Eleventh Circuit Limits Scope Of Unprogrammed Inspection

By Robert G. Chadwick, Jr., Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On October 9, 2018, the Eleventh Circuit Court of Appeals in U.S. v. Mar-Jac Poultry, Inc., affirmed a district court order quashing a search warrant which sought to expand the scope of an unprogrammed OSHA inspection.

Following an electrical accident at Mar-Jac Poultry, Inc., a Georgia poultry processing plant, OSHA requested to inspect not only those hazards involved in the electrical accident, but also to conduct a comprehensive inspection of the entire facility for additional hazards. Mar-Jac consented to inspection of the electrical accident site and the tools involved, as well as its OSHA 300 Logs, but refused to permit inspection of any additional areas or hazards.

In its application for a judicial warrant for an expanded inspection, OSHA sought to inspect (1) hazards implicated by the OSHA 300 logs, and (2) hazards that the Poultry Regional Emphasis Program (“REP”) identified as being of particular concern within the poultry processing industry. OSHA obtained its requested warrant, but Mar-Jac promptly filed an emergency motion to quash.

The District Court granted the motion to quash as to the hazards identified in the Poultry REP. The Court found OSHA had failed to establish that Mar-Jac was selected for inspection pursuant to the application of neutral criteria. OSHA did not appeal this ruling.

The District Court also granted the motion to quash as to five hazards implicated by the OSHA 300 logs.  OSHA did appeal this ruling to the Eleventh Circuit.

In affirming the District Court ruling, the Eleventh Circuit opined: “The existence of injuries does not necessarily mean that the injuries were caused by OSHA violations, or justify the issuance of an administrative warrant for evidence of OSHA violations.”  Upon analysis, the Court thus ultimately found: “The content of the OSHA 300 logs in this case fails to create reasonable suspicion [of an OSHA violation] either alone or in combination with the other information in the [warrant] application.”

The Eleventh Circuit ruling confirms what this blog has urged in multiple posts.  There are limits to the permissible scope of an unprogrammed OSHA inspection. If OSHA is unwilling to agree to a limited inspection, there are options which can be explored with legal counsel for fighting an expanded inspection.

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OSHA Reverses Course On Safety Incentive Programs and Post-Accident Drug Testing

By Robert G. Chadwick, Jr, Managing Member, Seltzer, Chadwick, Soefje & Ladik, PLLC.

On May 12, 2016, OSHA published a final rule that, among other things, added a provision prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. See 29 C.F.R. § 1904.35(b)(1)(iv)  The agency subsequently published guidance clarifying that certain workplace safety incentive programs and post-accident drug testing programs could deter reporting and therefore violate the new anti-retaliation rule.

On October 11, 2018, OSHA reversed course in its interpretation of the anti-retaliation rule. In a Memorandum to Regional Administrators, the agency clarified that the rule “does not prohibit workplace safety incentive programs or post-incident drug testing.”  Rather, action under a safety incentive program or post-incident drug testing policy would be unlawful only “if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting safety and health.”

The Memorandum provides welcome clarification for employers which use incentive programs to promote workplace safety and health.  The Memorandum advises that an employer can avoid any inadvertent deterrent effects of  incentive program by implementing:

  • “an incentive program that rewards employees for identifying unsafe conditions in the workplace;
  • a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;
  • a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.”

Employers would do well to heed such advice.

The Memorandum also clarifies that drug testing is permissible “to evaluate the root cause  of a workplace incident that harmed or could have harmed employees.” Still, the Memorandum cautions that “[i]f the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.” Employers would also do well to heed such advice, as well as be mindful that drug testing may be regulated by applicable state or local laws.

IN 2017, OSHA ISSUED MORE THAN 150 CITATIONS IN EXCESS OF $100K

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

According to OSHA’s website, more than 150 citations issued by the agency in 2017 proposed fines in excess of $100,000. More than 30 of these citations proposed fines in excess of $200,000.

An increase in the number of OSHA inspections resulting in six-figure penalties was predicted in a previous article by this author. After all, the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015 specifically authorized increased penalties by many federal agencies, including OSHA.

For employers, there are nevertheless three important takeaways from the enforcement data published by OSHA. First, any questions as to how OSHA would use its new penalty authority are being answered. The agency has regularly embraced and used its new authority.

Second, OSHA’s enforcement philosophy has continued despite the change in administration. Citations and fines remain cornerstones of the agency’s approach to workplace safety. Employers which may have hoped for a more collaborative approach in the new administration saw nothing in 2017 to buttress this hope.

