November 19, 2013

Although the Occupational Safety and Health Act is over forty years old, few employers know how to react to the appearance of an OSHA compliance officer. As a result, many employers find themselves having to fight citations that might have been avoided with a little planning.

The first thing to keep in mind is that a state or federal compliance officer (that's a fancy word meaning inspector) is an intruder at your jobsite. The United States Supreme Court has said that a compliance officer is just like a police officer looking to get evidence of a crime. If you do not want him to come onto your jobsite, you can require him to obtain a warrant.1 And in doing so, he must convince a magistrate that he has probable cause to conduct the inspection. Though probable cause for compliance officers is not the same as probable cause for a policeman, he cannot get a warrant and consequently inspect your jobsite without a good reason.

The second thing to keep in mind is that a compliance officer does not necessarily respond to kindness. Contrary to the popular notion, inspectors do not "go easy" on employers who are cooperative and come down hard on those who don't. In fact, experience indicates that the opposite is true. The more difficult an employer makes it, the quicker the inspector leaves and goes to the next, more cooperative employer. Besides, the law requires a compliance officer to cite any violation he sees, and it is technically against the law to give an employer "a break."

With that in mind, you can begin to formulate a tough policy for dealing with OSHA (or the applicable state agency). To begin, select a management official to be responsible for safety, including responsibility for OSHA inspections. That person should be a level-headed person with the ability to say "no." In small companies, this person will normally be the "boss." In larger companies, a plant manager or safety officer would be selected.

That person should also be responsible for safety training and the development of safety programs, such as hazard communication, hearing preservation, lead exposure, fall protection, and so forth. He should get a copy of the applicable OSHA standards and study them. Copies of standards can be obtained from the Government Printing Office, OSHA, your attorney, or the local library. It's a wise investment of time and money to get a copy. It could save you thousands of dollars later.

All personnel, especially supervisors, should be told that if any government official presents himself at the shop or the jobsite, the company safety officer should be contacted. Even more importantly, they should be told that no one -- I repeat, no one -- is permitted to come into the shop or inspect the jobsite unless the safety officer says so. Most compliance officers will be willing to wait or come back later when the safety person is available. If not, let them leave to obtain a warrant. Virtually all compliance officers will accept this condition rather than run out for a warrant, which means more work.

At the risk of repeating myself, do not be intimidated by the inspector. Make him be patient. He is an intruder, and he should only be admitted on your terms. He is not your friend; even if he is, his job is to find safety and health violations, cost you money, and testify against you should you contest the citations.

If the company safety officer is present, the first thing he should do is take the compliance officer to a private area. In walking to that area, try to avoid walking through an area where work is being performed. Anything the compliance officer sees can be cited, even though the inspection has not formally begun.

Once in private, find out who the compliance officer is. Ask to see his credentials. If he does not have them, throw him out. If he does, write down his name, address, telephone number, supervisor's name, and supervisor's telephone number. Then, find out why he is there. If he does not tell you specifically -- in other words, does not say more than he is there to "inspect" -- throw him out.

If the inspector says he is there based on a complaint, ask him for a copy. If he does not have it with him, tell him to call his office to get all the information on it. Find out who filed it, what the specifics of the complaint are, and what standard the complaint would violate, if valid. If you cannot get straight answers, make the compliance officer get a warrant. At the risk of sounding like a salesman, if you are not getting straight answers, involve your attorney, preferably someone who knows a little about safety and health law.

If you do get straight answers, you should let the compliance officer inspect. But only let him inspect the area involved in the complaint. Do not let him inspect the entire jobsite; he would not be permitted to do so even with a warrant. If you are concerned that you are not in compliance, make him get a warrant and give yourself time to correct the situation. You might avoid a citation.

If the inspector says that he is there to make a general scheduled inspection, ask him how your company was selected. If he cannot give you a straight answer, make him get a warrant for this comprehensive inspection. The same advice applies if you fear that you are not in compliance.

A general scheduled inspection is a "wall-to-wall" inspection that normally results from random selection. If OSHA shows that your company was selected properly, it can get a warrant. This is one area where it is easier for OSHA to get a warrant than the police.

If the inspection is an accident inspection, cooperation may be in order. There is no doubt that OSHA will be able to get a warrant. That does not mean, however, that you should not limit the inspection to the circumstances surrounding the accident. There is no need to allow the compliance officer to inspect your entire worksite.

Although it rarely happens, a compliance officer may have a warrant the first time he visits. Clearly tell him you object to the inspection, and then limit his inspection to the letter of the warrant. If he tries to deviate from it, tell him you would like to call the magistrate or judge for a clarification.

If the inspection actually does take place, the company safety officer should limit the inspection as much as possible. The more difficult you make it, the faster the compliance officer will want to move on. You select the routes; do not let him wander. The company representative should carry a note pad and a camera, taking photographs when the compliance officer does, and writing down what the compliance officer says. One warning,however. Do not write anything down that could be incriminating; OSHA may be entitled at a later date to see your notes.

If the inspector asks to talk to employees, insist on being present. If he wants private interviews, you can require a warrant. You do not, however, have to disrupt your work for these interviews. It is also a good idea to let employees know ahead of time that they do not have to talk to OSHA.

During an inspection, it is important not to volunteer any information that could be used against the company. Never admit a violation; at most, say you will review it. Do not help OSHA prove its case against you.

If a general contractor permits an inspection, still make it clear to the compliance officer that you object. This objection may exclude evidence later, though there is no guarantee that the evidence won't be admitted to prove a violation. For that reason, you should discuss with the general contractor in great detail how you want him to respond to the appearance of a compliance officer. Try to get the general contractor to take the same hard line that your company intends to take.

At the closing conference to discuss the result of the inspection, take comprehensive notes. Question the inspector extensively about the basis for any citation he says might issue. Ask him the applicable standard. In addition, ask him to explain in detail any proposed abatement.

In sum, you can control an OSHA inspection more than you realize. If you do not, you may very well find yourself defending your safety practices before an administrative law judge or hearing officer. And one final word.

An employer should consider contesting every citation, no matter how small the penalty. First, if you get cited for the same violation later, the penalty will be much larger, perhaps thousands of dollars. Second, citations become part of your permanent record with the agency to be used against you in later proceedings. Third, abatement costs can be very expensive, even though there is no fine. Think it through before you accept an OSHA citation or settlement.

REMINDER

IT IS A FEDERAL CRIMINAL OFFENSE TO KILL "ANY

OFFICER OR EMPLOYEE . . . OF THE DEPARTMENT OF

LABOR ASSIGNED TO PERFORM INVESTIGATIVE,

INSPECTION OR LAW ENFORCEMENT FUNCTIONS, WHILE

ENGAGED IN THE PERFORMANCE OF HIS OFFICIAL DUTIES."

1 - Unfortunately, you may not have control over the jobsite. In those cases, it is the general contractor who can refuse access to the compliance officer. What happens when the general contractor does not have the back bone to refuse access is discussed below.

Author:
Frank L. Kollman,  Kollman & Saucier, P.A.

• Partner of Kollman & Saucier, P.A.
• Established management labor law attorney and litigator
• Lectures nationally on labor law, employment discrimination, and occupational safety and health
• Writer of Understanding Employee Regulations (American Subcontractors Association)
• J.D. degree, cum laude, Syracuse University College of Law; graduate, The Johns Hopkins University