Employers must to be ready to effectively deal with OSHA inspections by understanding the process and asserting their legal rights to minimize potential citations and penalties. Understanding employee interviews, whistleblower protections and the closing conference with OSHA are crucial.
One part of the OSHA inspection is to conduct interviews of both hourly and management or supervisory employees. All interviews should be scheduled away from the jobsite or work area and normally will be held in a company conference room.
With respect to hourly employee interviews, OSHA takes the position that no management personnel are allowed to be present based on the “informer’s” privilege. Arguably, the hourly employee being interviewed can request to have an employee representative or even a company management person present, although the OSHA inspector may not allow any company management person to attend the interview. Prior to an hourly employee’s interview, it is important that the employee be advised of his or her rights, that the company appreciates his or her cooperation in the inspection and, most critically, to always tell the truth.
It is also important for employers to recognize that all employees are protected under Section 11(c) of the Act, which provides for employee whistleblower rights. This is particularly true for employees who have either filed a complaint or participated in the OSHA inspection in some manner. With respect to management or supervisory interviews, it is important for another management person to be present and take detailed notes of the questions and answers during the interview. In fatality investigations, it is normal for the company attorney to be present during all management and supervisory interviews. During the management and supervisory interview, the company should note that it will not permit any tape recording of the interview, and the supervisor or manager should be advised in advance that there is no requirement for him or her to sign any statement prepared by the OSHA investigator.
During the inspection, the OSHA investigator will request certain documentation, which most likely will include the OSHA 300 logs for up to the last five years, any required training documentation, safety and health policies and procedures, monitoring results, medical surveillance, previous safety audits, and documents that are required OSHA safety and health standards. It should be noted that OSHA may use a standard document request form. Depending on the scope of the inspection, OSHA is not necessarily entitled to all documents requested. This is particularly true with respect to medical records for which OSHA must obtain a Medical Access Order to receive these types of documents.
During the inspection, it is important that the employer constantly monitor what potential safety and health violations the compliance officer may be observing. In order to establish a violation of an OSHA standard, OSHA must, as part of its burden of proof, show that the employer had knowledge of the alleged safety and health violation. To establish knowledge on the part of the employer, OSHA must demonstrate that either a manager or supervisor had knowledge of the violation, and thus, that knowledge is imputed to the company. Specifically, OSHA must prove that the employer knew of the violation or, with the exercise of reasonable diligence, could have known of the non-compliant condition.
Also during the inspection, the employer must be constantly determining if there is, in fact, any violation of a safety and health standard and if that violation is a result of unpreventable employee misconduct that is an affirmative defense for the employer. To establish this defense, the employer must show that it had established work rules designed to ensure a safe worksite and to avoid the specific violation; that it communicated and trained employees as to the work rules; that it had taken the appropriate steps to discover the violation; and, finally, when violations are observed, that the employer effectively enforced the rules and practices, usually through some form of discipline. This four-part test to establish unpreventable employee misconduct must be fully documented for the employer to be able to avail itself of this defense. It should be noted that, of the citations that are either withdrawn by OSHA or vacated by the Review Commission, 70 percent are the result of the employer being able to establish the unpreventable employee misconduct defense. Thus, this defense is very critical to reducing citations, as well as eliminating penalties during an inspection.
Results of the Inspection
Once the OSHA investigator has completed the inspection, he will conduct what is commonly referred to as a “closing conference.” Usually, the closing conference involves a brief description as to possible violations of OSHA’s safety and health standards, as well as of the OSHA General Duty clause, which may or may not be cited by OSHA. As a general rule, there will be no discussion as to the penalty amounts or classification, or even abatement dates at the closing conference. It is unlikely that the compliance officer will have that information. However, if an inspection has lasted more than five months, it is likely that the discussion will be in more detail and potentially, if the six-month period is about to expire, the OSHA inspector may deliver the citation at the closing conference.
During the closing conference, the employer should note any abatements that it made to any safety concerns that may have been raised by the OSHA inspector during the inspection. Also, the OSHA inspector will discuss the employer’s appeal rights once they receive the citations. Normally the closing conference is not the appropriate time for employers to debate the merits of the potential citations.
Under the act, all citations issued by OSHA must be in writing, describe the violation with particularity, be filed within the six-month period of the violation and propose specific penalties for each citation. Normally the OSHA citations will be served by certified mail, although OSHA has recently been using overnight deliveries to ensure the citations are delivered and that there is a record of receipt.
Once an employer receives a citation, the citations must be posted for three days or until all the abatement on each of the citations has been corrected, whichever is longer. Under the act, the penalty amounts for different citations vary. Specifically, “other than serious,” violations can have up to $7,000 in penalties. The same penalty amount of $7,000 is also for any “serious” violation. For a “willful” violation, the act allows up to a $70,000 per violation with a $5,000 minimum. Willful violations are permitted to be grouped, which limits the total potential penalty amount.
For “repeat” violations, OSHA can assess up to $70,000 per violation. OSHA recently expanded the citation “look back” period for repeat violations from three years to five years of previously issued similar citations to the employer. A category not listed in the Act but being utilized by OSHA fairly frequently is the “egregious” citation, which has a penalty amount up to $70,000 per violation but, unlike the willful violation, no grouping is permitted. Finally, the “failure to abate” penalty can be up to $7,000 per day from the time period the abatement was supposed to be completed.
Once an employer receives the citation, it has several options to use in dealing with the citations. Specifically, the employer can agree to the citations and pay the full penalty. This is never recommended. The second option is to attend an OSHA informal conference within 15 working days of receipt of the citation and try to work out an informal settlement with the area director or his or her designee.
If the employer is unable to work out an informal settlement, then it is critical that the employer file a Notice of Contest with 15 working days from receipt of the citation. Some state-plan states have different time periods for filing the Notice of Contest. In any case, it is critical that the employer file the Notice of Contest if they are unable to resolve the matter prior to time period’s end. Once the Notice of Contest has been filed, the employer can still work with the OSHA attorney to obtain a formal settlement prior to going to a hearing. If an employer is unable to work out a formal settlement with the OSHA attorney, then a hearing will be held before the Administrative Law Judge connected with the Occupational Safety and Health Review Commission.
It is critical during every phase of the OSHA inspection for employers to continue to assert their legal rights. Failure to follow the above steps in conducting an inspection will undoubtedly lead to more citations and increased penalties. While employers are squeamish on asserting their rights, thinking that they will be penalized for such assertion, this is an incorrect approach because OSHA officials are used to employers asserting their legal rights during many inspections. By staying on top of the OSHA inspection, an employer can anticipate what potential violations may be cited by OSHA and thus be able to either provide the necessary evidence to assert a defense to that citation or to actually show through evidence obtained during the inspection that no violation actually existed. In addition, by advising supervisors and managers of their legal rights and ensuring they are properly trained on all OSHA requirements, employers will ensure that their interview will not provide the “smoking gun,” which will help OSHA meet its burden of proof for each citation.
OSHA Inspections: Asserting Legal Rights While Minimizing Exposure to Citations and Penalties – Part I explained how employers can stay on top of OSHA inspections and minimize potential citations and penalties, as well as be prepared to assert their legal rights.