05/05/2014

Surviving An OSHA Inspection

Legally Speaking - Bob Dunlevey

SURVIVING AN OSHA INSPECTION

            If you have not felt the brunt of an OSHA inspection recently, chances are you will do so soon. Inspection efforts are escalating! Our firm has been involved in many of them. Often it is a disgruntled employee who brings in OSHA - not the “random” inspection. Also, accidents which find their way into newscasts and newspapers frequently trigger inspections as well. In fact, most police and fire departments now call OSHA while they are on the scene of a job related accident. When OSHA appears, the employer’s initial response will determine its success in avoiding and defending citations. OSHA's first visit after an accident is the most important event in the life of the investigation. Don't think that you have "nothing to hide." Procedures should be in place for dealing with an inspection. With planning, employers can manage the inspection effectively to minimize work disruptions, present the employer and its 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. Don't be in a hurry to let OSHA into your facility. Some larger clients of the firm have made Compliance Officers ("C.O.") wait as much as two hours for us to arrive – but this is at the outer limits of a reasonable time frame.

When OSHA appears, you have two options - permit the inspection or refuse it. If the inspection is permitted, strict parameters need be set in order to keep the compliance officer from having the opportunity to engage in a fishing expedition for additional violations. Whether to grant access frequently depends upon 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 should be permitted to inspect, 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 which may be in plain sight as the C.O. moves between the entrance to the work place and the area of the inspection. Anything seen is fair game! It is so important to limit the compliance officer's exposure that it is not unusual for an employer to cause the C.O. to walk outside and around the facility and therefore enter by a back or side door immediately adjacent to the area of inspection.

            An employer has the right to deny access until a search warrant is obtained. Some benefits exist in requiring a warrant - it identifies the scope of the inspection, the time limitations for performing the inspection and gives the employer time to get its house in order before the compliance officer returns with the Court order. Requesting the warrant is most advised, if there are numerous items listed on the complaint or a “wall-to-wall” inspection is intended. Historically, compliance officers are not more zealous about the inspection, when required to obtain a warrant – contrary to what you may think.

            Well before OSHA appears, you should establish a protocol for an inspection and designate a team which will be the only individuals interfacing with OSHA. One individual should be designated to keep tight control over the entire process – preferably someone who is not "over talkative."

            Stick with the following hints and avoid being overly cooperative or overly communicative (a high level of cooperation won't do anything to mitigate your exposure to liability contrary to what you have heard):

• Designate one safety knowledgeable manager to interface with OSHA now and in anticipation of future visits.

• Consider whether to immediately employ an experienced safety consultant or OSHA attorney to handle the initial inspection and the balance of the matter so as to keep you isolated from being exposed to the C.O. and saying and doing the wrong things. OSHA will wait until your representative arrives, so don't be in a hurry!

• Review C.O.’s credentials and obtain full name and office address.

• Determine if the inspection is caused by complaint, is random or post-accident.

• Inquire as to the scope of the inspection (specific piece of equipment, area or wall-to-wall) and get a copy of the complaint at the outset and confine the inspection to the items in the complaint.

• If wall-to-wall inspection, consider requiring search warrant.

• If narrow inspection, reach agreement as to approach for inspection and confine the scope of inspection.

• Walk with C.O. (elbow to elbow) through 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 – don't guess! – even if you think you know.

• Take pictures of anything OSHA takes pictures of from the same angle and at the same time.

• Provide no unsolicited information and permit no one else to do so.

• Don't provide documentation to OSHA until you and your safety experts have thoroughly reviewed the documentation – consider whether the information can be provided in a form that states the company's position in the most positive light.

• Take minutes/notes regarding everything C.O. does and says, including those to whom he speaks (he has the right to interview employees outside of your presence but you may be present when supervisors are interviewed). Be careful what you write. It is discoverable.

• If C.O. has a video recorder, be cautious that, while it may be pointed to the ground, it is recording audio (a favorite trick).

• Don’t 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 events which 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 should always be present and ask for a copy of any written statement taken immediately upon conclusion of the interview – don't let the supervisor sign the statement until you are sure it properly states the testimony of the supervisor.

• Limit a C.O.'s conversation with employees at their work stations and don't permit the employees to group themselves around the C.O. 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 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), likelihood of future violations and the impact on other possible collateral litigation. An informal settlement conference is available at OSHA's offices but seldom beneficial.

Remember, that almost always a company can receive a substantial reduction in the monetary penalty imposed but the real consideration is whether by settling the case you are agreeing to change your methods of operation in some fashion which will, at least, be expensive or, at most, be totally impractical and substantially impede effective and economic production. Don't measure the success of the outcome of the investigation by the number of dollars that the penalty has been reduced, but instead by how the agreed to abatement efforts do not impede your normal operations. Also, other types of civil court actions and administrative proceedings may arise out of the accident and OSHA's documentation will be discoverable.

            OSHA’s enforcement activities have changed dramatically in the recent years and your approach to dealing with the agency needs to be reconsidered, if you are to survive an inspection. Few attorneys and consultants are adequately equipped to deal with safety issues, especially when there are serious accidents. Take the time now to consider how you will approach an inspection before your day comes.

            For further information utilize your Legal Services Plan and contact Bob Dunlevey, Dunlevey, Mahan & Furry at (937) 223-6003.