How to Respond to an OSHA Investigation: A Summary & Manager's Checklist
Employers are often stunned when an OSHA inspector comes knocking and asks to conduct a surprise inspection. It's common for managers to wonder "What is OSHA here to do? What are the company's obligations? Do we have any rights? What should I do?" Below is a brief discussion of these issues.
I. WHAT IS OSHA & WHO ARE THE COMPLIANCE OFFICERS?
OSHA is a federal governmental agency empowered to issue work place-related safety regulations and enforce them. Their enforcement powers include issuing financial penalties and requiring employers to change workplace practices that have an effect on safety. Think of OSHA as having a “law-making" function, and also a “police" function.
OSHA Compliance Officers are the “safety police." Their job is to come to your company’s workplace to conduct investigations into safety-related legal violations. They report to Area Directors, who set inspection and enforcement goals.
II. WHY DOES OSHA WANT TO INVESTIGATE MY COMPANY?
OSHA may show up for a variety of reasons. Usually, one of these reasons is the trigger:
(i) An employee has filed a complaint about safety issues;
(ii) OSHA previously issued a citation and is returning to confirm that the company has complied with directives in the citation;
(iii) An employee has filed a complaint, in which he or she claims to be the victim of retaliation for having exposed, complained about, or objected to practices that violate OSHA regulations; or
(iv) OSHA has selected your company for an inspection “randomly" (or, at least without providing any specific reason to you).
III. CHECKLIST: WHAT TO DO WHEN AN OSHA OFFICER ARRIVES FOR AN INSPECTION
\* When a Compliance Officer arrives, they will usually ask for the facility manager. You should ask to see the Officer’s credentials and ask what the reason is for the inspection. If the inspection is the result of a written complaint, ask for a copy of it.
\* Usually the Officer does not have a warrant or subpoena, and therefore requires a manager’s consent. The manager must quickly decide whether to allow the inspector in. If the company does not have a pre-existing written policy about this, or the manager is unsure, the default decision should be to politely ask the inspector to come back at another time. The manager must then immediately seek the advice of an attorney with OSHA-related experience to plan the next step. This may also give the company time to prepare for the inspection. (Note: there are some instances in which OSHA can properly demand to come into the facility, without a warrant or your consent – primarily where there is an emergency situation or there is a violation in open view).
\* During the inspection, be extremely polite and professional at all times. Do not argue with or antagonize the Officer. The Officer has influence over how the matter resolves. The more respectful you are, the less harsh the Officer may be on the company.
\* Do not volunteer information. Answer questions truthfully (you cannot lie to a federal investigator). While being truthful, only answer what is asked.
\* The manager should ask to sit in on interviews of employees. (Although the Officer has the right to reject this request, you should still ask).
\* Have a manager escort the Compliance Officer during the entire inspection. Compliance Officers frequently see violations as they walk around (even ones they had not thought about before arriving at your worksite). Therefore, try to steer the Officer only toward what he or she is there to inspect, and away from other areas.
\* Identify any trade secret, proprietary, or confidential information to which the Officer may be exposed and inform the Officer that OSHA must treat it confidentially.
\* If your company has a very active work area, where there is a good chance of the Compliance Officer spotting violations, consider shutting down operations during the inspection.
\* The manager should document the Officer’s activities (e.g., who the Officer interviews, what equipment and areas the Officer inspects, and what measurements or samples are taken).
\* If the Officer takes samples, or performs monitoring (e.g. of noise levels or the air), or takes photos, the manager should perform the same procedures, in the same place, and at the same time. Ask that copies of the Officer’s test results and photos be sent to you.
\* The Officer will have a closing conference with the manager. There, the manager should: (i) ask for copies of all test results from monitoring or sampling done by the Officer; (ii) ask the Officer what conditions in the workplace caused the Officer to conclude that there is a violation; and (iii) ask the Officer what abatement methods he or she can suggest to correct the violation. Document everything that happens at the closing conference.
IV. CHECKLIST: WHAT TO DO AFTER THE INSPECTION
\* Consult with an attorney, experienced in handling OSHA matters.
\* If your company does not already have one, prepare a written protocol to follow when an OSHA Compliance Officer arrives at a worksite.
\* Be prepared for another inspection (e.g., correct any violations; ensure proper training is being performed; maintain all injury and other logs that OSHA requires; make sure employees are disciplined for safety infractions; ensure all OSHA and workplace safety posters are in place, etc.).
V. WHAT TO EXPECT NEXT
The Department of Labor (“DOL") will issue a Citation and Notice of Penalty. It will contain a list of alleged violations, and a summary of supporting facts. It will also set forth the proposed financial penalties sought.
You can ask to participate in an informal conference, where you will have the opportunity to try to settle the case. An employer’s aim is to reduce the dollar amounts of the penalties, remove penalties, and lower the classifications of penalties that are alleged to be repeat or willful.
If the matter does not settle, it will go to a trial-like hearing before an Administrative Law Judge. There, the DOL’s attorney acts as a prosecutor, and the OSHA Compliance Officer.
If your company takes any steps to retaliate (or that could be construed as retaliatory) against an employee who cooperates with the DOL, or who filed a complaint with the DOL, you should expect to be on the receiving end of additional legal action.