What To Do When OSHA Knocks
Because workplace inspections by the Occupational Safety and Health Administration are not everyday events, many employers do not know how to properly handle an OSHA inspection and are unaware of their fundamental rights.
When an OSHA compliance officer (CO) arrives at your workplace, he will identify himself and present official credentials. Whoever is in charge of safety should be called immediately. Although it's not common, there have been instances of CO impersonations; you are entitled to call the local OSHA office to verify the legitimacy of the officer.
You also are entitled to know the reason for the inspection (e.g., programmed, emergency, employee complaint, anonymous complaint, etc.) and the scope of the inspection (e.g., specific hazard, department, wall-to-wall). If the inspection is the result of an employee complaint, you are entitled to see a copy of the complaint, with the employee's name blocked out.
Under the Fourth Amendment to the U.S. Constitution and the U.S. Supreme Court case of Marshall vs. Barlow's Inc., an employer has the absolute constitutional right to bar OSHA from conducting a workplace inspection without an inspection warrant from the federal courts. Notwithstanding this important constitutional right, many employers choose to waive it because OSHA normally can obtain the warrant easily and generally will return with it within just a few days - sometimes as quickly as the following business day.
Employers should give strong consideration to turning the CO away, however, if the company safety officer temporarily is unavailable, outside contractors are temporarily on site or short-term production conditions would make an inspection particularly disruptive. Some employers have a written policy specifying when an inspection warrant will be required of OSHA.
The InspectionThe inspection consists of four general parts:
- Opening conference
- Records and written safety program review
- Workplace tour
- Closing conference
The scope of the workplace tour is governed by the nature of the inspection and, in the final analysis, by the scope of the inspection warrant, if one was required. Even if the scope of the inspection is limited, however, anything in "plain view" of the CO is fair game and may be cited properly. During the tour, the CO has the right to make diagrams, take measurements, take photos, take environmental samples, etc. The employer has the right to accompany the CO during the tour in both union and nonunion workplaces.
After the tour, the CO holds a closing conference with the company representative to discuss preliminary findings, hazard abatement issues, and related topics.
CitationsIt is a rare OSHA inspection that does not result in a citation of some kind. Typically, you will receive the citation by mail approximately one to two weeks after the closing conference. At this time, you should consider involving your labor attorney, if you have not done so already. The citation will list each violation (including the precise standard violated and a description of the workplace violation), the proposed penalty and the proposed abatement date. The various types of violations include serious, other ("nonserious"), willful and repeat. Willful and repeat violations involve large fines, up to $70,000 each. But even serious violations involving smaller fines of up to $7,000 each must be considered carefully, with respect to timely abatement and avoidance of future Willful or Repeat violations.
You have the right to contest the citations, penalties and abatement dates within 15 days. Plus, you also have the right - prior to expiration of the 15 working-day period - to an informal conference with the OSHA area director. This right to an informal conference almost always should be exercised since, at the very least, contested issues can be clarified and, at best, the case can be settled with citations eliminated, combined or reduced to lesser categories. In some instances, the abatement date can be lengthened and penalties reduced substantially, particularly if you have a good OSHA inspection history.
To achieve the best results, you should carefully prepare for the informal conference by reviewing the written OSHA standards cited, marshaling the facts, collecting relevant documentation, reporting full and complete hazard abatement when that is relevant.
If citations are not resolved at the informal conference and a notice of contest is necessary, a formal administrative process commences. You will need assistance from a labor lawyer experienced with OSHA in order to successfully challenge an OSHA citation, because OSHA will be represented by attorneys who specialize in prosecuting such actions.