Professional Service Agreement

Client Alert: OSHA Clarifies Employee Representative Rights in Workplace Inspections with New Rule

April 05, 2024

The U.S. Department of Labor recently published a final rule clarifying the rights of employees to authorize a representative to accompany an Occupational Safety and Health Administration (“OSHA”) compliance officer during an inspection of their workplace. This new rule is effective on May 31, 2024.


The Occupational Safety and Health Act (“Act”) grants employees the right to have a representative present during OSHA inspections.One of the Act’s implementing regulations provides that a representative authorized by employees “shall be an employee of the employer.” However, the regulation also creates an exception for third-party representatives when “in the judgment of the Compliance Safety and Health Officer, good cause has been shown” why the third party is “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” The regulation points to two non-exhaustive examples – an industrial hygienist and a safety engineer.Further, an OSHA Standard Interpretation Letter concludes that an employee could authorize a person affiliated with a union or community organization to act as a third-party representative as such representatives make “a positive contribution to a thorough and effective inspection.”

A recent court decision challenged this interpretation in allowing union representatives, finding that OSHA’s existing regulation only permitted “employees of the employer” to be an authorized representative. Hence, the new rule was necessary to clarify the perceived conflict between the Act and its interpretation found in OSHA’s Interpretation Letter.

The New Rule: Clarifying Employee Representation

The new rule makes two changes.

  • First, in response to the court’s decision, it clarifies that employee representatives can be either an employee of the company or a third-party representative (like a union representative).
  • Second, consistent with OSHA’s longstanding practice, it clarifies that third-party representatives authorized by employees may have a variety of skills, knowledge, or experience that could aid an inspection. However, the right to have a third-party present is not absolute. The Compliance Safety and Health Officer conducting the inspection can still deny accompaniment if the third-party representative cannot show “good cause” for their presence during the inspection. This should ensure that third-party representatives contribute meaningfully to the inspection process.

Employer’s Action Items

With the new rule in place, employers should take several steps to protect their rights during an inspection.

  • Review Your Procedures. Employers can benefit from proactive steps to ensure a smooth OSHA inspection, such as developing a plan and designating a knowledgeable employee familiar with relevant policies and OSHA procedures. This employee should be prepared to request the compliance officer’s credentials and the purpose of the inspection. While not always available, copies of the complaints prompting the inspection should be requested. Finally, the designated employee should inquire about the employer’s right to have legal counsel accompany the inspector during the inspection.
  • Employer Consent and Protections Remain. Even with the new rule, employer consent is still necessary for OSHA to conduct a worksite inspection (absent a warrant). Furthermore, employers can protect trade secrets or confidential information by informing the OSHA investigator that certain areas are restricted to the third-party representative and request that any photographs taken in those areas be designated “confidential-trade secret,” in accordance with OSHA regulation, 29 CFR 1903.9.

If employers have any questions or concerns, we recommend they contact us to ensure compliance. For assistance, contact us at 423-764-4127 or by email at

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