ENTERPRISE-WIDE ABATEMENT RULING RAISES STAKES OF OSHA INSPECTIONS!

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

A citation stemming from an OSHA inspection typically specifies (1) the hazards which must be abated by the employer, and (2) the deadline for abating the hazards.  For employers with multiple locations,  these abatement requirements have historically been limited to hazards at the location inspected by OSHA.  In recent years, however, OSHA has periodically sought to impose enterprise-wide abatement requirements even as to alleged hazards at locations not inspected by the agency.

Proposing broader abatement requirements for employers with multiple locations is not merely a remedial strategy of OSHA.  An employer subject to enterprise-wide abatement requirements is also vulnerable to future enterprise-wide inspections by the agency to  verify that the requirements are being followed.

A September 30, 2013 ruling by Administrative Law Judge William Coleman in Secretary of Labor v.  Delta Elevator Service Corp.  placed the legality of OSHA’s strategy in doubt. In rejecting OSHA’s request for enterprise-wide abatement,  Judge Coleman ruled that “while enterprise-wide abatement has occurred in [Occupational Safety & Health Review] Commission cases where the parties have agreed to such abatement in a voluntary settlement agreement … there is no Commission or other precedent holding that such abatement may be directed pursuant to the “other appropriate relief” clause in Section 10(c) of the [OSH] Act.”  He also noted: “… the requested relief in this case would require an order that (1) is not based on any work performed at a worksite where an inspection took place, and (2) is not the subject of any allegation contained in the citation …”

A December 23, 2015 OSHA news release, however, boasts of a new ruling which the agency now contends provides precedent for enterprise-wide abatement requirements.  In Secretary of Labor v. Central Transport, LLC,  Administrative Law Judge Carol A. Baumerich ruled that, under the “other appropriate relief” clause in Section 10(c) of the OSH Act, the “Commission has the authority … to  order  enterprise-wide relief in cases where appropriate.”

To be sure, OSHA’s news release may be overstating the importance of an un-reviewed decision by one Administrative Law Judge.   After all, Judge Baumerich specifically noted that Judge Coleman’s earlier 2013 ruling was “not controlling” as to her ruling.  Still, the underlying message of the news release is plain – OSHA will continue to seek enterprise-wide abatements from employers with multiple locations.  Indeed, OSHA may be emboldened to make such requests more commonplace.  Employers with multiple locations must thus consider that the financial stakes of an inspection may have just been raised by OSHA.

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DOS AND DONT’S FOR EMPLOYERS DURING AN OSHA OPENING CONFERENCE!

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

It is to an employer’s strategic benefit to be proactive in protecting its interests during the opening conference of an OSHA inspection.

DO Be Selective as to the Employer’s Representative at the Opening Conference

The employer should be represented in the opening conference by a management representative who is not only familiar with the inspection process, but also the measures which must be taken to protect the employer during the opening conference.

DO Address Purpose of Inspection

An employer should not allow an OSHA Compliance Safety & Health Officer (CSHO) to bypass or rush any discussion about the legal or factual bases for the inspection, even when the CSHO is armed with a search warrant.

  • DO Ask About Applicable  Exemptions: If the CSHO does not inquire about applicable exemptions to OSHA’s inspection or record-keeping requirements, the employer should do so if there is even an arguable basis for claiming an exemption.
  • DO Ask About Purpose of Investigative Inspection: If the CSHO does not explain the purpose of an investigative inspection with sufficient clarity or detail, the employer should press the CSHO for further information as to the issues to be investigated.
  • DO Take Time to Review a Formal Employee Complaint: If the purpose of the inspection is to investigate one or more formal employee complaints, the employer should review the complaints thoroughly before proceeding with the inspection.  A defective formal employee complaint may be grounds for challenging the inspection.
  • DON’T Challenge Coverage:  Although questions about an employer’s business are routinely part of the opening conference, an employer should not expect coverage to be a basis for challenging the legitimacy of the inspection.  

DO Define Scope of Inspection

An employer should endeavor to reach an understanding with the CSHO as to the exact scope of the OSHA inspection.

  • DO Read Search Warrant: Even where the scope of an inspection is defined by a search warrant, the employer should read the content of the warrant and strive to reach a consensus with the CSHO regarding any ambiguities in such content.
  • DO Define Extent of  Programmed Inspection: Even for a programmed inspection, for which a wall-to wall inspection of the employer’s entire worksite is generally authorized, the employer should strive for an understanding of the areas to be inspected.
  • DO Define Areas Encompassed by Investigative Inspection:  The CSHO may seek to conduct a wall-to-wall inspection even where such breadth is not necessary to an investigation.  For such an inspection, it may be incumbent upon the employer to propose, and if appropriate, insist upon a more limited inspection of the areas encompassed by the investigation.

DO Press for a Plan for Walk-Around Inspection

An inspection plan can help avoid an overly broad inspection which unreasonably disrupts the employer’s operations.

  • DO Address Route: At the opening conference, the employer and the CSHO should determine a logical route for the walk-around inspection. Amongst the considerations in determining the route should be (1) minimization of disruption of the employer’s operations, (2) the defined scope of the inspection, (3) limitation of plain view of operations outside the defined scope of the inspection, and (4) avoidance of repeat views of work areas.
  • DO Address Methods of Collecting Evidence: Determining methods anticipated by the CSHO can assist the employer in making preparations for collecting its own evidence during the walk-around inspection.
  • DO Address Timing and Length: If the employer representative or employee representative is needed elsewhere during the walk-around inspection, this issue and possible solutions can be addressed during the opening conference.

