OSHA Update—Tips for Surviving OSHA Inspections—Part III

28 June 2016 Labor & Employment Law Perspectives Blog
Authors: Taylor Eric White

As we noted in the previous weeks on the Work Knowledge Blog, employers may see a marked increase in OSHA inspections in the coming months due to the agency’s focus on PSM related issues.  This focus includes proposed revisions to OSHA’s appropriations language to allow for PSM audits of small establishments and various contemplated changes to the PSM standard itself.  These proposed changes will be especially significant to employers when the civil penalty increases for OSHA violations take effect in August of this year.

In the previous two parts in this series, we have outlined a couple of tips to help employers prepare themselves and their workforce for safe workplace operations and, in doing so, contemporaneously prepare for OSHA inspections.  We will now turn to handling the OSHA inspection itself.  The first step is for an employer to know what rights it can assert during an OSHA inspection.

Employers have several rights, including, but certainly not limited to:

Right to Understand the Purpose and Scope of the Inspection.  While OSHA compliance officers will generally conduct an opening conference before reviewing records, interviewing employees and managers, or touring the facility, they may only vaguely mention what the inspection’s purpose and scope is.  Employers should therefore ask appropriate questions, so they know what to expect during the process.  This will help employers devote appropriate resources to gathering and providing the most relevant documents and information.

Right for a Company Representative and Attorney to Be Present for OSHA Interviews with Managers.  Employers should exercise this right as a matter of course in light of OSHA’s upcoming increase in penalties and cooperation initiative with the Department of Justice for increased criminal referrals.  That is, managers, as agents for the employer, may bind the employer through their admissions (or omissions).  It is therefore essential for an employer to have appropriate business and legal representation present.

Right for a Company Representative and Attorney to Accompany the OSHA Compliance Officer during a Facility Tour.  Section 8(e) of the OSH Act expressly gives employers the right to have representation during a facility tour for the express “purpose of aiding such inspection.”  29 U.S.C. § 657(e).  Employers will benefit later from designating a manager at each facility now, before OSHA knocks on the door, to accompany the OSHA compliance officer during a facility tour.  The chosen manager should be knowledgeable about the processes, the equipment, and the related safety features and procedures.  But as with management interviews discussed above, an employer should strongly consider having an attorney present as well, given the manager’s ability to bind the employer through his or her admissions or omissions.  See generally 29 U.S.C. § 657(a) (stating that entry to a workplace and an investigation of the same is authorized at “reasonable times . . . and within reasonable limits and in a reasonable manner . . . .”).

Right to Document Evidence OSHA Collects during the Inspection.  Employers can and should document everything the OSHA compliance officer photographs during the facility tour.  This includes photographing the same equipment photographed by OSHA, measuring or otherwise documenting other physical evidence collected by OSHA, and/or possibly conducting independent measurements.

Right to Protect Trade Secrets.  Section 15 of the OSH Act recognizes that employers may have to provide access to or copies of trade secrets to OSHA compliance officers during inspections, but the Act also states that such information “shall be considered confidential.”  29 U.S.C. § 664.  The employer should identify documents that contain trade secrets when they are produced and inform the OSHA compliance officer which areas of the facility may contain trade secrets at the commencement of the facility tour.  See 29 C.F.R. § 1903.9(c).  The OSHA compliance officer will then label all such information produced and collected as a “confidential-trade secret” and will not disclose it, except in accordance with Section 15.

Recap.  In summary of the tips we have outlined in the previous weeks, employers should:

(1) Review, revise, and update safety policies, procedures, and safety information.

(2) Be proactive in training and coaching employees in workplace safety.

(3) Know what rights they can assert during OSHA inspections.

There are certainly other rights employers may assert in a variety of circumstances, so employers should consult with an attorney knowledgeable about the OSHA inspection, citation, and litigation process with any particular questions they may have.

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