When OSHA Comes Knockin

As Alexander Graham Bell famously said, “before anything else, preparation is the key to success.” No truer words could be said to employers in the grain industry today about OSHA inspections. Secretary of Labor, Hilda Solis, summed up OSHA’s enforcement philosophy during her swearing in, when she stated: “There is a new sheriff in town. Make no mistake about it, the Department of Labor is back in the enforcement business. We’re serious. We’re very serious.” OSHA has certainly lived up to that tough talk.

Through increased penalties, inconsistent and confusing interpretations of grain-related regulations, aggressive special emphasis enforcement programs, inflammatory press releases, and criminal referrals to the Department of Justice, OSHA has hit the grain industry particularly hard. Accordingly, OSHA’s current enforcement philosophy makes the consequences of being unprepared for an OSHA inspection direr than ever before. To help grain handlers avoid those dire consequences, this article reviews:

(1) Steps grain handlers can take now to prepare for an unexpected visit from OSHA;

(2) Employers’ rights during an OSHA inspection;

(3) Step-by-step analysis of the stages of OSHA inspections; and

(4) Strategies for managing an inspection to best avoid a significant enforcement action or position the company for a successful challenge of citations.

Why prepare for an OSHA inspection

Over the past three years, the Department of Labor’s budget has funded a substantial increase in the size of OSHA’s enforcement team, and required OSHA to redirect many of its compliance assistance resources into enforcement. OSHA also re-wrote its penalty policies to increase the size of enforcement actions, introduced new forms of punishment, and launched new special emphasis programs that have greatly impacted the grain industry. These changes have more than doubled the frequency of significant cases (citations with fines more than $100,000), and have made it much easier for employers to be penalized as Willful or Repeat offenders.

Historically, OSHA found fewer Willful/Repeat violations because it treated workplaces within a corporate family as individual, independent establishments, limited review of employers’ OSHA records for prior citations to three years, and took a reactive approach to selecting inspection targets, making a follow-up visit to the workplace and Repeat violations less likely. Now, OSHA treats workplaces within a corporate family as one workplace, looks back five years in an employer’s OSHA record for past citations to serve as the basis for Repeat citations, and takes a proactive approach, often specifically selecting past violators as inspection targets. OSHA also sent letters to thousands of grain employers in 2010 and 2011 informing them of their responsibilities related to grain bin entries. OSHA has treated all employers who received these letters as being “on notice,” setting the stage for OSHA to issue Willful violations if employers disregarded the obligations outlined in the letters.

OSHA has also increased its use of National and Local Emphasis Programs to target the grain industry. These programs allow OSHA to randomly choose any employer in the grain industry for inspection without the need for an incident or employee complaint to create probable cause to inspect. For example, OSHA has instituted a Local Emphasis Program for Grain Handling in 5 different OSHA Regions (covering all of the major U.S. grain states). These inspection programs direct substantial inspection resources to grain elevators, looking for violations of OSHA bin entry requirements, housekeeping and combustible dust issues, preventive maintenance deficiencies, training, and other grain related hazards. Under these emphasis programs since 2009, OSHA has visited approximately 9,000 grain elevator facilities for enforcement inspections, almost all of which resulted in at least one alleged violation, and more than 3,500 total violations with untold millions in total penalties.

How to prepare for an OSHA inspection

One of the most important tools in preparing for an OSHA inspection is to understand the rights of the respective participants in the inspection process. These rights are defined by the U.S. Constitution, the OSH Act, and the Administrative Procedure Act. The employer must consider three different sets of rights developed by the aforementioned laws: OSHA’s rights, employees’ rights, and the employer’s rights.

OSHA has the right to…

• Inspect workplaces with probable cause;
• Conduct inspections without advance notice;
• Access employer records;
• Collect physical evidence, including photographs, video recordings, air and noise samples, etc., during the inspection; and
• Conduct employee interviews.

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.

Knowledge, planning improve outcomes

Transition

Be Familiar with OSHA Directives

The employer should get familiar with Directives affecting the inspection process for the applicable special emphasis enforcement programs to better understand what the Compliance Safety and Health Officer (CSHO) is looking for during inspections. The employer should also review OSHA’s Field Operations Manual, available at http://www.osha.gov/OshDoc/ Directive_pdf /CPL_02-00-148.pdf, to better understand the inspection process.

Implement and Audit Safety and Health Programs

Grain employers should implement a comprehensive safety program, and conduct internal or third party audits of work places and programs. Audits may be used to demonstrate good-faith efforts to address hazards, precluding a charge of willful violation. 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 worksite to be inspected - always use the most direct route or the route that avoids sensitive areas of the work place, even if that means walking around the outside of the building. 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 Philosophy

OSHA inspections only proceed with consent from the employer or an inspection warrant. The 4^th 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.

