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

The Occupational Safety & Health Act (“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 in private with management and non-management employees. A previous posting on this blog has already addressed interviews of management employees.

An employer has a right to inform non-management employees of their rights and obligations during an OSHA interview.  OSHA legal experts generally agree this right should be exercised by an employer.  After all, questioning by a representative of the federal government can be an intimidating experience.  The employee may not know that he or she has the right to say no to the OSHA Compliance Officer; the OSHA Compliance Officer will likely not volunteer this information.  Intimidation and ignorance of employee rights risks inaccurate, confusing or incomplete answers which may lead to citations with significant fines. Knowledge can thus serve not only the employee, but also the employer.

There nevertheless are risks with undertaking to inform non-management employees of their rights and obligations during an OSHA interview.  First, an employee may misinterpret the undertaking as an indication the employer has something to hide.

Second, such an undertaking can be misinterpreted by an employee to be an effort at intimidation immediately prior to the interviews.  Such intimidation can itself be  a violation of Section 11(c) of he OSH Act which prohibits discrimination against an employee who exercises any rights afforded by the Act.

Third, such an undertaking can itself be the topic of discussion during the interviews. OSHA will likely become aware of the efforts of an employer to speak with its employees beforehand. This may prompt OSHA to change strategies and attempt to contact employees while they are away from work.

Fourth, such preparation may face logistical issues, especially if the inspection allows only a short time for briefing the employees. By the time an interview is requested, an employee may only be partially prepared or not prepared at all.

Still, OSHA legal experts are right about the importance of preparing non-management employees for private interviews during an inspection. So, how should an employer go about ensuring that these employees are adequately prepared without the inherent risks associated with last minute efforts?

This writer believes that a written explanation of non-management employee rights and obligations during an OSHA inspection may be one solution. This written explanation can be (1) included with the employer’s safety and health rules, (2) reviewed as part of a safety training session, or (3) posted with other employment-related posters.  The written explanation may also be distributed on the date of the inspection to serve as a reference guide in the event employees have questions during the interview.

A well-written explanation should address four areas: (1) OSHA inspections, (2) employee rights, (3) employee obligations, and (4) freedom from retaliation.

(1) OSHA Inspections: As to OSHA inspections, employees should be advised in writing:

• OSHA has the statutory authority to conduct inspections of the employer’s workplace.
• As part of an inspection, OSHA may ask to speak privately with employees at work.
• As part of an inspection, OSHA may try to contact employees away from work.
• The purpose of the written explanation is simply to inform the employees of their rights and obligations during interviews, and not to state any position of the employer with respect to the interviews.

(2) Employee Rights: As to employee rights, employees should be advised in writing:

• The employee’s right to speak to the OSHA Compliance Officer.
• The employee’s right not to speak to the OSHA Compliance Officer, absent a subpoena.
• The employee’s right to speak to the OSHA Compliance Officer at a time and place of his or her choosing.
• The employee’s right to speak to the OSHA Compliance Officer only through a translator if English is not his or her primary language.
• The employee’s right to speak to the OSHA Compliance Officer privately.
• The employee’s right to speak to the OSHA Compliance Officer with another person present. This person can be an employee representative, a management representative, a personal attorney or the employer’s attorney.
• The employee’s right to break or conclude the interview at any time.
• The employee’s right to sign a statement at the conclusion of the interview.
• The employee’s right to decline to sign a statement at the conclusion of the interview.
• The employee’s right to consent to being recorded during the interview.
• The employee’s right to refuse to consent to being recorded during the interview.
• The employee’s right to explain working conditions in his or her own words, rather than in words provided by the OSHA Compliance Officer.

(3) Employee Obligations: As to employee rights, employees should be advised in writing:

• The employee must be truthful with the OSHA Compliance Officer.
• The employee’s obligation to be truthful means he or she should not guess or speculate in response to any question from the OSHA Compliance Officer. An “I don’t know” answer is acceptable.  “I guess”, “I suppose”, “possibly” or “maybe” are not acceptable answers.
• The employee’s obligation to be truthful means he or she should not answer questions without an understanding of what is being asked.

(4) Retaliation: As to retaliation, employees should be advised in writing:

• The employer will not retaliate against an employee who exercises any of the rights set forth in the written explanation, or under the OSH Act.
• Any retaliation should be reported immediately so that corrective action can be taken.

Of course, there are also risks with this solution. A poorly drafted document may only create confusion to the detriment of the employee and employer, if not an OSHA citation.  A document reminding employees of OSHA’s authority to conduct inspections may prompt a complaint with the agency which may not have otherwise been filed.  An OSHA Compliance Officer may even attempt to use the document against the employer in interview; without a management representative present, there would be no one to refute OSHA’s point of view.

This much is certain, however.  Preparation of non-management employees for OSHA interviews is a worthwhile undertaking, as long as it is done cautiously and with due attention to the risks involved.  The alternative is a leap of faith where the stakes are an OSHA citation with significant fines.