OSHA will interview both hourly employees and management representatives during the inspection. Arrange all interviews according to the interview procedure developed during the opening conference, and conduct them off the work floor in a preselected location. The employer should object to impromptu, on-the-floor interviews lasting more than a couple of minutes as an undue hindrance to production; the employer can request an alternative time and place based on the requirement that OSHA must be “reasonable” in its interview demands. Note: OSHA has the power to issue investigative subpoenas.
An employer representative may participate in any interview, but only has the right to participate in management interviews because all knowledge of a supervisor is imputed to the company. An hourly employee may request that the employer’s attorney be present during his interview, but the employer must not intimidate or coerce the employee into requesting this. Do not discriminate against any employee for agreeing to be interviewed, for interviewing with OSHA privately, or for anything he says to OSHA.
Employers should prepare all witnesses for OSHA interviews by explaining the rights of the witness and providing interview tips.
5. Closing conference
A closing conference takes place at the end of the inspection, which may be weeks after the on-site portion of the inspection. The CSHO will explain the employer’s post-citation rights, and communicate any findings such as the standards allegedly violated, the bases for alleged violations, and possibly abatement and abatement dates. Employers should listen carefully and take notes. The CSHO will likely not share the classification of violations or the penalty amounts, but an employer may inquire about that information. At this stage, employers can correct any errors or misimpressions of the CSHO, but should not argue. Employers should also provide details of any alleged violations that have already been corrected, but again, avoid any admissions or promises, and ask for time to offer supplemental information before any citations are issued.
6. Citations issued and contested
According to Section 9(c) of the OSH Act, OSHA has six months to complete its investigation, draft reports and issue citations. After an employer receives a citation, it has several options: Accept the citation and pay the fine (almost never the best option); request a variance (almost never available); resolve citations at an informal settlement conference with OSHA (more difficult now because the national OSHA office has limited the flexibility of area offices); file a notice of contest with OSHA and negotiate a formal settlement with the Office of the Solicitor of Labor (generally the best option); or contest the citation and proceed to a hearing before an administrative law judge with the Review Commission.
The steps outlined here will provide employers the necessary tools to avoid significant enforcement actions, and put them in an advantageous position from which to challenge possible violations.
Eric Conn is a member of Epstein Becker Green’s Labor and Employment practice. Conn is the head of the firm’s national OSHA Practice Group and leads the firm’s efforts to provide occupational safety and health services to its clients. Lindsay Smith is currently a summer associate at Epstein, Becker & Green in the firm’s Labor & Employment Practice.