This post is not a comprehensive “guide” to handling OSHA Inspections, but rather is a few observations about reoccurring issues we see in OSHA inspections. These comments are most appropriate to a fatality or more involved OSHA inspection.
1. No matter what you’ve experienced in the past, do not treat OSHA inspections as “no big deal.” You will be in danger of “Repeat” violations of up to $70,000 an item for five years at all of your locations.
2. HR, General Counsel and Corporate Safety Directors hate “surprises,” such as learning of a OSHA inspection days or weeks later when there is little that they can do. If you are a site manager, always notify HR, Legal or Upper Management when OSHA arrives . . . not when you receive a citation.
3. Set out in writing at every location who to notify when OSHA or any investigator comes on a company site . . . and regularly remind frontline managers.
4. Involve counsel when OSHA first comes on site; even if only to obtain basic guidance.
5. “Manage” the OSHA inspection. Most Compliance Officers are decent professionals who are committed to safety. Nevertheless, we encounter employers who felt bullied, and meekly followed even unreasonable orders. Cooperate and be professional, but pause . . . think about each “request” . . . determine “when” you need to respond . . . and do not lose control. Everyone’s interests are best served by responding in an orderly and thoughtful fashion.
6. Dig – dig – dig. There always seems to be more facts, especially in death or catastrophic cases. Don’t rely on others to ask your questions . . . even if you write them out. Follow leads and tangents. Investigate and disregard or confirm “speculation.” People remember facts later; you may have to revisit witnesses.
7. Especially on a multi-employer site, the first dealings with OSHA are critical and may set the tone. You probably don’t know many facts at this stage, so don’t speculate. Don’t feel compelled to volunteer every positive safety effort ever carried out . . . you may unintentionally raise additional issues or expand the scope of the inspection. Do build a rapport, obtain a list of materials requested, and be responsive.
8. On a multi-employer site, expect at least one employer on site to grab the OSHA Compliance Officer as soon as he or she comes on site, and start “selling them a story.” It does not pay to actively throw another employer “under the bus,” because OSHA can cite everyone. Nevertheless, it is common and can skew the inspection. See my recent post, “It’s Not Our Fault! It’s Their Fault!”
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About mavity2012
I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues.
Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession.
I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors.
I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values.
Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral.
As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
Howard Mavity 