New Walkaround Rule Welcomes Unions into Private Workplaces

Seyfarth Synopsis: The State of Washington is proposing a new workplace safety rule that allows employees to designate a non-employee third-party representative—including unrelated union activists—during workplace safety inspections conducted by the Washington Department of Labor & Industries, aligning with a recent federal OSHA rule. This move could significantly impact workplace safety protocols and employer obligations. Stay tuned as we delve into the details of this proposal, its legal challenges, and what it means for businesses in Washington.

The State of Washington proposed a new workplace safety rule allowing employees to designate a non-employee third-party representative to accompany Washington Department of Labor & Industries (L&I) inspectors during a workplace safety and health inspection. L&I’s proposal to expand access for unions follows the federal government’s lead due to an OSHA rule that became effective May 31, 2024. Employers have challenged the federal rule in Texas, arguing it exceeds federal OSHA’s rulemaking authority and is an improper expansion of access to their facilities, amounting to an unconstitutional taking. Similar challenges may follow in Washington.

Overview of the Federal Rule

On May 31, 2024, the Federal Occupational Safety and Health Administration’s (OSHA) “Worker Walkaround” Final Rule went into effect. OSHA’s Representatives of Employers and Employees regulation, 29 CFR § 1903.8, had previously allowed “additional representatives authorized by employees” to accompany OSHA inspectors on any workplace inspection. Prior to the Worker Walkaround rule, the scope of that representation was not defined. In reality, OSHA limited individuals who could accompany a compliance officer to an employee representative or, occasionally, individuals who may have relevant expertise in safety or health that may assist an OSHA compliance officer to be present during the investigation.

The Worker Walkaround rule expands the definition of “authorized representatives” to specifically include non-employee third parties, such as union activists, if good cause can be shown why that third party is reasonably necessary to an effective and thorough inspection of the workplace. Good cause can be shown through the third party’s relevant knowledge, skills, experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.

Overview of the State Rulemaking

On December 17, 2024, Washington L&I’s Division of Occupational Safety and Health (DOSH) initiated the rulemaking process to align the State with federal OSHA’s Walkaround Rule, as required by federal regulations. The Notice of Intent Preproposal indicates the State’s intent to mirror the OSHA Walkaround Rule by allowing employees to authorize another employee or a non-employee third party to serve as their representative during inspections conducted by DOSH investigators. As in the Walkaround Rule, the DOSH Rule would require a showing of why the third party is reasonably necessary to assist the investigator. However, the final decision whether to allow the non-employee third party is left up to DOSH, not the employer.

This Notice of Intent is the first step in the permanent rulemaking process. Next, L&I will provide opportunities for stakeholder and public comment. DOSH may revise the rule based on public comment. However, proposed rules that simply incorporate federal law may be implemented through an Expedited Rulemaking process—which is an option for Washington's Walkaround Rule. In this process, the agency files the proposed rule, sends the notice to interested parties, but does not hold a hearing.

Impact on Union Organizing

The Walkaround Rule, and any Washington state counterpart, would enable employees to invite union activists into a company’s jobsite with little-to-no limitation. There is no language that limits the third-party representation to recognized unions; a union that is in the middle of, or looking to begin, a campaign would be able to enter company property and accompany an inspector. The presence of a union representative on a workplace inspection may incorrectly signal to employees that a union is the best avenue for ensuring their health and safety are protected. This unfettered access to the workplace could have far-reaching ramifications on union organizing—labor organizers will be able to lawfully exploit that access in an effort to enter private property and make contact with unrepresented employees under the guise of furthering workplace safety.

Ongoing Legal Challenges

In response to OSHA’s Walkaround Rule, the US Chamber of Commerce and various business associations filed a lawsuit against OSHA for exceeding its statutory authority. In Chamber of Commerce of the United States of America, et al. v. OSHA, et al., the plaintiffs argue that the rule is arbitrary and capricious and is otherwise unconstitutional. Specifically, the plaintiffs argue that OSHA overreached its authority because Congress did not authorize unfettered third-party access to workplaces. The plaintiffs further argue that the rule forces employers to open their private property to third parties, constituting a taking in violation of the Fourth and Fifth Amendments.

The plaintiffs’ July 29, 2024, motion for summary judgment is pending in the US District Court in Texas.

Current Outlook

The court’s decision, or a change in direction by incoming OSHA leadership, will determine whether the OSHA Walkaround Rule will survive. Without a federal counterpart, DOSH would not be required to implement the same rule, although it may choose to do so independently.

Seyfarth will continue to monitor the case and local rulemaking. If you have questions about the OSHA Walkaround Rule, the DOSH rulemaking, or related issues, Seyfarth’s Seattle office is available to help.