Stages of an OSHA inspection

An OSHA inspection consists generally of six stages: (1) opening conference; (2) Document Production; (3) walkaround inspection; (4) employee interviews; (5) closing conference; and (6) citations issued and contested. Each stage of the inspection affords the employer a chance to control its exposure to OSHA violations. In abiding by the advice provided below, the employer reduces the probability of a citation or at least enhances its ability to contest and moderate citations.

1. Opening Conference

Though all stages of an OSHA inspection are important, the Opening Conference provides the employer the best opportunity to limit the scope and duration of the inspection. The inspection begins when the CSHO arrives and displays his credentials. If the CSHO does not readily offer his credentials, the employer should ask to see them. Employers should insist that an opening conference take place if the CSHO attempts to skip this stage. The CSHO should begin the conference by explaining the intended purpose, scope and duration of the inspection, and identifying the impetus for choosing to inspect this work place; i.e., LEP/NEP, accident, employee complaint, etc. The employer should ask about the purpose and scope of the inspection if the CSHO does not volunteer that information.

The employer should also address the warrant issue depending on the CSHO’s willingness to negotiate the scope. Consent is preferable where the CSHO is willing to discuss the matter and come to a mutually-agreeable scope of inspection. The employer should know in advance who will participate in the opening conference and designate a location for the conference, employee interviews, and a work space for OSHA if the inspection will continue for multiple days. Finally, establish document request and interview protocols during the Opening Conference. Specifically, request the CSHO provide document requests in writing and schedule interviews in advance to avoid business disruption.

2. Document Production

The CSHO will also request documents and information from the employer throughout the inspection. The employer should insist on written requests for all documents (except the 300 Logs/300A Forms, because the law requires the production of these records within four hours). A written request allows the employer to analyze the request for objections, gives the employer more time to respond to the CSHO’s requests, and permits the employer to track the requests and the documents produced. It also allows the employer to more carefully parse the words of the request, and provide only the records requested, and no more.

The employer should review all requested documents for responsiveness, privilege, and trade secret or confidential business information, and designate information that must be maintained as confidential. The employer should make sure that OSHA understands all relevant facts, but should not generate records to respond to a document request. During the inspection, it is imperative to remove documents from plain sight, which includes any information displayed on a whiteboard or binders in an area to be used for OSHA interviews or the CSHO’s work space. Finally, keep a duplicate set of all documents produced to OSHA, and maintain a Document Control Log to track the status of the document production.

3. Walkaround Inspection

A management representative should accompany the CSHO at all times during the walkaround inspection. The CSHO should be escorted at all times to ensure that he abides by all company safety rules, to control the flow of information, to gather intel on the focus of the inspection, and to ensure the areas visited during the walkaround are strictly limited to the agreed upon scope of the inspection. The CSHO may take photos, video recordings, samples, identify hazards and make suggestions. The employer representative should take detailed notes of the CSHO’s actions, and mimic those actions to ensure the employer has the same data. Have a camera ready and take side-by-side pictures or video. Ask for advance notice prior to any sampling, and fix any hazards identified as soon as possible, but do not admit to violations. If the inspection will last more than one day, request a brief meeting at the end of each day to ask about concerns, interview intentions, and tasks for the next visit. Be cordial and professional, but also protect your rights.

4. Employee Interviews

OSHA will interview both hourly employees and management represents 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 pre-selected 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. The OSH Act gives OSHA the power to issue investigative subpoenas. Therefore, the employer and its employees should find a balance of asserting rights but not driving OSHA to pursue a subpoena.

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. For example, the witness has the right not to be recorded or to sign anything, and should only answer the question asked. “I don’t know” and “I don’t remember” are perfectly acceptable answers.

5. Closing Conference

A closing conference takes place at the end of 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. Employer 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: (1) accept the citation and pay the fine (almost never the best option); (2) request a variance (almost never available); (3) resolve citations at an informal settlement conference with OSHA (more difficult now because the national OSHA office has limited the flexibility of Area Offices); (4) 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 (5) contest the citation and proceed to a hearing before an administrative law judge with the Review Commission. The employer should consider several questions in deciding to contest a citation. For example:

• Are the citations accurate?
• Will the citations potentially expose the employer to Repeat violations?
• Are the proposed penalties appropriate?

Because of OSHA’s assault on the grain industry, employers today need to prepare for inspections, protect their inspection rights, and manage the flow of information during inspections. Through preparation, grain handlers will be ready to properly manage an OSHA inspection and any consequences that result. Following the steps provided here will provide employers in the grain industry the necessary tools to avoid significant enforcement actions, and put them in an advantageous position from which to challenge possible violations.

For more information about OSHA issues, visit Epstein Becker & Green’s OSHA Law Update Blog at www.oshalawupdate.com.