Construction Law Newsfeed
Recommended Response When OSHA Comes Knocking
By: Stephen D. Harrison
The Regional Office of OSHA has stepped up the programmed inspections in this area. These inspections are randomly selected by OSHA, and are in addition to inspections related to (i) a complaint, (ii) a fatality or catastrophe, or (iii) a condition which OSHA deems to be imminently dangerous. Because of frequent inquiries related to these inspections, the following recommendations are offered:
1. Call your local AGC office. AGC's safety education director will assist AGC members with their OSHA inspections. His knowledge and experience with OSHA inspections is crucial to minimizing your company's expense to potential liability.
2. Ask for credentials of the OSHA inspectors. In most cases, the inspectors will voluntarily produce their credentials upon arrival. If the inspectors do not produce their credentials when you ask, you should refuse entry to your work place, and contact the local OSHA area office.
3. Allow entry of OSHA inspectors into the work place in most instances. Although you may insist on a search warrant, you are usually better served by participating and cooperating with the inspectors without a warrant. Requiring a warrant will delay an immediate inspection, but will usually create a hostile environment for the inspection. OSHA can normally obtain a search warrant from a federal magistrate because all that OSHA must show is a reasonable basis for believing that a violation is likely to be found. OSHA can easily meet this low threshold for obtaining a search warrant in most cases. In some instances, however, there may be a strong overriding need for extra time to prepare for the inspection which may justify requiring a warrant to delay the inspection.
4. Accompany the OSHA inspector during the initial walk around, and any subsequent walk arounds. The person selected to accompany the inspector should be knowledgeable of the applicable OSHA regulations and the specific conditions which you believe to be most critical in the inspection.
5. Give the OSHA inspector the same type of safety orientation as you would provide for any other visitor. Explain the facility safety rules and instruct the inspector on emergency procedures. If safety equipment is required in the area to be inspected, insist that the OSHA inspector be properly outfitted, and that the inspector adheres to all safety rules.
6. Pay close attention to the inspector's questions and answer them carefully. You have the opportunity to use the walk around to show that the particular hazard being investigated does not exist. This opportunity should be exploited.
7. Do not argue. You should utilize your time with the OSHA inspector to explain your position and to ask for input.
8. Take careful notes during the inspector's walk around. The information gathered during the walk around is what will be used to support resulting citations, if any.
9. Promptly address any matters noted by OSHA, if possible, and document corrective actions. This will evidence your good faith.
10. Obtain samples and photographs identical to the samples and photographs obtained by the OSHA inspector. Your company will be in a much better position to defend a citation or negotiate a settlement if they have the same information as OSHA.
11. When the OSHA inspector asks for a particular policy, procedure or manual, make sure that you provide: (i) only the specific policy which is requested (not the entire manual or group of policies),(ii) the most current version of the particular policy and (iii) only the original, without a copy which would allow a further critique after the inspection.
12. Mark documents that contain proprietary information or trade secrets as “Confidential-Trade Secret”, if the inspector asks for copies of such documents. The inspector should also be instructed that the documents should be treated as confidential. OSHA's files are subject to access through the Freedom of Information Act. Anything produced to an inspector will be released to a requesting party unless the employer has classified the documents as confidential.
13. For supervisory personnel, have a corporate officer, or the company's lawyer, present during interviews. Statements from supervisory personnel will be binding on your company. Therefore, every precaution should be taken, including having your lawyer, or a knowledgeable corporate officer, present during the interview.
14. For non-supervisory personnel, inform the employee in advance of an OSHA interview that the employee is not required by law to sign a written statement. Inform the employee that if they, of their own free will, desire to sign a statement, they should read it carefully before signing it to assure its accuracy. Also inform them that they should request a copy. Finally, after the interview by OSHA inspectors, you should interview the non-supervisory employee to determine what was discussed with OSHA. Recent cases in Texas have interpreted OSHA's authority to encompass interviews with non-supervisory personnel, without a representative of the employer present. Based upon these cases, the regional solicitor for the Department of Labor for this region has taken the position that OSHA can, and will, compel private interviews with non-supervisory personnel. The regional solicitor has gone as far as to issue instructions to compliance officers to cease non-supervisory employee interviews if a company representative is present, and instead to obtain subpoenas to compel private interviews. Therefore, these alternative recommendations for non-supervisory personnel interviews should be followed.
15. Pay careful attention during the closing conference. It is important that you understand the basis on which the OSHA inspector believes that a violation has occurred. In defending or settling a citation for an alleged violation, the company must know OSHA's basis for the citation. This closing conference is a good opportunity for frank discussions with the OSHA inspector concerning his perception of the offense.
16. Don't ignore the importance of these inspections. If your head is buried in the sand, guess what is sticking up in the air.