Legally Speaking: Surviving an OSHA Inspection

Bob Dunlevey

Bob Dunlevey is an attorney with Dunlevey, Mahan & Furry (www.dmfdayton.com) in Dayton, Ohio. He is well recognized for his counseling and defense of businesses having employment-related issues, including federal and state court litigation and OSHA proceedings, wage-hour compliance, collective bargaining, wrongful discharge defense, and regulatory compliance. He can reached at rtd@dmfdayton.com.

June 1, 2014

The Occupational Safety and Health
Administration (OSHA) is currently
escalating its inspection efforts. If
your company has not yet experienced an
OSHA inspection, chances are it will
sooner rather than later. While in
certain cases inspections may be random,
oftentimes an inspection can be
initiated by a disgruntled employee, or
by well-publicized accidents. It is now
a common practice for police and fire
departments to call OSHA when they are
on the scene of a job-related accident.
When OSHA appears, the employer’s
initial response will determine his or
her success in avoiding and defending
citations. OSHA’s first visit
after an accident is the most important
event in the life of the investigation.
It is a mistake to think you have
nothing to hide, and as a result, take
no action. Every business should have
procedures in place for dealing with an
inspection. With planning, employers can
manage the inspection effectively to
minimize work disruptions, present the
employer and worksite in the best light
possible, maintain positive employee
relations, and preserve sound
relationships with the government
agency. Failing to plan, however, may
result in excessive civil penalties,
significant abatement costs, criminal
prosecutions, negative media coverage,
and deteriorating employee relations.
Taking effective steps before, during,
and after a government inspection or
investigation is critical to limiting
your liability.

Remember that you are entitled to
representation in an OSHA inspection and
OSHA must give your company a reasonable
opportunity to have your safety
consultant or OSHA attorney travel to
your facility before the inspection
commences. Do not be in a hurry to let
OSHA into your facility—it is not
altogether unusual for companies to make
an OSHA Compliance Officer (C.O.) wait
as long as 2 hours for their
representation to arrive, although this
is at the outer limits of a reasonable
time frame.

When OSHA appears, you have 2
options: permit the inspection or refuse
it. If the inspection is permitted,
strict parameters need be set in order
to keep the C.O. from having the
opportunity to engage in a fishing
expedition for additional violations.
The choice to grant access should be
based on the facts and circumstances
surrounding the citation, and the
working environment at time of
inspection. Generally, however, if the
C.O. appears with a proper complaint, he
or she should be permitted to inspect
the premises—but only for the item
identified in the complaint. The
employer’s limitations on the
inspection should be stated to the C.O.,
and those limitations should be strictly
followed. Remember, OSHA is empowered to
expand the inspection scope and issue
citations for other violations that may
be in plain sight as the C.O. moves
between the entrance to the work place
and the area of the
inspection—anything they can see
is fair game. To mitigate potential
issues, it is not unusual for an
employer to have the C.O. walk outside
or around the facility to enter a back
or side door immediately adjacent to the
area of inspection.

An employer has the right to deny
access to OSHA inspectors until a search
warrant is obtained, and there are
benefits to this approach. A warrant
must identify the scope of the
inspection, and the time limitations for
performing the inspection, and it gives
the employer time to properly prepare
the facilities. Requesting a warrant is
advised when there are numerous items
listed on the complaint, or a
“wall-to-wall” inspection is
intended. While it may seem risky to
“annoy” a C.O. by requesting
a warrant, it does not mean he or she
will be overly zealous about an
inspection.

Well before OSHA appears, you should
establish a protocol for an inspection
and designate a team to interact with
OSHA—only these team members who
are trained in the proper protocol
should interact with the OSHA
investigators. Within this team, you
should designate one individual to
control and monitor the entire process.
This person should prepare to cooperate
with OSHA inspectors as legally
required, but also take care not to
divulge unnecessary information.

Abide by the following rules and
avoid being excessively cooperative or
overly communicative; a high level of
cooperation will not mitigate your
exposure to liability, and may
complicate or prolong the investigation.