Finally, the financial stakes for employers in OSHA inspections have been raised. One of the purposes of this author’s blog, How to Survive an OSHA Inspection, is to alert employers to the benefits of being prepared for an OSHA inspection and being diligent during an inspection. These benefits can include avoided citations or reduced penalties. The more OSHA penalties rise, the more sense it makes for employers to be prepared for, and be diligent during, OSHA inspections.

WHAT DOES AN EMPLOYER NEED TO KNOW ABOUT AN OSHA CLOSING CONFERENCE?

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

At the conclusion of an inspection, OSHA generally conducts a closing conference. The closing conference may be conducted in person at the employer’s worksite or by telephone. Most closing conferences are conducted by telephone.

What is the Purpose of the Closing Conference?

The closing conference provides the OSHA Compliance Safety & Health Officer (“CSHO”) the opportunity to review apparent violations and other pertinent issues, if any, found during the inspection, including input for establishing abatement dates.

Who Can Attend the Closing Conference?

OSHA conducts the closing conference with the employer and employee representatives, if any. As with the opening conference, the employer can be represented by legal counsel at the closing conference.

What Should an Employer Do at the Closing Conference?

An employer should generally do three things at a closing conference. First, the employer should listen carefully to OSHA’s findings. Depending upon the circumstances, it may be worthwhile to inquire as to specific information supporting an alleged violation. The employer can then use this information to formulate a strategy for responding to the anticipated citation. Getting a head start on this strategy avoids the time crunch presented by the short period – 15 working days – to respond to the citation once issued.

Second, the employer should endeavor to determine whether OSHA has all the information requested during the inspection. OSHA citations are often based misunderstandings as to what was or was not provided to OSHA. The closing conference provides the opportunity to avoid citations based upon such misunderstandings.

Finally, the employer should ask about hazards that need to be abated. Prompt abatement of hazards identified by OSHA has two advantages. First, prompt abatement can be cited as a basis for reducing a proposed penalty. Second, getting a head start on abatement avoids the time crunch which can be presented by the short abatement deadlines typically found in citations.

What Should an Employer Not Do at the Closing Conference?

Generally, an employer should avoid arguments with the CSHO as to alleged violations. As with other components of an OSHA inspection, what the employer says during a closing conference can be used against it in issuing citations and proposed penalties.

The authority of a CSHO to modify a finding during the closing conference, moreover, is limited. See Field Operations Manual pp. 3-20-23. More authority to modify citations is vested with the Area Director or Assistant Area Director during the informal settlement conference.

How Long after the Closing Conference Will Citations Be Issued, if at All?

The Occupational Safety & Health Act provides “no citation may be issued … after the expiration of six months following the occurrence of any violation.” 29 U.S.C. § 658(c). Accordingly, a citation may be issued several days or several months after an OSHA inspection.

HAS OSHA RESUMED STRATEGY OF PUBLICLY SHAMING EMPLOYERS?

By Robert G. Chadwick, Jr., Seltzer Chadwick Soefje & Ladik, PLLC.

On December 1, 2017, OSHA issued a news release on its website announcing that citations had been issued by the agency against Manafort Brothers, Inc. for alleged violations at a construction cite in Portsmouth, N.H. The citations proposed penalties of $329,548 for allegedly exposing employees to mercury and respiratory hazards.  The news release included a statement by OSHA’s Area Director opining: “These hazards were certainly preventable.”

As noted in a previous post on this blog, one of the strategies regularly employed by OSHA under the Obama administration was public shaming of employers which received citations. Upon the inauguration of President Trump on February 20, 2017,  OSHA’s strategy abruptly slowed. During the first five months of the Trump administration, OSHA issued only five press releases announcing citations issued against employers.

Recently, however, press releases such as that issued by OSHA on December 1st have dramatically increased.  In November alone, the agency issued eleven press releases announcing citations; one of these press releases was for a citation proposing fines of only $43,458. This development begs the question: Why the abrupt change from the previous months of this administration?

Unfortunately for employers, one answer to this question may be that OSHA has resumed the strategy of publicly shaming employers which receive citations. If so, this development would be unfortunate because OSHA citations may be later amended, reduced or even dismissed. Regrettably, developments favorable to employers are rarely announced publicly by the agency.  Even worse, the agency will generally not remove a news release regarding a citation even if the citation is later amended, reduced or dismissed.

To be sure, November may simply be an aberration and not indicative of any sea change at OSHA.  Still, employers would be wise to closely monitor OSHA’s website to see if bad press is once again a risk of an OSHA inspection.

WORKPLACE VIOLENCE: AN OSHA UPDATE

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

On October 18, 2017, an employee of a Maryland granite company allegedly killed three co-workers and wounded two others at his place of employment. Police reported that the employee allegedly shot all five co-workers with a .380 caliber handgun.

