that OSHA should not remove the “good cause” and “reasonably necessary” requirement for a third party to accompany the CSHO during the walkaround (
e.g.,
Document ID 1754, p. 2; 1762, p. 4-5; 1770, p. 3; 1954, p. 5; 1966, p. 4-5; 1974, p. 5).

Several commenters argued that the “good cause” and “reasonably necessary” standard ensures that the third party has a legitimate inspection purpose for being on-site (see,
e.g.,
Document ID 1762, p. 4-5; 1770, p. 3). For example, the American Petroleum Institute argued that the “good cause” and “reasonably necessary” requirement ensures that “the third party has a defined and accepted interest in the inspection,” which “help[s] reduce the risk of potential security issues their participation could raise” (Document ID 1954, p. 5). The Chamber of Commerce stated that OSHA should retain the “good cause” and “reasonably necessary” requirement because providing employees discretion to authorize any third-party as a representative “will turn OSHA inspections into an opportunity for individuals or groups with grievances or an agenda against the employer to advance their interests by gaining full access to the employer's property” (Document ID 1952, p. 3). The

Employers Walkaround Representative Rulemaking Coalition also emphasized that because the purpose of a third-party representative is to aid the inspection, not to aid employees, OSHA should not defer to employee choice alone (Document ID 1976, p. 15-16).

Some commenters supported retaining the existing the “good cause” and “reasonably necessary” requirement without modification (
e.g.,
Document ID 1974, p. 5), while other commenters had questions about how OSHA will determine whether good cause has been shown why employees' chosen third-party representative is reasonably necessary and recommended that OSHA revise the requirement by providing further guidance (
e.g.,
Document ID 1762, p. 4-5; 1770, p. 4; 1775, p. 4-6; 1776, p. 5-6; 1938, p. 2-3; 1954, p. 5; 1956, p. 3-4; 1965, p. 11-16; 1974, p. 5-7; 1976, p. 11-14).

Some of these commenters disapproved of the “discretion” afforded to CSHOs under the proposed rule and contended that the proposed rule lacked sufficient specificity and a “defined process” to determine the employee representative (Document ID 1976, p. 11-15; see also 0040, p. 4-5). For example, the State Policy Network contended that further guidance is necessary because “[t]he lack of measurable criteria, authoritative definitions, or concrete examples of what constitutes `good cause,' `positive contribution,' or `reasonably necessary' delegates inappropriate and broad discretionary authority to the CSHO,” which it argued will “result[ ] in confusion, inconsistencies, potential financial and safety risks in workplaces, and overall uncertainty in the outworking of state plans” (Document ID 1965, p. 1, 11).

Along the same lines, many commenters asserted that the vagueness of the “good cause” and “reasonably necessary” requirement will result in disparate application (
e.g.,
Document ID 1754, p. 2-3; 1762, p. 4-5; 1770, p. 4; 1775, p. 6-8; 1776, p. 5-6; 1938, p. 2-3, 11; 1956, p. 2-4; 1965, p. 1, 11-16). For instance, the Coalition of Worker Safety expressed concern that the rule “contains no mechanisms to enforce the `good cause' or `reasonably necessary' requirements beyond the CSHO's discretion,” which it contends “puts employers at the mercy of the CSHO's unfettered subjective decision making about the meaning of `good cause' or `reasonable necessity' [and] provides employers no recourse—aside from the warrant process—to challenge the CSHOs['] determinations” (Document ID 1938, p. 2).

Commenters also critiqued a lack of employer input in the determination process (Document ID 1726, p. 3) or asked whether there was any oversight over OSHA's inspections (Document ID 0040, p. 4-5) and what “recourse [ ] a business owner h[as] to challenge the selection process” (D

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2024-06572. Public record. Not legal advice.