In a SHRM Magazine Labor and Employment Law special section published May 16, 2024, Constangy partner and OSHA compliance attorney David Smith’s commentary was featured in an article entitled “Plan What to Do When an OSHA Inspector Arrives.”

The article explored the recent OSHA "walkaround rule," which has significant implications for employers as it empowers OSHA inspectors to allow third parties to join them during onsite inspections, such as union representatives or community activists. This can even include non-employees and non-unionized worksites. Organized labor may use the rule to access previously restricted job sites in new and creative ways.

In the article, Smith underscored the need for employers to take an active role in managing the presence of third parties during inspections. “So, if the third party accompanying the inspector is a union organizer, that person can show up wearing union apparel and ask workers 'clarifying questions,'" Smith said. The organizer’s appearance can “make a nice advertisement” for unions, he said. Employers must be ready to articulate to the inspector why multiple non-employee representatives could impede the inspection, ensuring that inspections are conducted without undue disruption.

Third parties accompanying OSHA inspectors pose safety concerns, and it was recommended that they follow all safety protocols. “Ask the nonemployee representative to sign a waiver of liability” to protect employers from tort liability, Smith recommended.

Furthermore, employers may require third parties to sign nondisclosure agreements to protect confidential information viewed during an inspection. It was noted that employers should understand property rights and the Fourth Amendment's protection against unreasonable searches.

Employers were advised to designate someone to meet the OSHA inspector and any accompanying third parties and to develop procedures for when the inspector arrives.

As noted by Smith, it is crucial to prevent interference with the inspection, as disruptive behavior may lead to suspension of the inspection or denial of further accompaniment by the third-party representative.

For the full article, please click here.


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