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Preparing for and Managing an OSHA Inspection November 2, 2012 Eric J. Conn Head of the OSHA Practice Group at Epstein Becker & Green, P.C. Agenda. Why Employers Must Prepare Now for an OSHA Inspection OSHA Enforcement Initiatives and Trends

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Agenda

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  1. Preparing for and Managing an OSHA InspectionNovember 2, 2012Eric J. ConnHead of the OSHA Practice Group atEpstein Becker & Green, P.C.

  2. Agenda • Why Employers Must Prepare Now for an OSHA Inspection • OSHA Enforcement Initiatives and Trends • Preparing in Advance for an OSHA Inspection • Managing an On-Going OSHA Inspection

  3. Why Employers Must Prepare Now for an OSHA Inspection

  4. Why Prepare Now for an Inspection • Significant increase in enforcement • High costs of inspections, enforcement and abatement • Minimize exposure to citations • Cast workplace in best light • Improve safety • Too late to prepareonce OSHA arrives

  5. Increased Enforcement • 100+ new CSHOs • More citations • Increased penalties • More criminal cases • Spike in significant/egregious cases • New enforcement initiatives • Added special emphasis programs • Expanded scope beyond single workplace

  6. Increased Enforcement Field Operations Manual amended: • Doubled minimum penalties • Look back for Repeats increased from 3 to 5 years • Halved penaltyreduction for size • Look back for clean history reduction increased from 3 to 5 years • Maximum 30% penalty reduction at informal settlement conferences

  7. Follow-up Inspections/Repeat Violations • OSHA historically: • Treated workplacesas individual, independent establishments • Limited its reviewof employers’ OSHA records to 3 years • Reactive Philosophy (less likely to revisit workplaces within a few years) • OSHA now: • Treats workplaces in a corporate family as 1 workplace • Looks back 5 years at employers’ OSHA enforcement records • Proactive Philosophy (hand selects past violators as targets for inspection)

  8. Proactive Targeting Philosophy • Increased use of National and Local Emphasis Programs

  9. Proactive Targeting Philosophy

  10. Increase in Repeat Violations from 2006 to 2010

  11. Increase in Penalties from2006 - 2011

  12. Preparing for and Managing an OSHA Inspection

  13. Goals of the Inspection

  14. The OSHA Inspection Sec. 8(a) of the OSH Act: “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.”

  15. OSHA’s Inspection Rights • Right to inspect workplaces (with probable cause/violations in plain view) • No Advance Notice • Right to inspect records • Right to collect physical evidence • Right to conduct interviews

  16. Employees’ Inspection Rights • Right to file a Complaint • Right not to be discriminated and retaliated against • Participation Rights: • Opening Conference • Walkaround • Private interviews • Closing Conference • Informal Settlement Conference • Access to inspection records

  17. Employer’s Inspection Rights • “Reasonable Inspection” at “Reasonable Times” • Demand a warrant • Hold Opening Conference • Receive a copy of the formal Complaint • Accompany CSHOduring Walkaround • Participate in Management Interviews • Protect Trade Secret/CBI • Insist on a Closing Conference • Challenge Citations

  18. Pre-Inspection Checklist • Designate Inspection Team - Spokesperson - Walkaround Representative - Escort - Union/Contractor Liaison - Photographer - Document Coordinator - Sampler - Interview Representative • Train Inspection Team on: • Who to contact • Inspection rights of OSHA, employers, and employees • OSHA Standards • Controlling information flow

  19. Pre-Inspection Checklist • Designate and audit walkaround routes • Provide inspection tools: • Camera/Video Camera • Contact List • Document Control Log • Sampling Tools • Copy of OSHA’s FOM • Document Labels • Choice of Rep. Forms • Cover Sheets • Determine warrant/consent philosophy

  20. Warrant or Consent? • 4th Am.: “The right of the people to be secure in their houses, papers and effects, against unreasonable searches and seizures shall not be violated and no warrant shall issue but upon probable cause….” Benefits of Warrant: Risks of Warrant: • Restraint on OSHA - Potential retaliation • Passage of time - Lose control of inspection Benefits of Consent: Risks of Consent: • Appear cooperative - Inspection scope may expand • Easier to manage • Minimize business disruption Practitioner’s Tip: Waive the warrant requirement and consent to an inspection, but only after negotiating an acceptable scope.

