By Robert G. Chadwick, Jr.,  Partner, Freeman Mathis & Gary, LLP.

Suppose a plaintiff’s lawyer arrives unannounced at a private employer’s work site and asks for permission to collect evidence to support a potential future personal injury suit against the employer.  The employer’s decision would be a an easy one; the plaintiff’s lawyer would be sent on his way.  Absent a court order obtained during discovery in a civil suit which has already been filed, a plaintiff’s lawyer generally does not have the legal authority to enter the private property of an employer for the purpose of collecting evidence, if any, which can be used against the employer.  By that time, however, the employer is likely in a better position to defend against a personal injury suit than the date of the plaintiff’s lawyer’s unannounced arrival.

The surprise arrival of an OSHA Compliance Safety & Health Officer at an employer’s work site certainly presents a different situation for an employer.  After all, the Occupational Safety & Health Act (“OSH Act”) grants OSHA the legal authority to enter and inspect an employer’s place of work without any prior notice to the employer.  The purpose of OSHA’s visit, however, is similar to that of the plaintiff’s lawyer above – to collect evidence, if any, which can be used against the employer.  Rather than seeking such evidence to be used in a personal injury suit, however, the Compliance Officer is looking for evidence to support one or more citations against the employer.  In this respect, the inspection is the beginning of a civil or even criminal legal process in which the employer is suddenly and without warning on the defensive.  At stake are fines which can be up to $70,000 for each willful or repeat violation, and criminal penalties which can include imprisonment for a willful violation which results in an employee’s death.

To be sure, compliance with the OSH Act and OSHA Standards is the best defense to an OSHA inspection.  Even good faith efforts to comply with the OSH Act and OSHA Standards, however, do not always rid a work place of violations.  Furthermore, many citations are simply the product of faulty paperwork by an employer and not an actual unsafe condition in the workplace.

Fortunately for employers,  due process , statutory and procedural protections are available in the event of an OSHA inspection.  There is also no law which prohibits an employer from developing and maintaining contingency plans in the event of an inspection.  Other than compliance, education and preparation are thus the best defense strategies for an employer for minimizing the risk of a costly inspection.  It is the hope of this writer that this blog will assist employers in this education and preparation.

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