OSHA rescinded a memo creating the Union Walk Around Rule, which stated that non-union employees may elect anyone to accompany OSHA compliance officers as they inspect the employer’s worksite.1
OSHA, under the new direction of the Trump Administration, inherited a legal challenge to the Union Walk Around Rule but has now decided to drop its defense of the rule and rescind it. On September 8, 2016, a lawsuit was filed by the National Federation of Independent Business (“NFIB”) seeking to enjoin and strike down the Walk Around Rule.2 NFIB argued that there is nothing within the Occupational Safety and Health Act allowing a non-employee to accompany the compliance officer. NFIB argued that the Union Walk Around Rule violates the Administrative Procedures Act because it is, in fact, a standard (or attempts to undo a previous standard). Standards are required to go through notice and comment rulemaking, a much more difficult process than issuing true guidance. The court had already ruled against OSHA on a Motion to Dismiss NFIB’s claim. Much of the court’s reasoning suggested that NFIB would prevail.