States Caught in Crosshairs of Biden-Era Worker Inspection Suit

Efforts to scale back a federal rule governing who can join safety inspectors during OSHA workplace inspections open the door for legal attacks on state plans that already adopted the previous administration’s policy.

The shifting political priorities at the federal level surrounding employee representation during inspections will make states that maintain some version of the Biden-era updated US Occupational Safety and Health Administration rule ripe for lawsuits, according to legal observers.

That means states that moved to comply with the regulation issued by OSHA in March 2024 will be left to defend it if the Trump administration backs away from the policy as expected.

“This is an easy rule for them to rescind,” said Susan Bisom-Rapp, a professor at California Western School of Law. “With a rule like this, I’d anticipate there would be litigation since there’s nothing stopping employer associations from suing a state.”

States with OSHA-approved plans have six months to incorporate any new revisions to a safety and health standard that would essentially make it at least as effective as the provisions required at the federal level. States known for their progressive policies like California have emphasized worker protections by implementing state-specific regulations for hazards that don’t mirror rules at the federal level.

Michigan’s state OSHA is the latest state to get into alignment with the updated OSHA rule that went into effect last May, joining Kentucky in officially amending the process for employee representation during a safety inspection. Washington also moved to mirror OSHA’s directive on the rule, and more states are expected to follow suit.

It’ll be interesting to see what happens in states that have made those changes if the rule is withdrawn or ruled invalid by the federal court, Todd B. Logsdon, a partner at Fisher Phillips LLP, noted. “In some states like Kentucky and Indiana, they’re prohibited by state statute from having any regulations that are different than what federal OSHA has, or more stringent than what federal OSHA has,” he said.

The OSHA “walkaround” rule faces legal challenges, and industry groups are pushing for it to be among the regulations Trump rescinds as part of his deregulatory agenda.

The US Chamber of Commerce and several other business groups have asked the US District Court for the Western District of Texas to vacate the rule, arguing it exceeds the agency’s authority.

And the National Association of Manufacturers sent a letter to labor secretary Lori Chavez-DeRemer last month requesting the agency rescind the rule as unconstitutional.

The group has a notable alum within OSHA: Amanda Wood Laihow, the acting assistant secretary of labor for OSHA, who formerly served as the director of labor and employment policy for NAM.

“I cannot see the administration extending any resources on defending the rule, I think it’s much easier to rescind it,” Bisom-Rapp said.

Property Rights

OSHA’s rule broadened the scope of who can accompany its inspectors as they tour an employer’s worksite for hazards, take pictures, and talk with employees.

The Chamber-led lawsuit argued the walkaround rule impedes on an employer’s property rights protected by the Fifth Amendment, among other things.

“Property rights of employers are critical, and the employers have always had the upper hand as it relates to property rights,” said Carmen Martino, an OSHA expert at the Rutgers School of Management and Labor Relations. “Understanding that history, I’d be surprised if this rule moves forward with the same sort of openness that it has now.”

States that maintain their own walkaround rule could face a similar challenge, Bisom-Rapp noted.

Prior to the rule’s enactment, an employee representative who worked at the inspection site could accompany the OSHA inspector. At unionized sites, that often could be someone from a plant safety committee or a union officer. The inspector could invite an outside participant if the person had a specialized skill, such as being an occupational safety professional.

Conflicts sometimes arose when a union wanted a safety expert who wasn’t an employee to accompany an inspector and the company objected to the non-employee’s presence.

Martino notes even with the Biden-era expansion of the rule, the probability of those walkarounds happening, especially in non-union settings, remains relatively low.

“It’s still up to the OSHA inspector to make the call on who’s going to do the walkaround with them,” he said. “They are people who understand politics, and whoever is in the White House has an impact on OSHA.”

While worker advocates praised Biden for the measure, employer representatives argued it could allow labor activists into non-union workplace and potentially influence organizing campaigns.

“I don’t think we’re in a space now where you’re going to find any kind of activism by the agency even under the best circumstances,” Martino said.

Walkaround Fight Continues

The litigation in Texas federal court is the second time employer groups have challenged OSHA’s ability to have non-employee worker representatives join inspections.

The lawsuit acknowledged that OSHA followed proper rulemaking procedure for issuing notice and accepting public comments. But the employer groups found other problems with the regulation that they say make it legally deficient.

“There’s problems with it from a constitutional standpoint that you’re going to force an employer to allow somebody into their facility who’s not with the government,” said Logsdon.

“I’m a former safety professional and now an attorney who handles this, there’s nothing about that that improves safety. It’s all about assisting organized labor with organizing campaigns,” he said.

The Obama administration enacted a similar policy in 2013 by issuing an in-house interpretation letter, not a formal rule as OSHA did last year.

That policy was questioned by a federal judge in 2017, who said the change should have been made through notice-and-comment rulemaking. The Trump administration revoked the policy later that year and the case was dismissed.

“Either the Trump Administration will roll it back or it’s going to get resolved by the court, whether that’s through a settlement or through a decision by the court that it’s not going to stand,” Logsdon said.