CONFRONTING MYTHS OF THE OSHA INSPECTION PROCESS SAFETY WORKS EXPO 2005 October 7, 2005

1. CONFRONTING MYTHS OF THE OSHA INSPECTION PROCESSSAFETY WORKS EXPO 2005October 7, 2005 Charles P. Keller, Esq. Snell & Wilmer, L.L.P. (602) 382-6265ckeller@swlaw.com www.oshalawyer.net By: By: Mr. Mark Norton Assistant Director, Industrial Commission of Arizona Division of Occupational Safety & Health Norton.mark@dol.gov

2. 1. “I cannot be cited unless my own employees were exposed to the hazard.” • May be true—single employer site. • Not true—multiple employer site. Did you create or control a hazard to which other employer’s employees were exposed? Controlling employer—has a separate and distinct duty to ensure safety of all employer’s employees. • Employer-employee relationship • Sole Proprietor-employee of corporation

3. 2. “OSHA came to my jobsite and they shut it down.” • Imminent Danger posting • I have never had an ADOSH inspection result in a forced closing of business operations.

4. 3. “Any evidence or conditions observed by a compliance officer prior to the beginning of an inspection is inadmissible” • Not true. • CO needs to obtain consent to conduct inspection of a jobsite—implied or expressed (multiple employer site).

5. • Exceptions to consent are plain view, areas open to the public and exigent circumstance. • Many hazards are observed from offsite positions, i.e., scaffold, excavation, falls. • In the event of a refusal warrant can be obtained.

6. 4. “ADOSH can just drive up and inspect my jobsite/plant at any time.” • Need legitimate reasons • Emphasis programs • The CO must have probable cause. Probable cause comes in many forms: Imminent danger FAT/CAT Complaints Targeted inspections Planned, programmed inspections

7. 5. “OSHA cannot interview my employees privately, they are my employees. I have a right to be present.” • Not true. • A.R.S. § 23-408, ADOSH has a right to question employees. • Laborers and non-management employees can be interviewed privately. Reasonable time Can have union representation present Have right to have interpreter

8. • Management employees have the right to be accompanied by a representative. What is a management employee? • Union can request separate opening and closings as well. • Employer interference • Representative cannot interfere with interview process. •Interview process may include written statements.

9. 6. “OSHA cannot issue a citation unless they see my employees exposed.” • Observed, Unobserved & Potential exposure. • Evidence of non-compliant condition can came in many forms.

10. “The only reason OSHA is issuing this fine is to justify their existence—you know they are a self-funded group.” • Not true. • The ADOSH fines that are levied and collected are deposited in the State’s general fund. • ADOSH can use no money collected as a result of enforcement action.

11. • The entire Industrial Commission of Arizona is funded through a maximum three percent (3%) surcharge of workers’ compensation premiums paid by employers. • ADOSH also receives funding from Federal sources, as well.