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OSHA Watch

By Eric J. Conn
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Eric J. Conn

OSHA Watch by Eric J. Conn

Eric J. Conn is a founding partner of Conn Maciel Carey and Chair of the firm’s national OSHA • Workplace Safety Group. His practice focuses exclusively on issues involving occupational safety and health law. OSHA Watch offers general information but should not be construed as legal advice. Employers are always advised to seek appropriate counsel for individual issues. Contact Eric.

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Thursday, January 30, 2014

Know Your Rights When OSHA Calls

I was recently asked an interesting question:

“Employers often are told to know and exercise their rights during an OSHA inspection. What exactly are those rights?”

While it may not feel like it when inspectors are at the door, employers have many rights—before, during and after OSHA inspections.

Before: Grounds for Inspection

Before an inspection begins, employers have a right under the Fourth Amendment to the U.S. Constitution to be free in their workplaces (just as they are in their homes) from unreasonable searches and seizures.

That includes by OSHA.

© iStock / Olivier Lantzendörffer

Employers have rights before, during and after an OSHA inspection.

What that means is, OSHA may not inspect a workplace unless the agency has administrative probable cause (a lower burden than criminal probable cause) to believe that a violative condition exists.

Employers have a right to demand an inspection warrant that establishes OSHA’s probable cause. However, we rarely advise clients to do so. Rather, we try to negotiate with OSHA over a reasonable scope of the inspection and then consent to it.

Three’s a Crowd

Another right employers should consider asserting is the right to exclude non-employee third parties (such as a union representative at a non-union workplace) from the inspection process.

In a recent Interpretation Letter of the regulation 29 C.F.R. 1903.8(c) covering who may participate in walk-around inspections, OSHA indicated that employees at a non-union worksite may authorize a third party affiliated with a union or community organization to act as the employee's representative during an inspection.

© Epstein Becker Green

This guide may help employers prepare for the process.

However, the standard’s plain language makes it clear that such third-party involvement is not permitted under the law and that employers may exclude third parties from the inspection by demanding and challenging a warrant under those circumstances.

If confronted with such a situation, employers should consult with legal counsel before allowing any non-employee third party to participate. There are several critical implications of this decision. (Learn more.)

Setting Limits: The Opening Conference

Employers also have the right to an opening conference before the inspection. This is the most important stage of the inspection, because it is when employers can:

  • Negotiate to narrow the scope of the inspection;
  • Ask questions about the purpose of and probable cause justifying the inspection; and
  • Establish ground rules about how the inspection may proceed, from the collection of documents (for example, through written requests only), to interviews (scheduled in advance) and physical access to the facility (only with a management escort).

If the inspection was prompted by a complaint from a current or former employee, employers have a right to a copy of the complaint before consenting to the inspection.

During: Interviews and Evdence

Employers also have rights during the inspection.

Marine painter/blaster
© iStock / tolgabayraktar

Employee interviews during an OSHA inspection are binding on the company. Employers have the right to be present when binding statements are taken.

They have the right to accompany the compliance officer at all times and to take side-by-side photographs or other physical evidence that OSHA collects during the walkaround. 

Another important right relates to management interviews.  Interview statements by management representatives bind the company, and the OSH Act gives employers the right to be present when binding statements are taken.

Employers therefore have a right to be present at, and participate in, interviews of management witnesses—regardless of whether the witness wants them there.

After: Appeals and Confidentiality

After inspections, employers have the critical right to contest OSHA’s citations, which are nothing more than allegations. 

InspectionRights
© Epstein Becker Green

OSHA is not the final word. The Occupational Safety & Health Review Commission is an independent agency that hears challenges to OSHA citations. 

Something else to watch for: Plaintiffs’ attorneys, union organizers, competitors or other third parties may try to obtain your inspection file under the Freedom of Information Act. Employers have a right to protect their trade secrets and confidential business information from such disclosure.

You do need to provide that information during the inspection. But if you identify business information as confidential, OSHA will either reject a later FOIA request or at least notify you about it and ask you to justify your claim.

Being Reasonable

Above all, employers have a general right that OSHA conduct its inspections reasonably. Sec. 8(a) of the OSH Act provides:

“OSHA may inspect at reasonable times any workplace during regular working hours and at other reasonable times within such reasonable limits and in a reasonable manner.”

ConstructionWorkersonLaptop
© iStock / shotbydave

If you wish to identify and protect business information as confidential, you must notify OSHA during the inspection.

