Workforce Bulletin

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:

1. Negotiate to narrow the scope of the inspection;
2. Can ask questions about the purpose of and probable cause justifying the inspection; and
3. 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.

Join Eric J. Conn and Amanda Strainis-Walker, attorneys from Epstein Becker & Green's national OSHA Practice Group, for two in-person OSHA briefings on Tuesday, September 24th in Philadelphia, PA and Wednesday, September 25th in Pittsburgh, PA.

The presentations will focus on why it's important to and how best to prepare for and manage OSHA inspections.  Here is the invitation:

To register for the 9/24 Philadelphia Briefing, click here.

To register for the 9/25 Pittsburgh Briefing, click here.

 

If you have questions about these events, please contact Eric J. Conn, Head of the ...

By Paul H. Burmeister and Eric J. Conn

On April 5, 2013, OSHA published a formal Interpretation Letter (dated February 21, 2013) addressing whether, pursuant to OSHA’s regulation at 29 C.F.R. 1903.8(c) (Representatives of Employers and Employees), employees at a worksite without a collective bargaining agreement may authorize a person affiliated with a union or community organization to act as the employees’ representative during proceedings under the OSH Act, including compliance inspections.  OSHA responded affirmatively.

29 C.F.R. 1903.8(c) provides:

"The representative(s) authorized by employees shall be an employee(s) of the employer.  However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the Compliance Safety and Health Officer during the inspection."

OSHA’s April 5, 2013 Interpretation Letter clarified its interpretation of the types of non-employees it considers to be “reasonably necessary to the conduct of an effective and thorough physical inspection,” by stretching the meaning beyond what has historically been understood to include only individual’s with relevant technical expertise to aid in the inspection, such as those listed as examples in the language of the regulation; i.e., “an industrial hygienist or a safety engineer.”  This interpretation moves away from that commonsense reading, and expressly invites the involvement of non-technical union representatives, even from unions who have not been elected to represent the workforce.

OSHA broke the question down into two parts. First, OSHA stated affirmatively that the OSH Act recognizes the role of an employee representative to represent employees’ interests in enforcement related matters.  Specifically, the employee representative, OSHA asserts, need not be a co-worker at the worksite. The employee representative could include any person (including community organization members) who acts in a bona fide representative capacity.

Second, OSHA clarified that non-union employees may have a union representative act as their employee representative, under Section 8 of the OSH Act. However, the union representative must be duly authorized by the employee to act as his representative. OSHA also noted under 29 CFR § 1903.8 that OSHA may exercise its discretion in allowing a non-employee representative, but generally would allow it when the non-employee representative may make a positive contribution to the inspection. For example, the letter specifically cites non-employee representatives who are skilled in evaluating similar working conditions or are fluent in another language that may be helpful.

In March of last year, we answered five frequently asked questions related to OSHA inspections.  After receiving much positive feedback about that post and a few new OSHA inspection-related questions, we decided to launch a regular series on the OSHA Law Update blog with posts dedicated to OSHA Frequently Asked Questions.  For each post in this OSHA FAQ Series, we include both a text response and a video/webinar with slides and audio.

In last month’s OSHA FAQ #4 we talked about the importance of and strategies for establishing an internal OSHA Inspection Team.  In this month’s OSHA FAQ ...

Epstein Becker Green is pleased to announce the availability of a Wage and Hour Division Investigation Checklist, which provides retail employers with valuable information about wage and hour investigations and audits conducted by the U.S. Department of Labor (DOL). Like EBG’s first-of-its kind Wage and Hour App, which provides detailed information about federal and state laws, the Checklist is a free resource offered by EBG.

The Checklist provides step-by-step guidance on the following issues: preparation before a Wage and Hour Division investigation of the DOL; ...

Back in March, we answered five frequently asked questions related to OSHA inspections.  We received so much positive feedback from that post, and so many requests to address additional OSHA questions that we decided to launch a monthly series here on the OSHA Law Update blog with posts dedicated to your OSHA Frequently Asked Questions.  For each of the posts in this OSHA FAQ Series, we have included both a text response and a video/webinar response with slides and audio.

In this post, OSHA FAQ #4, we address a question regarding establishing an OSHA Inspection Team, including what roles should be designated and how to prepare the team for an unexpected visit from OSHA.

QUESTION:   To best prepare for an unannounced OSHA Inspection, my Company is assembling an “Inspection Team” to be ready to manage a visit from OSHA.  What are the different roles that we should include on the Team, and what are the responsibilities for which we should train the various team members?

Click here to view a video response (WMV video format). 

OSHA conducts approximately 95% of its “Discovery” during the inspection phase (not the subsequent Contest stage), and uses the Discovery it obtains during inspections to determine whether violations are present and can be supported in potential citations.  Accordingly, it is critical for employers to be prepared to manage the flow of information to OSHA during an inspection.