According to OSHA, “2 million American workers are victims of workplace violence each year.” For Fiscal Year 2015, the Bureau of Labor Statistics reported that workplace violence accounted for 417 homicides; 354 of these homicides were attributed to gun violence. A recent FBI study found that 80% of active shooter situations occurred at work.

OSHA has been addressing workplace violence for years. In the past year, however, the agency has recently undertaken new initiatives to curb workplace violence. On December 6, 2016, OSHA issued a Request for Information to determine whether a new standard is needed to protect healthcare and social assistance workers from workplace violence. On January 19, 2017, the agency published a new Compliance Directive setting forth enforcement procedures and scheduling for occupation exposure to workplace violence. On June 29, 2017, OSHA issued the largest workplace violence citation in history when it issued a $207,690 failure to abate citation and fine against a Massachusetts behavioral health facility.

So, what do employers need to know about OSHA enforcement activities as to workplace violence?

Many Workplace Violence Incidents Must be Reported

All employers are required to notify OSHA when an employee is killed on the job or suffers a work-related hospitalization, amputation, or loss of an eye. A fatality must be reported within 8 hours. An in-patient hospitalization, amputation, or eye loss must be reported within 24 hours.

Fatalities or Injuries From Workplace Violence May Need to be Recorded

Under OSHA regulations, each employer required to keep records of fatalities, injuries and illnesses, must record each fatality, injury or illness that is “work-related.” 29 C.F.R. §1904.4 According to OSHA, an injury is presumed to be work-related if it results from an event occurring in the work environment. A fatality or injury from workplace violence may thus need to be recorded even if the incident itself was not work-related.

OSHA Can Conduct Inspections or Investigations as to Workplace Violence Exposure

The January 19, 2017 compliance directive addresses the procedures for inspections for hazards associated with occupational exposure to workplace violence. The directive provides that these procedures shall include review of the employer’s (1) written plan or other policies and procedures to protect employees from workplace violence; (2) injury and illness records; (3) training records; (4) employee medical records, and (4) other records such as police and security reports. Employee interviews are also contemplated by the directive.

OSHA Can Issue Citations Based Upon Workplace Violence Exposure

There is no OSHA specific standard which addresses workplace violence. However, under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970, employers are required to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious harm.” As to an alleged workplace violence hazard, OSHA can prove a violation of the general duty clause by showing (1) the employer failed to keep the workplace free of a hazard of workplace violence to which its employees were exposed, (2) the hazard was recognized by the employer, (3) the hazard was causing, or likely to cause, death or serious physical harm, and (4) there was a feasible and useful method to correct the hazard.

OSHA Does Issue Citations Based Upon Workplace Violence Exposure

During the period from October 30, 2012 through October 20, 2017, over 50 citations were issued by OSHA under the General Duty Clause against employers for workplace violence exposure. One citation was issued against a retail store where a store associate was shot during an armed robbery.

Another citation was issued against a security company whose security guard was fatally shot by a visitor to a federal building. The abatement proposed by the citation was the development and implementation of a workplace violence prevention program.

Yet another citation was issued against a convenience store where a clerk was set on fire during a robbery. This citation also proposed the development and implementation of a workplace violence prevention program, which included annual training of employees.

Takeaways for Employers

To be sure, not all workplaces can be alleged to have presented a risk of workplace violence, even when an incident occurs. Many incidents are simply incapable of being foreseen by an employer. The General Duty Clause, however, entails elements which are capable of broad interpretation. Especially when there is an employee fatality or horrific injury, OSHA may attempt to stretch the General Duty Clause to its limits. When in doubt, therefore, an employer should implement a written workplace violence prevention program which includes employee training.

If an incident of workplace violence occurs, an employer must also be mindful of its reporting and recording obligations. Even where a violation of the General Duty Clause cannot be shown, an employer can still be cited for not meeting its reporting or recording obligations.

PREPARING NON-MANAGEMENT EMPLOYEES FOR OSHA INTERVIEWS!

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

The Occupational Safety & Health Act (“OSH Act”) authorizes OSHA, as part of an inspection of an employer, to “question privately any such employer, owner, operator, agent or employee.” As part of an OSHA inspection, therefore, the employer should expect the agency to request interviews in private with management and non-management employees. A previous posting on this blog has already addressed interviews of management employees.