It is this requirement that gives employers the right to push back on overly burdensome or disruptive inspection requests, such as employee interviews right on the shop floor without notice, or demands for voluminous documents and information. 

This section allows employers, for example, to request that interviews be scheduled and moved to an office or to bargain for more limited document productions.

Learn more with this OSHA Inspection FAQ series.

 




More items for Health & Safety
   

Tagged categories: Epstein Becker Green; Health and safety; Laws and litigation; OSHA

Comment from Billy Russell, (1/31/2014, 4:53 AM)

Invite them to come audit open the door, 5 Star VPP lead the way, Safety Audit is not a Bad thing, Be Proactive instead of so defensive, QP 1,2,3 contractors have the documentation on hand as a matter of the certification Procedures, Being Proactive towards Safety saves lives, open the Book have nothing to Hide we can do a Better Job of Keeping people alive and the environment Protected. If you are serious about Safety, have Done the right thing, we know what Documents, Training, closed confinement Procedures, C-3 procedures, hazardous waste storage , we are supposed to "maintain" We need to open the Door not, hiding behind a way to Duck an audit we will see Less articles titled "Worker Dead". This Sends The Wrong message. Be your Brothers Keeper, do the right thing OPEN THE DOOR ON SAFETY, Transparency, not paranoia watching out for plaintiffs. Are you Doing the Right thing ? open the door, You have something to hide not following QP procedures on your sight, Then all the above instructions make sense.


Comment from Tony Rangus, (1/31/2014, 10:33 AM)

What rights do the poor employees have? There are far too many deaths, injuries, and detrimental health results to workers in the United States caused by companies who don't care. Look around at how many companies have multiple OSHA fines etc., but continue to put employee safety way down the radar screen. We need to give OSHA much bigger teeth to take big bites out of companies who don't give a DAMN! OSHA should be able to shut down folks who kill & maim employees because safety is at the bottom rung of the company ladder. Don't be fooled by articles like this one. There are a lot of companies where profit is the only business plan, and employees are expendable.


Comment from M. Halliwell, (1/31/2014, 11:04 AM)

Tony, I understand the sentiment and agree that OSHA should have bigger teeth...but just like the police, there have to be checks and balances to protect companies from anything malicious (vindictive ex-employees or over-zealous inspectors come to mind). I fully agree that recalcitrant employers need to be brought on board when it comes to safety or shut down and not allowed to simply "hang a new shingle." I also think that there needs to be some due process and that the Review Commission needs to stop replacing the twitch with a wet noodle. I hope the system will change....but I'm not holding my breath whilst waiting.


Comment from Pete Engelbert, (2/1/2014, 1:17 AM)

You are very correct about the checks and balances. The nature of regulatory enforcement is to grab low hanging fruit. That means very visible companies (who participate and are pro-active) get lots of inspections. I have seen this for many years, yet the smaller guys slide under the radar. These smaller ones are the worst of the worst. To keep en even keel, business' must flex their rights. I have been advocating demanding a warrant for many years to my clients. The result is a 94% total dismissal rate of OSHA citations.


Comment from Billy Russell, (2/3/2014, 5:57 AM)

98% of evidence found without a warrant is dismissed in court, Drug Dealers Demand to see the warrant and have your attorneys present, ask to have this done during Regular Business hours...... Flexing your Rights regarding an OSHA Audit is a piss poor excuse, Calling for an Audit yourself will not result in citations, VPP (Dahhhhh) Elevated Water Storage Tanks, Bridge Projects seriously need outside oversight to keep workers & environment Safe, The amount of live lost, and Grit with Little red Paint chips floating down river during Blasting is Unacceptable, The Industry is obviously not going to regulate themselves Politics has Taken the place of common sense.


Comment from Billy Russell, (2/3/2014, 11:13 AM)

Pete, advertising your services of accomplishing a 94% total dismissal rate of Osha Citations, I was surprised to learn they actually give Citations for paper cuts, and changing Ink cartridges in printers, Out in the field were the real job is we welcome any Audit any Time, Because we are pro active, Training is documented and signed before a new employee ever leaves your office, PPE, respirator fit Test, Blood work before they ever set foot on site, Tool box meeting actually done daily signed and dated, not made up while waiting for that warrant, or made aware a week in advance that QP Auditor is coming on Thursday. The will not write you a citation if you invite them in to Audit your office proper paper clip procedures can also be documented in Copy machine safety meeting, Smiling Pete.


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