By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje, PLLC.
The 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 with both non-management and management employees.
What Rights Do Management Employees Have as to OSHA Interviews?
Absent a subpoena or search warrant providing otherwise, a management employee generally has the right to:
- Consent to an interview with OSHA.
- Provide information to OSHA without threats, retaliation or discrimination by the employer.
- Refuse to consent to any interview by OSHA. Although OSHA has the authority to conduct interviews, it does not alone have the power to compel interviews.
- Refuse to be interviewed without an interpreter if English is not the employee’s primary language. No employee need consent to an interview the content of which is foreign to the employee.
- Refuse to consent to a private interview by OSHA. The employee may condition his or her consent to an interview upon the presence of another individual, including another management employee, personal legal counsel or company legal counsel.
- Refuse to consent to an interview by OSHA absent the ability of the employee to conduct his or own audio recording of the interview.
- Refuse to answer any question by OSHA. The employee thus has the right to refuse to answer any question which (1) is outside the scope of the inspection, and/or (2) asks the employee to incriminate himself or herself as to criminal conduct.
- End the interview at any time for any reason.
- Refuse to sign a post-interview written statement prepared by OSHA.
- Refuse to consent to audio or video recording of the interview by OSHA.
- Refuse to provide private contact information to OSHA.
What Can’t a Management Employee Do in an OSHA Interview?
An employee can face criminal prosecution for providing false information to OSHA.
What Rights Does an Employer Have as to OSHA Interviews of Management Employees?
Absent a subpoena or search warrant providing otherwise, an employer generally has the right, as to interviews of management employees, to:
- Inform the employees of their interview rights.
- Attend the interviews.
- Require that the interviews take place at a time and place which do not unreasonably disrupt the employer’s operations.
- End an interview with an employee which, due to its length, unreasonably disrupts the employer’s operations.
- Notify OSHA of trade secrets revealed during the interview which must be protected.
What Can’t an Employer Do as to an OSHA Interview of a Management Employee?
As to even a management employee, an employer cannot:
- Threaten an employee before an interview by OSHA.
- Discharge, discriminate or retaliate against an employee who has been interviewed by OSHA.
What Types of Questions Does OSHA Ask of Management Employees?
Typical areas of inquiry by OSHA during an interview of a management employee include:
- Identifying and contact information.
- Position and responsibilities.
- Efforts by the employer to comply with the OSH Act.
- The employer’s health and safety program, including the frequency and content of safety and health training and meetings.
- Personal knowledge as to workplace hazards.
- Personal knowledge of whether the hazards presented a risk of death or serious injury to employees.
- Personal knowledge as to whether hazard violated the OSH Act.
- Knowledge of other management employees as to workplace hazards.
What Should be Done in Preparation for an Interview by OSHA of a Management Employee?
Before an OSHA interview, both the employer and the employee should become familiar with the follow dos and don’ts:
- DON’T regard the Compliance Safety & Health Officer as a friend. OSHA is asking questions to determine if the employer should receive a citation and fines.
- DON’T volunteer information. Volunteering information risks (1) providing OSHA with additional questions to ask, (2) a citation for an unwittingly admitted violation, or (3) a basis for expanding the scope of an otherwise limited inspection. Don’t be goaded into volunteering by long pauses.
- DON’T guess. No employee should ever resort to speculation about anything during the interview. Speculation may be accepted by OSHA as fact.
- DON’T answer presumptive but inaccurate questions. When did you correct this hazard, is a question which presumes there was a hazard to begin with.
- DON’T answer questions which exceed the scope of a limited inspection. Answering such questions may open the door to a broader inspection.
- DON’T disclose the contents of communications with legal counsel. These communications are privileged and disclosure may waive the privilege.
- DO respect OSHA’s questions and the interview process. Impatience with OSHA may be regarded as indifference to the safety of workers.
- DO become familiar with the aforementioned rights and obligations.
- DO memorialize the content of the interview with OSHA with either an audio recording of the interview or meticulous notes. OSHA should not be trusted to accurately recount the content of the interview. After all, OSHA’s agenda is not necessarily to exonerate the employer.
- DO identify any information disclosed during an interview which is a trade secret. The failure to identify information as a trade secret may waive legal protections. See How Can Trade Secrets be Protected in an OSHA Inspection?(August 23, 2015)
- DO avoid self-incrimination. Amongst the dangerous questions which call for self-incrimination are: (1) How long has this hazard been here? (2) Have there been any close calls due to the hazard? (3) Who knows about this hazard? (4) You know this is a violation, right? (5) You know someone can be seriously injured because of this hazard, right?