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