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What to Do When OSHA's in the Lobby

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BY MICHAEL P. DAVIS
CHAMBERLAIN HRDLICKA

OSHA inspectors seldom give advance notice of their inspections, and companies frequently are surprised to find an inspector show up unannounced in the lobby, asking to see a work site. These unexpected visits can catch companies off guard, and the safety director and other senior managers may be off site or unavailable to monitor an inspection that could result in citations or fines. What should managers do when OSHA is in the lobby?

If possible, first call legal counsel with experience in OSHA matters. Every OSHA visit is a legal matter, and clients can unknowingly waive rights or otherwise place themselves in a tenuous legal position. And if the visit results in citations, legal counsel will be able to represent the company more effectively if he or she is involved from the beginning.

RELY ON LEGAL COUNSEL
An attorney won’t necessarily be able to drop everything and be there within the hour, and senior managers may also be tied up in meetings or otherwise unable to accompany the inspector. If that’s the case, ask the OSHA inspector to come back the next day when legal counsel and other designated managers can walk along on the inspection. A company is within its rights to ask for this accommodation, although a one-day delay is all that can be expected.

A company can legally refuse initial access to its work site, but that’s not recommended. The inspector can easily obtain a search warrant from an administrative law judge, as well as a subpoena for records. This is not the tone to set, especially if there is a subsequent negotiation with OSHA for a reduction of penalties.

If the inspector agrees to come back the next day, this extra time should be used to assemble all of the records that are likely to be reviewed. This includes records of accidents going back three years, safety manuals, and employee training records.

KNOW YOUR RIGHTS IN THE OPENING CONFERENCE
When the inspector arrives the next day, begin by asking for his or her identification. This is not a mere formality because there have been instances where people have impersonated inspectors to perpetuate scams on companies.

The next step is the opening conference, where the inspector tells the company the purpose of the visit. Inspections can be triggered by accidents, anonymous complaints by employees, or a company may just get 'lucky' and get what’s called a targeted industry visit where the inspector wants to see everything on a jobsite.

If the visit is a response to an accident, then the inspection is limited to the site of the incident and anything else that was involved in that event such as machinery or equipment. Sometimes the OSHA inspector will want to broaden the inspection and ask to view the entire work site. Midway through the visit, she may say, "You don’t mind if I look in that building over there, do you?" Managers not used to OSHA visits may reflexively say yes to a broader inspection that may have no legal basis. From the inspector’s standpoint, why not look for potential safety violations throughout the work site if management gives tacit permission. Anytime an inspector asks for expanded access, ask your legal counsel for advice. There is nothing to gain by voluntarily submitting to a wider inspection if not permitted by law.

CREATE A RECORD OF THE INSPECTION
The OSHA inspector will take photos at the site of the accident or of any safety violations, and that is standard procedure. Watch carefully, and take pictures of everything that interests the OSHA representative so that the company has an identical visual record. Take pictures from additional angles because different perspectives can lead to varying conclusions.

Many times, the OSHA inspector will want to interview employees or managers as part of the inspection. The inspector won’t grant extra time to prepare for these interviews, but managers have the right to have a company lawyer or another manager present. Line employees are interviewed without oversight from company managers or lawyers in order to encourage candor, although they can request their own lawyer or a union representative to be present.

In the case of management interviews, legal counsel or another manager should take notes or record the conversation to create an independent account. Usually, the inspector will type up notes from the management interviews before leaving the work site and give the company a copy. If a manager or legal counsel has taken notes, he can immediately point out any discrepancies prior to a signature by the interviewee.

As for line employees, the company has the right to debrief them after the OSHA inspector departs. Although they don’t have to talk to management, they’ll usually reveal what they told the inspector. Their interview eventually will be part of the public record of the case. The company is prohibited from retaliating against an employee for filing a complaint or cooperating with an OSHA investigation.

FIX IT – NOW
Inspections can take anywhere from several hours to a full day, and at the end of the investigation OSHA and the employer will meet for a closing conference. The inspector won’t leave a document, but usually he will tell management about any violations that may result in citations. If they’re minor – say, a table saw didn’t have a proper guard – it should be fixed immediately, and  OSHA should be notified. Citations are issued by the area supervisor that reviews the inspector’s report but inspectors usually will give the company a sense of the potential violations at closing conference.

If citations are issued later, the company has 15 days to file a Notice of Contest – an objection to the citation – and that’s usually accompanied by a request for an informal conference. At the informal conference, company representatives can meet with the OSHA area director and can ask for a reduction in the severity of the citations or potential fines.

Usually, these conferences result in some relief, and a 50 percent reduction in proposed fines is not unusual, especially for small businesses with clean safety records. It will help mitigate the case if the company immediately fixed any safety deficiencies and if the safety violations were not willful or repeat offenses.

AN OUNCE OF PREVENTION
There are three frequent mistakes that companies make that compound their difficulties with OSHA, and this is where to start when thinking about how to handle a potential inspection.

First, maintain a safe workplace. It’s the right thing to do and it’s the best way to avoid problems. Retain an OSHA-certified, independent safety consultant to come in periodically and assess the workplace safety profile because every day familiarity with the workplace can cause managers to miss some potential violations.

OSHA will, upon request, send an inspector for a voluntary safety inspection. No citations or fines are assessed as a result of these inspections, but the company is obligated to fix any problems. Generally, these voluntary OSHA inspections are not a good idea. Don’t invite OSHA into the workplace, even for a free inspection; spend the extra money for a private inspector and stay off OSHA’s radar.

Second, have an aggressive safety training program, which will provide a defense if there are incidents. Some companies have a daily safety talk around the toolbox so that workers begin the day thinking about safety. Every safety meeting should be documented – what was said and who attended. This not only demonstrates a commitment to a safe working environment, but it also can show that an employee who did something unsafe, such as not wearing the proper protective clothing, did so in spite of being instructed to do so by the company. If an employee ignores a safety rule after being trained, it can make a big difference in how OSHA views an incident.

Related to training is monitoring and disciplining of employees. If employees break safety rules, it’s imperative they be formally disciplined. This shows OSHA that the company is serious about safety, has a written safety program distributed to all employees and enforces its safety requirements.

Third, don’t allow an OSHA inspector into the workplace without a senior manager or safety director – and preferably, legal counsel – present. An unaccompanied OSHA inspector will go fishing, and he will likely catch something.

Michael P. Davis is a shareholder at Chamberlain Hrdlicka in Atlanta where he maintains a construction law practice and represents a wide variety of trade contractors, prime contractors, manufacturers, owners/developers and design professionals. He has significant experience in labor and employment law, including matters involving traditional labor law and the National Labor Relations Act, OSHA, wage and hour, employment discrimination, and restrictive employment covenants. He may be reached at (404) 588-3424 or by email at michael.davis@chamberlainlaw.com.

 

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