Proposed Rulemaking: Defining the Roles of Employer Representatives and Representatives Authorized by Employees During Workplace Inspections

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The Division of Occupational Safety and Health (or Cal/OSHA) within the California Department of Industrial Relations has proposed to add Section 331.8 to Title 8 of the California Code of Regulations, or the so-called “walk around rule,” to explain and define the roles of the employer representative and the representative authorized by employees during a workplace inspection.

Background:

The federal Occupational Safety and Health Act of 1970 (29 USC § 651 et seq.) covers most private sector employers and their employees in all 50 states either directly through the federal Occupational Safety and Health Administration (“OSHA”) or indirectly through a “state plan” approved by OSHA. California is a state plan state. If OSHA establishes a new or revised standard, a state plan must adopt its own standard that is at least as effective as the new or revised federal standard within six months.

On April 1, 2024, OSHA issued a final rule amending Section 1903.8(c), which addresses the workplace inspection process. It is well established under state and federal law that a representative of the employer and a representative authorized by the employees shall be given the opportunity to accompany the Division’s inspector during an inspection. The amendment to the federal rule clarifies who may be considered a representative authorized by the employees when that representative is not an employee of the employer subject to the inspection. Under the amended rule, a third party may be deemed a representative authorized by employees when, in the judgment of the Compliance Safety and Health Officer, good cause has been shown why their presence is reasonably necessary for an effective and thorough inspection. The rule describes that a third party’s presence may be reasonably necessary based on their “relevant knowledge, skills, or experience with hazards or conditions in the workplace or similar workplaces, or language or communication skills.” The new federal rule went into effect on May 31, 2024. There is no California regulation that defines the term “representative authorized by … employees,” found in Labor Code Section 6314. The proposed rule adopts the same definition as the one in the federal rule found in 29 CFR § 1903.8.

Proposed rulemaking areas of focus:

1.      331.8(a) is added, to allow both a representative of the employer and a representative authorized by employees to accompany the Cal/OSHA inspector during the inspection of the worksite. Subsection (a) authorizes the Cal/OSHA inspector to allow multiple representatives for employer and employee and authorizes the inspector to resolve any disputes as to who the representatives are. The inspector is thus allowed leeway to permit more than one representative for the employer or the employee and to resolve any dispute as to the number of representatives or their identities. The employer or employee representative may object to someone’s participation in the workplace inspection, and the inspector is authorized to make a final and immediate decision to avoid delays or interference with the inspection process.

2.      331.8(b) establishes who may be designated as the representative authorized by employees for purposes of accompanying the inspection. Where the employee representative is an employee of the company or the collective bargaining (union) representative, they will be allowed to accompany the inspector. If the authorized representative of employees is someone other than an employee or collective bargaining representative, it must be shown that their accompaniment is reasonably necessary for an effective and thorough inspection.

3.      331.8(c) is added to establish the inspector’s authority to lead the inspection and make sure that the conduct of the representatives who participate does not interfere with the effectiveness of the workplace inspection.

4.      331.8(d) is added to allow the employer to protect trade secrets by requiring that any employee representative in an area containing trade secrets be an employee of the company.

Employer takeaways:

·         Increased Presence of Third Parties (Non-Employee Representatives) 

o   More Expansive Definition: The rule allows union organizers, safety consultants, or other third parties to join inspections if the inspector believes they are "reasonably necessary" for a thorough inspection due to their knowledge, skills, or ability to communicate with employees.

o   Non-Union Workplaces: Even in non-unionized environments, external representatives or union agents may obtain access to the worksite. 

·         Potential for More Adversarial Inspections 

o   Increased Scrutiny: The presence of third-party representatives could lead to more contentious and thorough inspections, potentially causing more citations.

o   Increased Litigation Risk: Information gathered by third-party experts could be used by plaintiffs' attorneys in future, separate, or expanded litigation against the employer. 

• Shift in Inspection Control and Authority
• Inspector Discretion: Cal/OSHA inspectors will have the authority to determine if a third party is necessary and to limit the scope of engagement of both employer and employee representatives.
• Restriction on Employer Representatives: Inspectors may limit the employer to a single representative and, in some cases, may exclude an employer representative if they deem the representative is interfering with the "fair and orderly" inspection. 

• Enhanced Legal Challenges over Warrants 
• Easier Warrant Procurement: The proposal makes it easier for Cal/OSHA to get warrants for inspection, since they will have established rules defining authorized representatives that courts are likely to accept.
• Increased Refusal Consequences: Employers who refuse entry to the inspector and the chosen third-party representative may face more significant legal hurdles in challenging the inspection, as the new rule codifies the third party's right of access. 

• Trade Secret Protection Challenges
• Third-Party Access: While the proposal allows employers to limit third-party access to areas with trade secrets to, for example, a technical expert, the presence of outsiders poses a risk to proprietary information. 

·         Minimal Direct Costs, High Indirect Impact 

o    Operational Disruption: While Cal/OSHA notes the rule imposes minimal direct compliance costs, it admits potential disruption to operations.

o    Administrative Burden: Employers will need to spend time training staff on how to manage these new, potentially more complex, inspection scenarios, including identifying and managing third-party visitors.

If you have questions about government visits at your worksite, contact the Rosasco Law Group APC for assistance.