Accordingly, one of the most important steps every employer should take to prepare for an OSHA Inspection, and to ensure the inspection process goes smoothly once an OSHA compliance safety and health officer (CSHO) does arrive, is to designate certain personnel to fill specific roles on an Inspection Team.  This will help you respond quickly when OSHA starts an inspection, have better controls in place to manage the flow of information during the inspection, such as better:

• Control over the entire scope of the inspection;
• Organization and care in the document production process;
• Preparation and representation of employees and managers during inspection interviews;
• Ability to capture duplicate evidence; i.e., side-by-side photographs, samples, and other physical evidence, and a complete copy set of documents produced to OSHA; and
• Control over what parts of your facility the CSHO observes during his walkaround inspection.

To accomplish these goals, we recommend that you assign, in advance of any inspection, the following Inspection Team roles, and train the assigned team members in all of the related employers’, employees’, and OSHA’s rights, as well as inspection strategies, related to their assigned roles on the Inspection Team:

1.  Principal Spokesperson.

• The spokesperson is the team leader and point person for OSHA during the inspection.
• It is the Principal Spokesperson to manage the overall inspection, from communicating decisions to OSHA about consenting to the inspection or demanding a warrant, to negotiating the scope of the inspection, and laying the ground rules for document production and interviews.
• This role is generally covered by your outside OSHA counsel, Corporate Safety Director, or another Senior Management representative.  The inspection should not be permitted to begin until the Principal Spokesperson is on-site (see our earlier post regarding delaying the start of an OSHA inspection to await your inspection representative).

2.  Document Coordinator.

• Managing the document production during the inspection is perhaps the most important role.
• The Document Coordinator should manage the entire document production process, including: (a) being designated as the sole authorized person to accept a document request (always in writing) from OSHA; (b) coordinating with company and third party representatives to gather responsive documents; (c) reviewing documents for responsiveness, and to determine whether they contain privileged or business confidential information; (d) processing the documents with Bates and Business Confidential labels; (e) preparing duplicate copies for the Company to keep; (f) producing the documents to OSHA; and (g) tracking the status of all document requests on a Document Control Log.

Back in March, we answered five frequently asked questions related to OSHA inspections.  We received so much positive feedback from that post, and so many requests to address additional OSHA questions that we decided to launch a monthly series here on the OSHA Law Update Blog for OSHA FAQ posts.  For each of the posts in this OSHA FAQ Series, we have included both a textual response and a video response with slides and audio.

In this post, OSHA FAQ #3, we address a very common question regarding whether (and for how long) employers can ask OSHA to delay the start of an inspection to allow a ...

Back in March we answered five frequently asked questions related to OSHA inspections.  We received a lot of positive feedback about that post and several requests to address additional questions.  Following up on that feedback, we will be adding additional FAQ posts as a regular feature of the OSHA Law Update Blog.  In addition to the text responses to the FAQs, we will also provide a webinar link with audio and slides to provide more in depth responses to each question.  Click on the image of the slide below to watch and listen to the first webinar response.

In this post we address a ...

Join us Wednesday, June 20, 2012 at 9:00 am Eastern either by Webinar or in person for a complimentary briefing presented by Epstein Becker Green attorneys Eric J. Conn and Amanda R. Strainis-Walker of the Firm’s national OSHA Practice Group.

The briefing will cover actions that employers should take now to prepare their workplaces and workforce for unexpected visits from the Occupational Safety and Health Administration (OSHA), review employers’ and employees’ rights during an OSHA inspection, and discuss inspection strategies to ensure the best possible outcome from ...

Late last year, I delivered a keynote address to the National Grain & Feed Association’s (NGFA) annual Country Elevator Conference regarding:

1. Why it is important for grain handlers to prepare now for an OSHA inspection;
2. What to do now to prepare for an OSHA inspection; and
3. How best to manage an OSHA inspection once it begins.

The Grain Journal, a leading voice in the grain industry, published a three-part article series about my speech in its March/April issue.  The articles   – “OSHA Is Targeting You,” “Preparing for an Inspection,” and “During the Inspection” – can be ...

By Eric J. Conn

Below is a set of important questions that we are frequently asked by clients when OSHA unexpectedly shows up at their doorsteps.  These questions and many more are also addressed in our OSHA Inspection Checklist desk reference guide.

*          *          *          *          *          *          *          *

Scenario 1:   An OSHA Compliance Safety and Health Officer (CSHO) arrives unannounced to begin an inspection, but the employer’s representative whom the employer desires to manage the OSHA inspection is not present at the workplace.  Can the employer request that the CSHO return later or wait to start the inspection until the ...