Do You Really Know How To Manage An OSHA Inspection?

Many articles on handling OSHA inspections provide the same basic guidelines and little explanation of why employers should take certain steps. You may already know to take photos whenever the Compliance Officer (CO) takes shots and to take notes. But do you know why to take those photos and what to look for? What do you need to note in order to challenge citations when they are issued six months later?

Plan In Advance
Every company site should have a number of managers who know the basic steps to take whenever any government investigator shows up. The most important step is for site managers to know whom to call to obtain guidance. No executive or in-house counsel will be pleased to learn of an investigation upon receipt of a citation.

At most, site management can deal with evacuating and protecting employees, and dealing with first responders. The company needs a system in place so that with one call the site manager activates corporate support, including legal and risk management guidance, assistance to employees and families, and media management. Set up this system and practice response. Do not assume that you will never face a fatality or catastrophe. Tornadoes, vehicular accidents, and workplace violence can strike any employer.

Make sure that management takes an OSHA inspection seriously. Many employers are unprepared for the aggressive approach now dictated by the current administration. OSHA is a great organization, but even seemingly minor-sounding citations can harm the business. In some industries, a single citation classified as “serious” can harm bidding opportunities. Most of the recent six figure citations have involved repeat violations of routine items such as a missing electric cabinet switch label, a damaged extension cord, partially blocked electric cabinet, or one employee who missed his annual training.

Each violation can serve as the basis for a repeat violation of up to $70,000 per item at ANY company location in any Fed-OSHA state for five years. No inspection is minor. And by the way, OSHA’s improved IT system will allow the agency to better track your corporation’s performance, even when the company operates under many names.

Manage The Inspection
Step one is to ask “why” OSHA is present. Many inspections are triggered by a complaint and OSHA must tell you the reasons. As of this January 2015, employers in Fed-OSHA states must report to OSHA every hospitalization for more than observation, as well as all amputations. An amputation can be as modest as a tip of a finger. These focused responses increase the probability of an OSHA visit.

In each of these circumstances, admit OSHA for the purpose of the complaint and limit the inspection to the scope of the complaint. OSHA will broaden the inspection if the officials observe hazards or if employees mention other hazards. But require OSHA to justify expanding the scope. Be courteous and professional with the Compliance Officer but know and exercise your rights. Always focus first on safety, but that attitude does not preclude making OSHA live by its own procedures.

Recognize that OSHA must establish: 1) an applicable standard; 2) a hazard; 3) employee exposure; and 4) that the employer knew of the violation or hazard, or should have known of it with the exercise of “reasonable diligence.” Make sure that a hazard exists. Measure fall distances, check guards, etc. The burden is on OSHA to prove these four elements, so check to see if OSHA can prove that any employees were exposed in the last six months or would reasonably be expected to be exposed in the normal course of business. Is the area isolated? Do employees work near the alleged hazard? How often do employees travel in that area? How long was the hazard present?

OSHA may not document the employer’s “knowledge” of a violation. Any supervising employee’s knowledge of a violation is “imputed” to the company, and even when OSHA cannot prove that a supervising employee knew of the issue, they can establish this element by showing that the employer should have known of the violation with the “exercise of reasonable diligence.”

So OSHA must prove that the employer didn’t enforce safety rules, training was inadequate or the employer made little effort to provide oversight. Show that the company did exercise this due diligence. Other important questions include how long a violation was present, when supervisory employees were last in the area, and whether the employer did any walk-arounds or inspections.

Take Your Time
Don’t be rushed and bullied about documents. Some documents such as OSHA Form 300s and MSDSs must be promptly provided, but you have the right to a reasonable amount of time to provide other materials. Review them. Consider if materials may be privileged or protected work product. Don’t volunteer self-audits, insurance and consultant reports or other similar materials without talking to counsel.

If documentation is weak, try to determine where on-the-job instruction occurred or where oral instructions were provided. Counsel may be able to use such information as defenses, to reduce the classification, or to build good will. Obtain legal guidance: remember that if you knew of a standard’s requirement and did not follow it, there is a possibility that OSHA might assert a “willful” classification.

In developing defenses dig, dig, dig. There are always more facts. Don’t delegate. Ask the questions yourself.

Exercise your right to sit in on or have counsel attend interviews of any employee who supervises employees because they can bind the company. If a fatality, project delay, or any ancillary legal matter is involved, explain to OSHA that an additional concern is with protecting the company in other legal arenas.

