The Dos & Don’ts of an OSHA Inspection

1. ASSE Chapter Meeting Presented by: Tressi L. Cordaro | Washington D.C. February 5, 2014 The Dos & Don’ts of an OSHA Inspection

2. Overview • Importance of Being Prepared • Before OSHA Arrives • During an OSHA Inspection • After OSHA Leaves • Informal Conference • Contesting Citation

3. Importance of Being Prepared • Goals to effectively manage an OSHA investigation • Minimize liability and disruption to production • Present the facility in the best light possible • Maintain positive employee relations • Preserve the relationship with local OSHA office

4. Importance of Being Prepared • Administrative Liability • Citation penalties: • Serious – Maximum $7,000 • Willful/Repeat – Maximum $70,000 • Failure to Abate – Maximum of $7,000 Each Day • Egregious – Per Instance Violation

5. Importance of Being Prepared • What is at stake? • Civil penalties • Abatement costs • Criminal conviction/penalties • Misdemeanor with a maximum of 6 months imprisonment and maximum of $250,000 for individuals and $500,000 for the organization • Civil liability • Can be used as evidence of negligence • Employee relations

6. Importance of Being Prepared • Negative Publicity • OSHA Press releases • “Regulation by shaming” • Presumed guilty • Creates impression of dangerous place to work • Workers Compensation Costs • In some states citations can increase the award by 100 percent.

7. Importance of Being Prepared • Severe Violator Enforcement Program • Certain criteria must be met in order to be placed into the SVEP. • OSHA can inspect all worksites simultaneously or over several months. • You can litigate and have qualifying criterion withdrawn either at trial or through settlement negotiations.

8. Before OSHA Arrives • Assess Hazards, Prepare Plan, and Train • Assess hazards (including review of past injuries and illnesses, and inspections) and make an inventory • Make a plant-wide safety plan with input from top management, front-line management, and hourly employees • Train everyone; then follow the plan

9. Before OSHA Arrives • Consider whether or when you will require a warrant before permitting entry • How will you deal with employee representatives • Determine who is to be notified when OSHA comes • Determine who will be the contact person with OSHA on all aspects of the investigation

10. Three Phases of the Inspection Opening Conference Walk-Around Closing Conference

11. When OSHA ArrivesOpening Conference • Review credentials of compliance officer • Learn the purpose of the investigation • Request copy of complaint if one was made • Contact appropriate company official and/or counsel

12. When OSHA ArrivesOpening Conference • Why is OSHA investigating? • Imminent danger • Catastrophic and fatal accidents • Eight-hour reporting requirement (fatality or hospitalization of three or more employees) • Employee or other complaint • Programmed (SST, NEP, etc.) • Re-inspection

13. Opening Conference • You Should Set Reasonable Ground Rules: • Logistics plan for site inspection • Escort • Employee interviews • Document production • Photographs/Videotaping • Sampling • Walk-around • OSHA briefings

14. Logistics Plan • You Should: • Designate OSHA entry for inspection • Designate OSHA location for inspection • Designate location for employee interviews • Require OSHA to stay in the designated areas until request for walk-around

15. Escort • You Should: • Escort OSHA at all times • This prevents the compliance officer from getting hurt. • This allows you to gather information about the direction/focus of the inspection.

16. Walk-Around 8(e) of the OSH Act Authorizes the Employer and the Exclusive Bargaining Representative to Accompany OSHA During the Walk-Around.

17. Walk-Around • You Should: • Require OSHA to provide reasonable notice for the walk-around • Determine route to area needed to be inspected • Audit route before OSHA inspects

18. Walk-Around • You Should: • Require OSHA to stay in designated route • Take notes during walk-around • Debrief walk-around representative

19. During an Inspection: Management Interviews • Statements by managers/supervisors are binding on the company • Entitled to management representative or attorney • Typical ground rules • No tape or video recording • No signing of statements • Prepare managers who will be questioned • Lying to an inspector is a criminal offense and OSHA will prosecute

20. During an Inspection: Employee Interviews • OSHA has the right to “question privately” any employee • No rule against the employer interviewing hourly employee witnesses, even on work time • Interviews are voluntary, unless OSHA issues subpoena • Inform employees that OSHA has no right to tape-record or video-tape their interview • Inform employees that OSHA has no right to get a signed statement • Inform employees that they can inform OSHA that they waive confidentiality regarding their statements

21. Employee Interviews • But don’t encourage workers to not cooperate with OSHA • Tell employees nothing they tell OSHA will result in any adverse job changes • Tell the employees to (1) tell the truth, (2) provide facts based on first-hand knowledge, (3) do not guess or speculate, (4) listen carefully to the question, and (5) answer only questions asked

22. During an Inspection: Document Requests • Document requests submitted to a single source, in writing • Is the document responsive to OSHA’s written request? • Is the document privileged? • Mark documents as Trade Secret/Business Confidential • Is the request reasonable? • Maintain separate copy of all documents provided • If written, no question what was sought by OSHA • Do not allow compliance officer to rifle through documents

23. Document Production • You Should: • Review Documents Before Producing • This ensures responses are not over or under-inclusive. • Preserves confidentiality of Trade Secrets. • Stamp Documents Being Produced As Trade Secret to Preserve Confidentiality • OSHA is required to maintain confidentiality of Trade Secrets under Section 15 of the OSH Act. • Bates stamp documents being produced

24. Photographs, Videotaping and Sampling • You Should: • Take shadow photographs and videotape • Require 24 hours notice prior to any industrial hygiene sampling • This allows time to arrange parallel sampling • This ensures proper methodology for sampling

25. During an Inspection: Closing Conference • Goal – Learn as much as you can • What citations will OSHA issue? • How will they be characterized? • What abatement does OSHA expect? • How is the abatement to be accomplished? • Do not argue and avoid admissions

26. After an Inspection • Employer has15 working days from receipt of citations to file notice of contest • The 15-working-day period cannot be extended • Failure to file a timely notice of contest effectively ends your ability to challenge any aspect of the citations or proposed penalties • Right to Informal Conference with Area Director during the 15-day period

27. After NOC • Case is sent to the Review Commission • Assigned to an ALJ (Administrative Law Judge) • Can still attempt to settle • Hearing on the merits and a decision issued by the ALJ • Appeal rights to a three panel Review Commission (all political appointees)