I was recently asked an interesting question by an industry contact:
“Employers often are told to know and exercise their rights during an OSHA inspection. What exactly are employers’ rights during an OSHA inspection?”
While it may not feel like it during an inspection, employers have many rights before, during, and after OSHA inspections.
Before an inspection even begins, employers have a right under the Fourth Amendment to the U.S. Constitution to be free in their workplaces, just as they are in their homes, from unreasonable searches and seizures, which includes inspections by OSHA. What that means is, OSHA may not inspect a workplace unless the Agency has administrative probable cause (a lower burden than criminal probable cause) to believe that a violative condition exists within. Accordingly, employers have a right to demand an inspection warrant that establishes OSHA’s probable cause to inspect. We rarely advise clients to demand an inspection warrant; rather we try to negotiate with the Agency over a reasonable scope of the inspection, and with such an agreement, waive the warrant right and consent to the inspection.
Another right employers should consider asserting with regard to OSHA inspections is the right to exclude non-employee third parties (such as a union representative at a non-union workplace) from participating in the inspection process. OSHA recently issued a formal Interpretation Letter of the regulation covering who may participate in OSHA walk-around inspection (29 C.F.R. 1903.8(c) – Representatives of Employers and Employees). Specifically, OSHA expressed its belief that employees at a non-union worksite may authorize a third party affiliated with a union or community organization to act as the employees’ representative during an inspection. Notwithstanding OSHA’s interpretation letter, the plain language of the standard makes it clear that such involvement by a third party union representative is not permitted under the law, and employers may exercise their rights to exclude third parties from the inspection by demanding and challenging a warrant under those circumstances. If confronted with such a situation, employers should consult with legal counsel before allowing any non-employee third party to participate. One approach would be to demand and challenge an inspection warrant. If the non-employee is permitted on the premises, employers should be explicit about who bears responsibility for any injury to that person, who is responsible for any PPE, determine whether that person is trained on any hazards that may be present or has any necessary security clearances for sensitive activities that may be in view, and how to protect any proprietary processes from being revealed. Here is an article we wrote on this issue when the interpretation letter was released.
Also before inspections begin, employers have the right to an opening conference. In my opinion, this is the most important stage of the inspection because it is the time when employers can:
- Negotiate to narrow the scope of the inspection;
- Can ask questions about the purpose of and probable cause justifying the inspection; and
- Try to establish ground rules with OSHA about how the inspection may proceed, from the collection of documents (through written requests only), to interviews (scheduled in advance), and physical access to the facility (only with a management escort).
If the inspection was initiated by an employee or former employee complaint, employers also have a right to access a copy of the complaint before consenting to the inspection.
Once an OSHA inspection begins, employers also have many rights, including a right to accompany the compliance officer at all times during the walkaround, and to take side-by-side photographs or other physical evidence that OSHA takes during the inspection. Another important right relates to management interviews. Interview statements by management representatives bind the company, and since the OSH Act gives employers the right to be present when binding statements are taken, employers therefore have a right to be present and participate in interviews of management witnesses, regardless of whether the management witness wants the representative there.