OSHA Update—Tips for Surviving OSHA Inspections—Part IV

05 July 2016 Labor & Employment Law Perspectives Blog

Over the last several weeks on the Work Knowledge Blog, we have outlined tips for employers to ready themselves for a potential influx of OSHA inspections.  OSHA inspections are often time-intensive and nerve-racking.  And they are mostly unexpected, so an ill-prepared employer may feel an intense pressure upon the beginning of an OSHA inspection.  That intensity may be markedly increased if the employer needlessly (i.e., without a legal right or other lawful justification) fails to cooperate with the OSHA compliance officer during the inspection.  Indeed, an unjustified failure to cooperate may well lead to a referral to a federal prosecutor for obstruction of justice.

This does not mean, however, that employers should not defend themselves and protect their rights.  So the fourth tip in this series is for an employer to be (cautiously) cooperative with OSHA compliance officers.

With that in mind, the following are examples of cautious cooperation:

Consider Whether to Request or Waive the Right to a Warrant Before an Inspection.  With certain exceptions (e.g., during emergencies, with employer waiver and consent, and in cases of openly viewed workplaces), employers may refuse entry to an OSHA compliance officer who does not have a proper and effective warrant to enter the premises.  Whether this is advisable depends on the situation and the employer, so employers should consult with an attorney to develop a strategy in this regard.  This is especially true with the new cooperation initiative between the Department of Justice and Department of Labor on criminal referrals for workplace safety violations.

Request and Verify Appropriate Credentials from the OSHA Compliance Officer(s).  Consider the following illustration: a person would not likely open his or her home to someone without official identification simply because he introduced himself as a fireman and stated he needed to make sure the home was free from fire hazards.  Likewise, employers have leeway to review and verify the identity of the person knocking on the door of their facility to conduct a safety inspection.  See generally Usery v. Godfrey Brake & Supply Serv., Inc., 545 F.2d 52, 54-55 (8th Cir. 1976) (finding that it was “reasonable” for an employer to ask for “appropriate credentials” and verify them with a phone call to OSHA’s office).  That said, this right should not be used to deny entrance to a properly identified and verified OSHA compliance officer, unless the employer is requiring the presentation of a warrant.  See id.

Seek Limitation or Clarification of Requests for Documents.  OSHA compliance officers will routinely present a subpoena duces tecum or other written request for documents to employers on the first day of the inspection and may follow-up with others thereafter.  They will usually draft these requests without the assistance of an attorney and before they have a good understanding of the employer’s business and practices.  The requests and categories of documents will often therefore be overly broad, inapplicable, or vague.

For example, the compliance officer may request “any and all correspondence between employees at the inspection site regarding health and safety issues, including, but not limited to, emails, letters, reports, orders, notes, text messages, photos, and other documents.”  A thorough search for this category of documents may return hundreds of thousands of responsive documents, most of which are inapplicable to the purpose and scope of the inspection.  The compliance officer, in all likelihood, does not want (and, indeed, has inadequate time to review) that amount of information—not to mention the time, effort, and expense the employer must spend searching, collecting, reviewing, and producing this information.

Employers should therefore first review the requests: (1) with their safety professionals who are knowledgeable about where and how the documents requested are maintained; and, (2) with an attorney who can advise on whether the requests are objectionable or seek privileged or confidential information.  The employer, usually in conjunction with its attorney, can then review the requests with the compliance officer to limit and/or clarify the requests.  In this way, both the employer and the compliance officer coordinate the most efficient and effective manner and scope of production.

Request Interviews to Be Conducted at a Reasonable Time and Place.  While employers are generally not allowed to impose their own representative at employee interviews (unless the employee voluntarily requests it and otherwise declines a private, one-on-one interview with the OSHA compliance officer), employers can have a business representative and/or attorney present at management interviews.  For that reason, employers have the right to request that such interviews be conducted at a mutually convenient and reasonable time and place.

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.

(4) Be (cautiously) cooperative with OSHA compliance officers.

How an employer responds to reasonable requests from an OSHA compliance officer during an inspection may ultimately impact the employer’s liability under the OSH Act regulations.  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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