DO Press for an Interview Schedule

An interview schedule can help minimize the disruption of the employer’s operations.  Whether the timing, length, location or manner of employee interviews will unreasonably disrupt an employer’s operations may be affected by such issues as (1) the demands of the operations for which the employee is responsible, and (2) the ability of the employee to be away from his/her work station for an interview.

DO Memorialize in Writing List of Requested Records and Programs

A search warrant or subpoena may provide a specific list of documents to be produced in conjunction with the inspection. In the absence of a search warrant or subpoena, the employer should, to avoid misunderstandings or conflicting memories, (1) request that the CSHO provide a written list describing the specific documents to be reviewed, or (2) provide a written list to the CSHO, based upon documents verbally requested  by the CSHO, with a request for confirmation that the list is accurate and complete.

DO Address Trade Secrets       

As previously noted in the August 23, 2015 post entitled “How Trade Secrets Can be Protected in an OSHA Inspection“,  the CSHO should not be trusted to question the employer regarding trade secrets at the opening conference.  The employer must be prepared to identify with particularity (1) the trade secrets which it wishes to protect, and (2) the procedures which it requires to protect such trade secrets.

DO Conduct a Management Walk-Around Inspection During the Opening Conference 

While the opening conference is ongoing, other management employees should be conducting a quick walk-around inspection of the work site to (1) identify and correct any workplace hazards, (2) clean up any spills or debris in the employee work areas, (3) ensure that all employees are wearing personal protective equipment, and (4) ensure that no employees are in violation of safety and health policies.  To be sure, the CSHO may learn of this quick walk-around inspection during employee interviews. Avoiding first-hand viewing of hazards may be preferable to such second-hand reporting.

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

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

The opening conference of an OSHA inspection typically takes place in an office or conference room and can address several matters, the most important of which are (1) the nature of the employer’s business, (2) the nature of the employer’s workforce, (3) the purpose of the inspection, (4) any legal bars to the inspection, (5) the scope of the inspection, (6) the timing, length and manner of the inspection, (7) the documents to be reviewed and their location, (8) the employer’s trade secrets, if any, and (9) the benefits of prompt abatement of hazards discovered during the inspection.

What is the Nature of the Employer’s Business?

There are at least two reasons for OSHA to inquire about the nature of an employer’s business:  (1) OSHA may ask questions to determine whether the employer’s business is covered by the OSH Act; and (2) the nature of the employer’s business may determine the OSHA standards applicable to the employer.

What is the Nature of the Employer’s Workforce?

Since only employees are protected by the OSH Act, OSHA may inquire whether there are any independent contractors working on-site.

What is the Purpose of the Inspection?

OSHA should inform the employer as to the purpose of the requested inspection.  The purpose may be a programmed  inspection scheduled by the agency based upon certain selection criteria.  The purpose may also be investigative in nature as to (1) an employee fatality, inpatient hospitalization, amputation, or eye loss, (2) a formal employee complaint, (3) an informal complaint, (4) a referral, (5) hazards directly observed by OSHA at or near the employer’s workplace, or (6) hazards identified during a previous inspection.  If the purpose of the inspection is to investigate a formal employee complaint, the employer is entitled to know the content of the complaint, but not the identity of the complainant.

Are There any Legal Bars to an  Inspection?

One question which can be addressed at the opening conference is whether there are any grounds for challenging the inspection.  These grounds include (1) an applicable exemption to the inspection, (2) a defective formal complaint, or (3) a defective search warrant.  The opening conference can also determine whether a different employer should properly be the target of the inspection.

What is the Permissible Scope of Inspection?

The inspection of an employer’s entire worksite is generally authorized as to a programmed inspection and may be authorized by a search warrant.   For other inspections, the opening conference provides an opportunity to review a floor plan or map of the worksite to determine which areas will be included in the inspection.

What Will be the Timing, Length and Manner of Inspection?    

The opening conference also provides OSHA and the employer the opportunity to discuss the logistics of the inspection and how to proceed with minimal disruption to the employer’s operation.

What Documents Are to be Reviewed and Where are they Located?

At the opening conference, OSHA and the employer will generally discuss the documents to be reviewed as part of the inspection and their current location.  Where applicable, OSHA and the employer should try to determine whether any exemptions apply to the retention of injury and illness records.  See If the documents are located at a different location, arrangements will need to be made at the opening conference for their review.

Are There any Trade Secrets to Protect?

As previously noted in the August 23, 2015 post entitled “How Trade Secrets Can be Protected in an OSHA Inspection“,  the OSH Act provides for the protection of trade secrets which are within the scope of an OSHA inspection.  The opening conference is the opportunity for OSHA and the employer to reach an understanding as to how the employer’s trade secrets will be protected.  Still, it is incumbent upon the employer to identify the trade secrets and the areas at the worksite which contain or which might reveal these trade secrets.

What Happens if Easily Fixable Hazards are Discovered During the Inspection?   

At the conclusion of the opening conference, the employer should have an understanding from OSHA as to the benefits under the agency’s Administrative Penalty Policy of (1) correcting hazards identified during the inspection, and (2) correcting hazards within 24 hours of the inspection.