  21. Stages of OSHA Inspection

  22. Opening Conference • CSHO arrives and displays credentials • Resolve warrant issue • Employee reps. mayparticipate • CSHO explain purpose of inspection • CSHO discuss scope and duration • CSHO requests documents/information

  23. Opening Conference • Insist on an Opening Conference • Designate in advance the location and who will participate in Opening Conference • Ask CHSO the purpose & scope (if not volunteered) • Prepare list of individuals to notify • Introduce management and inspection teams • Explain your document production protocol • Set up procedure for arranging employee interviews • Arrange for daily close-out meetings • Arrange to screen photo/film for trade secret or CBI

  24. Document Production • Insist on written requests for documents: • Except: OSHA 300 Logs/300A Forms • Voluntary vs. Subpoena • Do not create new documents • Do not leave documents in plain sight • Do not volunteer information • Except: Without more information, OSHA will misunderstand a fact to your detriment • Responsive, privileged or trade secret/confidential business information

  25. Document Production • Keep a copy of all documents produced • Maintain a Document Control Log

  26. Walkaround Inspection • Management representativeshould accompany CSHO • Employee representativepermitted to accompany • Act professionally yetprotect your rights • Take side-by-sidephotos or videos • Fix hazards identifiedby CSHO ASAP but donot admit violations • Require CSHO to follow safety rules

  27. Walkaround Inspection • Escort OSHA at all times • Ensure safety of CSHO • Gather information about focus of inspection • Control flow of information • Ask for advance notice prior to sampling • Take detailed notes • Hold brief meeting at endof each day • Ask about concerns • Ask about interviews andtasks for next visit • Consider proactive presentations Inspection Findings

  28. OSHA Inspection Interviews • Arrange through interview procedure • Pre-select office or conference room • Stop and Talk vs. Interview • 5 Minute Rule • OSHA must be reasonable • Voluntary vs. Subpoena

  29. Hourly Employee Interviews • OSHA demands privacyfor hourly employee • FOM • Union Representation • Right to privateinterview belongs to employee • “Choice of Representative” Form • Do not coerce or intimidate employees • Do not discriminate against employees

  30. Management Interviews • Supervisor’s knowledge imputed to employer • No impromptu management interviews • Participate in all management interviews • Right belongs to employer, not the witness • Prepare all management witnesses

  31. OSHA Inspection Interviews

  32. Closing Conference • Held at close of inspection • May occur weeks after on-site inspection • CSHO explains post-citation rights • CSHO communicates findings: • Standards allegedly violated • Bases for alleged violations • Possible abatement and abatement dates • Usually will not share classification or penalty

  33. Closing Conference • Take detailed notes • Correct errors andmisimpressions • Report alleged violations already corrected • Request time to offer supplemental information and documents • Do not make abatement and/or abatement date promises • Ask CSHO about classifications and penalties

  34. Eric J. Conn • econn@ebglaw.com • (202) 861-5335 • ERIC J. CONN is Head of the OSHA Practice Group at Epstein Becker & Green, where his practice focuses on all aspects of occupational safety & health law: • Represents employers in inspections, investigations & enforcement actions involving OSHA, CSB, MSHA, & EPA • Responds to and manages investigations of catastrophic industrial, construction, and manufacturing workplace accidents, including explosions and chemical releases • Handles all aspects of OSHA litigation, including appeals of citations and negotiating settlements that minimize the effect of enforcement on civil actions • Conducts safety training & compliance counseling

  35. QUESTIONS?

  36. Preparing for and Managing an OSHA InspectionNovember 2, 2012Eric J. ConnHead of the OSHA Practice Group atEpstein Becker & Green, P.C.

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