You have an absolute right to sit in with managers but you might as well show courtesy to the Compliance Officer. This is probably a time to involve outside counsel. You may also want to contact counsel about whether OSHA will define an employee as a supervisor. OSHA uses a broader definition than the NLRB, or the wage-hour division.

OSHA has the right to interview hourly employees in private, but you can briefly explain to the employees the reason that they are being interviewed, and that you appreciate their cooperation and to tell the truth. Sometimes it is okay to tell them the topics OSHA may discuss and that may allow a bit of briefing, but mainly encourage them to tell the truth. Ensure that employees know that you appreciate their cooperation with OSHA. OSHA is very sensitive to even a whiff of intimidation or threat of retaliation.

Multiemployer worksites present special challenges. When more than one employer is on site, OSHA can cite the employee’s employer (the “exposing employer”) and the “supervising” employer who was directing the work (such as at construction sites or for contingent workers) or the “creating” employer who generated the hazard, or the “correcting” employer who was responsible to address the hazard, or all of the above!

Unfortunately, it often seems that one employer on site will try to persuade OSHA of questionable facts and throw other employers under the proverbial bus. Be alert.

Push Back
Do go to the OSHA Informal Conference after citations are issued, and do contest all citations if you have reasonable arguments. Remember that OSHA focuses on safety and does not consider whether the Secretary can carry its burdens before a Judge, but their attorneys do recognize this reality. Negotiations may be fruitful, but don’t contest the matter if you have nothing to back up your claims.

So long as you ensure OSHA knows that you will and are addressing any hazards, they will understand that your decision is dictated by business necessity and does not show a disregard for safety.

Finally. Do not miss the contest period! And be aware that many of the “State-OSHA plans” have different appeal processes.

Employers Could Be Blindsided by Turnover

Your employees have struggled through the past few years of belt-tightening and downsizing all while being asked to work harder, smarter, or perhaps just longer. Experts now say there are signs of life in the job market and employees may now start doing what they have been dreaming about for years: quit. The problem is that most employers probably will not see it coming.

 

“Most companies are probably not fully prepared for all the…pent up turnover that is likely to come when the job market really turns around,” said David G. Allen, a management professor at the University of Memphis who has studied employee turnover.

 

Some employers seem to be complacent now as to IF their employees will be able to find a better job somewhere else. For as many bosses that have complained about how hard it is to find good workers, even fewer have paid much attention to keeping the good employees that they currently have.

 

“People are saying that they can’t find the right talent, and yet when they do they don’t take such good care of it,” said Sandi Edwards, Senior VP of AMA Enterprise, an arm of the American Management Association that helps companies improve their workforce.

 

Employers have not had to work too hard recently to keep good workers. The unemployment rate hit a high of 10% in the fall of 2009 as the nation was coming out of a recession and has continued to remain elevated even as the economy has slowly added jobs. The jobless rate stood at 7.7% in February 2013, with 12 million Americans actively looking for work.

 

This has left many workers grateful to just have a job with less focus on finding a new job even if they did not like their current one. The job market is steadily improving, but Allen cautions that it is not strong enough yet for employees to have the upper hand yet.

 

Some employers may be aware that the risk of losing their best employees is on the horizon, but they are not necessarily taking proactive steps to help safeguard against it.

 

A recent survey of 2100 CFOs found that 38% said retaining valuable staff was a top concern for the next year, but only 13% said improving morale and engagement was a top concern.  Paul McDonald, Senior Executive Director of staffing firm Robert Half International feels it is a mistake to not work harder to make employees happy. “The main reason people leave is unhappiness with management,” according to McDonald.

 

It is not necessarily a bad thing though for some unhappy employees to quit. Typically workers who are just there because they can not find a better job are not usually the best employees. They characteristically do not perform as well or they do not engage in things that falls outside of their job description.

 

Peter Hom, a management professor at Arizona State University, noted that the first employees to quit when the job market improves are usually the ones that you least want to lose since the most valuable employees are often the most sought after by others.

 

Many researchers argue that it is not just money that keeps workers loyal, although a nice pay package and good benefits help as well. Allen said that his research has shown that workers also place a large amount of importance on relationships with their colleagues, especially with bosses.

 

Smart companies need to make sure they are making their employees feel valued. If they are asking for more from them then they have to engage employees more and it does not have to be just in terms of money.