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Section 657(e) of the Occupational Safety and Health Act prescribes that employees have a right, subject to the Secretary of Labor’s regulations, to have a representative of their choosing accompany the OSHA compliance officer during a workplace inspection (a walkaround representative).  A prior letter of interpretation from Milan Racic to OSHA, dated March 7, 2003,  (the “Racic letter”). created some confusion in OSHA’s eyes.  The Feb. 21, 2013, clarifying letter provides “a person affiliated with a union without a collective bargaining agreement or with a community representative can act on behalf of employees as a walk around representative so long as the individual has been authorized by the employees to serve as their representative.”  In this letter, OSHA noted that the Racic letter merely stated that a nonemployee who filed a complaint does not necessarily have a right to participate in an inspection.  The Racic letter did not address the right of workers at the facility without a collective bargaining agreement to have a representative of their own choosing participate in the inspection.  OSHA concluded that any interpretation prohibiting such a right was inconsistent with the act and regulations. As a result of the confusion created, OSHA withdrew the Racic letter.

OSHA highlighted the Secretary of Labor’s regulations, specifically 29 C.F.R. §1903.8 which qualifies the walk around right. Generally, the secretary or the compliance officer conducting the inspection determines who can participate in an inspection.  See 29 C.F.R. §1903.8(a)-(d).  Specifically, 29 C.F.R. 1903.8(c), expressly permits a third party who is not an employee of the employer to accompany the walk around when the compliance officer determines that the third party is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.

OSHA indicated that the regulations acknowledge that most employee representatives would be employees of the employer, but express a clear understanding that the regulations permit third-party representatives, especially in situations where third parties would allow for a more effective inspection.  OSHA noted that an employee representative who is neither an employee nor a collective bargaining agent could make important contributions such as:  providing experience and skill obtained from evaluating similar working conditions in other plants, eliminating language barriers where non-English speaking workers want a representative who is fluent in both their language and English, and where workers feel uncomfortable talking to the compliance officer without the presence of a representative of their choosing.

The Feb. 21, 2013 letter of interpretation clarifies the scope of those who can serve as employee representatives at OSHA walk-around inspections, which specifically allows “third parties to act as the employees’ walk around representative during these inspections.” This February 21st letter is now the guide for interpreting who qualifies as walk around inspection representatives for employees.