When OSHA Comes Knockin’

Employees have the right to…

• File a complaint with OSHA;
• Not be retaliated or discriminated against for filing a complaint or for participating in an inspection;
• Participate or be represented in the opening conference, the walkaround, private interviews with OSHA, the closing conference, and an informal settlement conference;
• Choose whomever or no one to be an interview representative; and
• Access inspection related records.

Employers have the right to…

• A “reasonable inspection” at a “reasonable time” in a “reasonable manner,” according to Section 8 of the OSH Act;
• Demand a warrant;
• An opening conference;
• A copy of a formal employee complaint;
• Accompany OSHA during the walkaround at the workplace;
• Participate in management employee interviews;
• Protect trade secrets/confidential business information from public disclosure;
• A closing conference; and
• Challenge any citation.

Planning improves outcomes

To better understand what the Compliance Safety and Health Officer (CSHO) is looking for during inspections, employers should get familiar with the directives that detail the inspection process for special emphasis programs, and review OSHA’s Field Operations Manual.

Implement safety, health programs

Grain employers should implement a comprehensive safety program, and conduct internal or third-party audits of workplaces and programs. Audits may be used to demonstrate good-faith efforts to address hazards, precluding having violations characterized as “willful.” The failure to address recommendations identified in an audit, however, could be used as support for a willful violation by demonstrating knowledge of a hazard and a “reckless disregard” or “plain indifference” to it. To avoid that risk, employers should carefully review prior audits and make certain to address all recommendations. A response document that clearly shows how each audit finding was addressed should accompany each audit. The employer should also consider conducting audits with the help of an attorney, thereby protecting the audit findings and recommendations from OSHA under attorney-client privilege.

Establish an inspection team

Before an inspection, employers should designate an inspection team, and train that team in what steps to take during an inspection. Positions on the team should include:

• Principal spokesperson;
• Union/contractor liaison;
• Photographer;
• Document production coordinator;
• Walkaround representative; and
• Interview representative.

One person can cover several of these positions. Once the employer designates these positions, it must train the inspection team in who to contact when OSHA arrives; inspection rights; relevant OSHA standards; and how to control access to and the flow of information during an inspection. The employer should also equip its inspection team with a camera/video camera, a contact list, sampling tools, a document control log, a copy of OSHA’s Field Operations Manual, and document labels.

Employers should designate inspection routes based on the particular area of the work site to be inspected — always use the most direct route or the route that avoids sensitive areas of the workplace. After thinking about the best inspection routes, employers should audit the routes and correct any hazards in plain view from those areas.

Determine warrant/consent stance

OSHA inspections only proceed with consent from the employer or an inspection warrant. The Fourth Amendment to the U.S. Constitution requires that a Judge issue a warrant only upon a showing of probable cause, but OSHA has had little difficulty meeting the reduced administrative probable cause standard. Though the employer has the right to demand OSHA produce a warrant to inspect, consenting to an inspection is usually the better course. Generally, demanding a warrant benefits the employer only in that it provides the employer some extra time (a day or two) to better prepare for the inspection, but an employer also faces potential retaliation for demanding the warrant. Through consent, the employer risks a broader search than the judge might have authorized, but gains the appearance of cooperation, which fosters a better position to negotiate over the scope of the inspection, and manage the inspection to minimize business interruption. Generally, an employer should waive the warrant requirement and consent to the inspection, but only after negotiating an acceptable scope and satisfactory conditions.