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

A smart approach by the employer to an OSHA inspection can help mitigate the risks of costly citations and penalties. Although specific recommendations will be provided in later posts regarding each of the five components of an OSHA inspection (opening conference, records and programs review, walk-around inspection, employee interviews and closing conference), the following dos and don’ts apply generally to all components of the inspection.

DO Show Respect for Employee Health & Safety

Statements that the employer takes employee health and safety seriously certainly carry weight.  Still, it is important for an employer to avoid actions or inactions during an inspection which may betray a more callous attitude.  Amongst the types of statements which should be avoided by an employer are the following:

• “These OSHA Standards are Onerous.” Although many OSHA standards are indeed onerous, the inspection is neither the time nor the place to argue this point.
• “We are Safe by Industry Standards.” Even reasonable industry standards carry little weight with OSHA if they are contradicted by OSHA standards.  OSHA may see an employer which operates by industry standards rather than OSHA standards as an opportunity to set an example.
• “We are Safe, but the Paperwork is Overkill.” OSHA paperwork is indeed unduly burdensome, but the agency is a government bureaucracy not a private business.  This argument will get the employer nowhere.
• “We are First and Foremost a Business.” Although every employer understands the realities of capitalism, the CSHO is concerned only with employee health and safety.  A CSHO will be unimpressed by employer statements regarding the (1) the slim profitability or recent unprofitability of its operations; (2) customer demands; (3) ownership demands; (4) the costs of compliance with the OSH Act; or (5) the jobs which will be lost if the employer strictly complied with the OSH Act.

DO Show Respect for the Inspection Process

OSHA views the inspection as an essential tool to police employee health and safety. An OSHA inspection is neither the time nor the place to attack the process by which the OSH Act is enforced.  A disrespectful attitude toward the inspection can be viewed as indifference toward employee health and safety.  An employer should avoid statements to the effect that:

• “This Inspection is an Annoyance.”  At no time during an inspection should an employer indicate to OSHA that the inspection is a waste of time or a mere annoyance.
• “How Quickly Can this Inspection be Wrapped Up.”  Although concluding an inspection within a reasonable time period is a worthwhile goal, the employer should not unreasonably rush the CSHO or indicate that it has more pressing matters to attend to.  The CSHO will likely not respond favorably to impatience.

DO Regard the CSHO as a Respected Adversary, Not a Friend

The CSHO is not at the worksite to help the employer, the CSHO is there to look for OSH  Act violations and issue citations and penalties.  Some helpful hints in communicating with the CSHO include the following:

• DO Be Courteous and Professional. Antagonism toward the CSHO will gain the employer nothing.
• DON’T Leave the CSHO Alone.  The CSHO will seize any advantage allowed by the employer.  The whereabouts of the CSHO should be monitored and controlled by the employer at all times during the inspection.
• Where Applicable, DON’T Assume the CSHO is only Interested in a Limited Inspection. Programmed inspections will generally encompass an employer’s entire worksite.  Even where the basis for an inspection is limited in scope, the CSHO is looking for potential hazards in plain sight which may provide the basis of (1) a citation, or (2) an expanded inspection.
• DON’T Try to Help, Educate or Impress the CSHO. The employer should answer questions posed by the CSHO regarding its operations and safety and health practices, but should not otherwise try to help, educate or impress the CSHO by volunteering information or providing a demonstration of an operation or procedure.  To do so, risks: (1) providing the CSHO with additional questions to ask; (2) a citation for an unwittingly admitted or demonstrated OSH Act violation; and (3) a basis for expanding the scope of a limited inspection.
• DON’T Presume CSHO Will Fulfill Obligations to Provide Information.  There is information to which an employer is entitled as part of an OSHA inspection which should be communicated and respected by the CSHO.  The employer should not presume, however, the CSHO will fulfill this obligation.  It may be necessary for the employer to be assertive by inquiring regarding information to which it is legally entitled.
• DON’T Presume CSHO Will Fulfill Promises. A CSHO will not necessarily abide by promises made to the employer during the inspection.  The employer should thus not presume that a CSHO will fulfill a promise to (1) provide copies of evidence collected during the inspection, (2) waive a citation for a hazard corrected during the inspection, or (3) regard any conversation as being “off-the-record.”

Where Applicable, DO Manage the Scope of a Limited Inspection

Even where the basis for an inspection is limited in scope, the CSHO will not regard it as a priority to keep the scope of the inspection limited.  It is up to the employer to ensure that a limited scope is followed by the CSHO.

DO Assert Employer Rights

The CSHO will not regard it as a priority to observe the employer’s rights during an OSHA inspection.  It is up to the employer  to ensure that the CSHO observes these rights.  Employer rights during an OSHA inspection are addressed in greater detail in the following posts of this blog: (1) How Can Trade Secrets Be Protected in an OSHA Inspection? and (2)  What Does an Employer Generally Need to Know About the OSHA Inspection Process?

• Search Warrant Which Provides for an Unreasonably Disruptive Inspection. If  the timing, manner and method of inspection authorized by a search warrant would result in an unreasonable disruption of the employer’s operations, the employer should confer with the CSHO about alternative timing, means or methods.  Barring this option, the employer, in consultation with legal counsel, may wish to explore the possibility of a motion to quash the warrant.
• Search Warrant Which Does Not Adequately Protect Trade Secrets.  If a proposed method of inspection authorized by a search warrant would not ensure the confidentiality of the employer’s trade secrets, the employer should confer with the CSHO about alternative means or methods of inspection.  Barring this option, the employer, in conjunction with legal counsel, may wish to explore the possibility of a motion to quash the warrant.

DON’T Try to Manipulate the Inspection Process

The CSHO has been trained to recognize and get around efforts by an employer to manipulate and obstruct, rather than simply control, the inspection. An employer’s efforts to conceal hazards can also be revealed during interviews of non-management employees.  Efforts to manipulate an inspection are risky and can backfire and put the employer in a worse position.

DON’T Lie

Providing OSHA with untruthful information risks more citations and penalties, not to mention potential criminal prosecution if the employer makes a false statement, representation or certification in a document required by OSHA. 29 U.S.C. 666(g)

DON’T Discriminate, Threaten or Intimidate   

The employer should not threaten or intimidate any employee during an inspection to be silent or untruthful regarding work hazards.  The risk that the employee will reveal the employer’s conduct during an interview simply outweighs any benefits. Similarly, the employer should not discriminate or retaliate against any employee who has provided information to OSHA during an inspection. Such an action can form the basis of an independent claim under the OSH Act. 29 US.C. 660(c)

DON’T Self Incriminate

All  information provided by a management representative during an inspection may be used later by OSHA against the employer. Amongst the damaging admissions which should avoided during an inspection are the following:

• Knowledge of a workplace hazard before the inspection.
• Knowledge of others regarding a workplace hazard.
• Knowledge that a hazard violated the OSH Act.
• Knowledge that the hazard presented a risk of death or serious physical harm.

DON’T Trust that the Information Collected by the CSHO is Accurate or Unbiased

The CSHO conducting the inspection may be inexperienced, unprepared or even biased. The information obtained during the walk-around inspection and employee interviews may inaccurately show violations of the OSH Act, where no violations actually exist.

DO Conduct a Simultaneous Inspection

An OSHA inspection provides an employer an opportunity to conduct its own inspection of the workplace to (1) correct previously unknown hazards, and (2) gather alternative evidence in the event the evidence gathered by the CSHO is inaccurate.  Although the results of the employer’s inspection will not be privileged from a subpoena, the alternative is to trust the information obtained by the CSHO. As set forth above, this is not always a wise option.