On May 21, 2024, the NAM sued OSHA in the Western District of Texas, challenging the agency’s final walkaround rule that would allow labor organizers, community activists, plaintiffs’ attorneys or even disgruntled former employees to accompany OSHA compliance officers during workplace safety inspections. The OSH Act, the 1970 law that created OSHA, authorizes an employee representative to accompany OSHA during a walkaround inspection. Since OSHA’s inception over half a century ago, that representative had to be an employee of the employer absent a few narrow exceptions. The new walkaround rule makes a radical change to that paradigm by permitting non-employee third parties to serve as the employee representative.
On summary judgment, we argued that the rule exceeds OSHA’s authority as Congress did not authorize third-party access to non-union workplaces or non-union third parties to represent unionized employees during OSHA inspections. The rule also violates the Fifth Amendment’s takings clause—which protects employers’ right to exclude third parties from their private property—by requiring third party access to employers’ property. And the rule is otherwise arbitrary and capricious in violation of the Administrative Procedure Act because OSHA failed to (1) reasonably explain its policy change from only allowing employees of an employer to accompany OSHA inspectors during an inspection; (2) consider all important concerns about the rule raised during the comment process like how employers can protect trade secrets and confidential business information; (3) consider alternatives to third-party access (e.g., allowing OSHA inspectors to retain experts and consultants); and (4) consider all the costs the rule imposes on employers.