  • Designate one
    safety-knowledgeable manager to
    interface with
    OSHA during the current inspection and
    in any future visits.
  • Consider
    whether to immediately employ an
    experienced safety consultant or OSHA
    attorney to handle the initial
    inspection and any future inspections to
    minimize your exposure. You or an
    employee may accidentally say or do
    something that might harm your business.
    OSHA investigators must
    wait—within reason—until
    your representative arrives, so do not
    feel pressure to immediately allow them
    to start an inspection.
  • Review
    the C.O.’s credentials and obtain
    his or her full name and office address.
  • Determine if the inspection
    is random or if it has been caused by a
    complaint or accident.
  • Inquire
    as to the scope of the inspection
    (specific piece of equipment, area, or
    wall-to-wall), get a copy of the
    complaint at the outset, and confine the
    inspection to the items in the
    complaint.
  • If the
    C.O. is planning a wall-to-wall
    inspection, consider requiring a search
    warrant.
  • If it is
    a narrow inspection, reach an agreement
    as to the approach and scope of the
    inspection.
  • Walk
    with the C.O. through the entire
    inspection.
  • Try to
    postpone employee interviews until you
    have a thorough appreciation of what
    occurred, who was involved, what OSHA
    Standards are applicable, and whether
    your company was in compliance at the
    time of the accident. Your
    representative is entitled to brief
    employees in anticipation of their
    interviews, and this is well worth the
    time and effort.
  • If the
    C.O. asks what happened, do not guess,
    even if you think you know.
  • Take
    pictures of anything OSHA takes pictures
    of, and make sure they are from the same
    angle and at the same time.
  • Do not
    provide any unsolicited information, and
    do not permit anyone else to do so.
  • Do not
    provide documentation to OSHA until you
    and your safety experts have thoroughly
    reviewed the
    documentation—consider whether the
    information can be conveyed in a way
    that states the company’s position
    in the most positive light.
  • Take
    minutes or notes regarding everything
    the C.O. does and says, including those
    to whom he or she speaks (the C.O. has
    the right to interview employees outside
    of your presence, but you may be present
    when supervisors are interviewed). Be
    careful what you write, as anything
    written is discoverable—meaning
    it can be requested and used during a
    trial.
  • If the
    C.O. has a video recorder, remember that
    even though it may be pointed to the
    ground, it may be recording audio. This
    is a common tactic used during
    inspections.
  • Do not
    take pictures or write emails during or
    after the inspection that could be used
    against you—they are discoverable.
  • Refrain
    from having employees write witness
    statements of the events that caused the
    inspection—these statements are
    admissible at time of trial and are
    seldom beneficial.
  • A
    company representative can be present
    when the C.O. interviews a supervisor,
    and a knowledgeable representative or
    attorney should always be present. This
    representative should ask for a copy of
    any written statements immediately upon
    the conclusion of the interview—do
    not let the
    supervisor sign a written statement
    until you are sure it properly states
    the testimony of the supervisor.
  • Limit
    the C.O.’s conversation with
    employees at their work stations and do
    not permit employees to group themselves
    around the C.O. or to engage in group
    discussions.
  • Avoid
    reenactment of accidents and merely
    permit the C.O. to review the normal
    operations.
  • Take
    thorough notes at the “closing
    conference” when the C.O. reviews
    his or her findings. An experienced
    attorney skilled in OSHA defense should
    be present if it is a significant
    matter, such as a fatality.
  • Determine whether to
    contest any citation based upon the
    costs involved, the penalty amount, the
    severity of the citation, the precedent
    set, the ability to abate the alleged
    violation (time and method), the
    likelihood of future violations, and the
    impact on other possible collateral
    litigation. An informal settlement
    conference is available at OSHA’s
    offices, but is seldom beneficial.

While a company can receive a
substantial reduction in an imposed
monetary penalty through a settlement,
it is crucial to consider whether the
other requirements of the settlement may
be more damaging to the long-term health
of your business. If the settlement
requires you to change your methods of
operation in some fashion that will
either be excessively costly or
substantially impede effective and
economic production, then a settlement
may not be a good option. Do not measure
the success of the outcome of the
investigation by the number of dollars
that the penalty has been reduced, but
instead, by whether the agreed-upon
abatement efforts impede your normal
operations. Also, it is possible that
other types of civil court actions and
administrative proceedings may arise out
of the accident, and any of OSHA’s
documentation will be discoverable.

OSHA’s enforcement activities
have changed dramatically in recent
years, and businesses must refine their
approach to dealing with OSHA in order
to successfully make it through
inspections. Few attorneys and
consultants are adequately equipped to
deal with safety issues, especially when
there are serious accidents, so it is
worthwhile to seek out a consultant who
is very familiar with safety issues and
OSHA proceedings. Take the time now to
consider how you will approach an
inspection before your day comes. Having
a pre-set plan in place can make a
significant difference in OSHA’s
final determination and any penalties
your business may face.