An employer has a right to inform non-management employees of their rights and obligations during an OSHA interview.  OSHA legal experts generally agree this right should be exercised by an employer.  After all, questioning by a representative of the federal government can be an intimidating experience.  The employee may not know that he or she has the right to say no to the OSHA Compliance Officer; the OSHA Compliance Officer will likely not volunteer this information.  Intimidation and ignorance of employee rights risks inaccurate, confusing or incomplete answers which may lead to citations with significant fines. Knowledge can thus serve not only the employee, but also the employer.

There nevertheless are risks with undertaking to inform non-management employees of their rights and obligations during an OSHA interview.  First, an employee may misinterpret the undertaking as an indication the employer has something to hide.

Second, such an undertaking can be misinterpreted by an employee to be an effort at intimidation immediately prior to the interviews.  Such intimidation can itself be  a violation of Section 11(c) of he OSH Act which prohibits discrimination against an employee who exercises any rights afforded by the Act.

Third, such an undertaking can itself be the topic of discussion during the interviews. OSHA will likely become aware of the efforts of an employer to speak with its employees beforehand. This may prompt OSHA to change strategies and attempt to contact employees while they are away from work.

Fourth, such preparation may face logistical issues, especially if the inspection allows only a short time for briefing the employees. By the time an interview is requested, an employee may only be partially prepared or not prepared at all.

Still, OSHA legal experts are right about the importance of preparing non-management employees for private interviews during an inspection. So, how should an employer go about ensuring that these employees are adequately prepared without the inherent risks associated with last minute efforts?

This writer believes that a written explanation of non-management employee rights and obligations during an OSHA inspection may be one solution. This written explanation can be (1) included with the employer’s safety and health rules, (2) reviewed as part of a safety training session, or (3) posted with other employment-related posters.  The written explanation may also be distributed on the date of the inspection to serve as a reference guide in the event employees have questions during the interview.

A well-written explanation should address four areas: (1) OSHA inspections, (2) employee rights, (3) employee obligations, and (4) freedom from retaliation.

(1) OSHA Inspections: As to OSHA inspections, employees should be advised in writing:

  • OSHA has the statutory authority to conduct inspections of the employer’s workplace.
  • As part of an inspection, OSHA may ask to speak privately with employees at work.
  • As part of an inspection, OSHA may try to contact employees away from work.
  • The purpose of the written explanation is simply to inform the employees of their rights and obligations during interviews, and not to state any position of the employer with respect to the interviews.

(2) Employee Rights: As to employee rights, employees should be advised in writing:

  • The employee’s right to speak to the OSHA Compliance Officer.
  • The employee’s right not to speak to the OSHA Compliance Officer, absent a subpoena.
  • The employee’s right to speak to the OSHA Compliance Officer at a time and place of his or her choosing.
  • The employee’s right to speak to the OSHA Compliance Officer only through a translator if English is not his or her primary language.
  • The employee’s right to speak to the OSHA Compliance Officer privately.
  • The employee’s right to speak to the OSHA Compliance Officer with another person present. This person can be an employee representative, a management representative, a personal attorney or the employer’s attorney.
  • The employee’s right to break or conclude the interview at any time.
  • The employee’s right to sign a statement at the conclusion of the interview.
  • The employee’s right to decline to sign a statement at the conclusion of the interview.
  • The employee’s right to consent to being recorded during the interview.
  • The employee’s right to refuse to consent to being recorded during the interview.
  • The employee’s right to explain working conditions in his or her own words, rather than in words provided by the OSHA Compliance Officer.

(3) Employee Obligations: As to employee rights, employees should be advised in writing:

  • The employee must be truthful with the OSHA Compliance Officer.
  • The employee’s obligation to be truthful means he or she should not guess or speculate in response to any question from the OSHA Compliance Officer. An “I don’t know” answer is acceptable.  “I guess”, “I suppose”, “possibly” or “maybe” are not acceptable answers.
  • The employee’s obligation to be truthful means he or she should not answer questions without an understanding of what is being asked.

(4) Retaliation: As to retaliation, employees should be advised in writing:

  • The employer will not retaliate against an employee who exercises any of the rights set forth in the written explanation, or under the OSH Act.
  • Any retaliation should be reported immediately so that corrective action can be taken.

Of course, there are also risks with this solution. A poorly drafted document may only create confusion to the detriment of the employee and employer, if not an OSHA citation.  A document reminding employees of OSHA’s authority to conduct inspections may prompt a complaint with the agency which may not have otherwise been filed.  An OSHA Compliance Officer may even attempt to use the document against the employer in interview; without a management representative present, there would be no one to refute OSHA’s point of view.

This much is certain, however.  Preparation of non-management employees for OSHA interviews is a worthwhile undertaking, as long as it is done cautiously and with due attention to the risks involved.  The alternative is a leap of faith where the stakes are an OSHA citation with significant fines.