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August 30, 2013
Do you really know how to manage an OSHA inspection?

By Howard Mavity, partner, Fisher & Phillips, LLP

Many articles on handling OSHA inspections provide the same basic guidelines and little explanation of why an employer should take certain steps. Readers already know to take photos whenever the compliance officer takes shots and to take notes, but do you know why to take those photos and what to look for? What do you need to note in order to challenge citations when they are issued 6 months later?

Plan in advance

Every company site should have a number of managers who know the basic steps to take whenever any government investigator shows up. The most important step is for site managers to know whom to call to obtain guidance. No executive or in-house counsel will be pleased to learn of an investigation upon receipt of a citation. I have handled nearly 500 fatality and catastrophic cases and have learned that no matter how tough someone may be, people shut down when a coworker or subordinate is killed. At most, site management can cope with evacuating and protecting employees and dealing with first responders. The company needs a system in place so that with one call, the site manager activates corporate support, including legal and risk management guidance, assistance to employees and families, and press and media management. Set up this system and practice responses. Do not assume that you will never face a fatality or catastrophe. Natural disasters, vehicular accidents, and workplace violence can strike any employer.

Make sure that management takes an OSHA inspection seriously. Many employers are unprepared for the aggressive approach now common, and even seemingly minor citations can harm the business. In some industries, even a single serious citation can harm bidding opportunities. Most six-figure citations have involved repeat violations of routine items such as missing electric cabinet switch labels, damaged extension cords, partially blocked electric cabinets, or one employee who missed his annual training. Each violation can serve as the basis for a repeat violation of up to $70,000 per item at any company location in any state under federal OSHA jurisdiction for 5 years. No inspection is minor. And furthermore, OSHA’s new information technology system will allow it to better track your corporation’s performance, even when the company operates under many names.

Manage the inspection

The first step is to determine why OSHA is present. Many inspections are triggered by a complaint, and OSHA must tell you the terms. Admit OSHA for the stated purpose, and limit the inspection to the scope of the complaint. OSHA can broaden the inspection if they observe hazards or if employees mention other hazards, but require the inspector to justify expanding the scope. Be courteous and professional with the compliance officer, but know and exercise your rights. A focus on safety does not preclude making OSHA adhere to its own procedures.

Recognize that the compliance officer must establish (1) an applicable standard, (2) a hazard, (3) employee exposure, and (4) that the employer knew of the violation or hazard or should have known of it with the exercise of “reasonable diligence.” Make sure that a hazard exists. Measure fall distances, check guards, etc. The burden is on OSHA to prove these four elements, so check to see if OSHA can prove that any employees were exposed in the last 6 months or would reasonably be expected to be exposed in the normal course of business. Is the area isolated? Do employees work near the alleged hazard? How often do employees travel in that area? How long was the hazard present?

Of these four elements, OSHA often does not build an adequate file on the employer’s knowledge of the violation. Any supervising employee’s knowledge of a violation is imputed to the company. Even where OSHA cannot prove that a supervising employee knew of the issue, they can prove this element by developing evidence that the employer should have known of the violation with the “exercise of reasonable diligence.” Consequently, OSHA must prove that the employer didn’t enforce safety rules, training was inadequate, or the employer made little effort to provide oversight. Show that the employer did in fact exercise this due diligence. Also, determine how long a violation was present, when supervisory employees were last in the area, and whether the employer performed any walk-arounds or inspections.

Don’t rush or feel bullied about providing documents. Some documents, such as OSHA 300 forms and safety data sheets (SDSs), must be promptly provided, but you have the right to a reasonable amount of time to provide other materials. Review them. Consider if an explanation is required or if any materials may be privileged or work-product protected. Don’t volunteer self-audits, insurance and consultant reports, or other similar materials without talking to counsel.

If documentation is weak, try to determine where on-the-job instruction occurred or where oral instructions were provided. You may still have a violation, but counsel may be able to use such information as defenses, to reduce classification, or to build goodwill. Obtain legal guidance because you must also be mindful that if an employer shows that it was aware of a standard’s requirement and did not follow it, there is a possibility that OSHA could cite the company with a willful violation, which typically carries the highest penalties.

Develop a defense strategy

In developing defenses, dig, dig, dig. There are always more facts. Don’t delegate. Ask the questions yourself.

Exercise your right to sit in on or have counsel attend interviews of any employee who supervises employees because he or she can bind the company. If a fatality, project delay, or any ancillary legal matter is involved, explain to OSHA that your principal concern is with protecting the client in other legal arenas. You have an absolute right to sit in with managers, but you should show courtesy to the compliance officer. You also may want to consult counsel about whether OSHA will define an employee as a supervisor. OSHA uses a broader definition than the National Labor Relations Board (NLRB) for the wage-hour division.

OSHA has the right to interview hourly employees in private, but you can briefly explain to the employees the reason that they are being interviewed and that you appreciate their cooperation. Sometimes it is permissible to tell them the topics OSHA may discuss, but primarily encourage them to tell the truth. Ensure that employees know you appreciate their cooperation with OSHA. OSHA is very sensitive to even a whiff of intimidation or threat of retaliation.

Multi-employer worksites present special challenges. When more than one employer is on-site, OSHA can cite the employee’s employer (the exposing employer), the supervising employer that was directing the work (such as at construction sites or for contingent workers), the creating employer that generated the hazard, the correcting employer that was responsible for addressing the hazard, or all of the above. Unfortunately, it often seems that one employer on a site will try to persuade OSHA of questionable facts and throw other employers under the proverbial bus. Be alert.

Don’t just accept citations or a penalty reduction

Do go to OSHA informally after citations are issued, and do contest all citations if you have reasonable arguments. Remember that OSHA inspectors focus on safety and often do not consider whether the citations will hold before a judge, but OSHA’s attorneys do recognize this reality. Negotiations may be fruitful.

As long as you ensure that OSHA knows you will and are addressing hazards, the agency will understand that your decision is dictated by business necessity and does not show a disregard for safety.

Finally, do not miss the contest period. And be aware that many states with their own workplace safety programs, such as California and Oregon, may have different appeal processes.

A partner in the Atlanta office, Howard Mavity co-chairs the Fisher & Phillips Workplace Safety and Catastrophe Management Practice Group. He draws on his past business experience in transportation, logistics, construction, and industrial supply to work with clients and focuses on eliminating employee problems through commonsense management. He oversees audits of corporate labor, human resources, and safety compliance, responds to virtually every type of day-to-day workplace inquiry, and has handled cases before the Equal Employment Opportunity Commission (EEOC), Office of Federal Contract Compliance Programs (OFCCP), National Labor Relations Board (NLRB), and numerous other state and federal agencies.

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