1. © 2005 Snell & Wilmer L.L.P. SAFETY WORKS EXPO 2005 October 7, 2005 CONFRONTING MYTHS OF THE OSHA INSPECTION PROCESS SAFETY WORKS EXPO 2005 October 7, 2005 Charles P. Keller, Esq. Snell & Wilmer, L.L.P. (602) 382-6265 (602) 382-6265 ckeller@swlaw.com www.oshalawyer.net Charles P. Keller, Esq. Snell & Wilmer, L.L.P. (602) 382-6265 (602) 382-6265 ckeller@swlaw.com www.oshalawyer.net Mr. Mark Norton Assistant Director, Industrial Commission of Arizona Division of Occupational Safety & Health Norton.mark@dol.gov Mr. Mark Norton Assistant Director, Industrial Commission of Arizona Division of Occupational Safety & Health Norton.mark@dol.gov By:By: By:By:

2. © 2005 Snell & Wilmer L.L.P. 1.“I cannot be cited unless my own employees were exposed to the hazard.” May be true—single employer site.May be true—single employer site. Not true—multiple employer site.Not true—multiple employer site.  Did you create or control a hazard to which other employer’s employees were exposed?  Controlling employer—has a separate and distinct duty to ensure safety of all employer’s employees. Employer-employee relationshipEmployer-employee relationship Sole Proprietor-employee of corporationSole Proprietor-employee of corporation 1.“I cannot be cited unless my own employees were exposed to the hazard.” May be true—single employer site.May be true—single employer site. Not true—multiple employer site.Not true—multiple employer site.  Did you create or control a hazard to which other employer’s employees were exposed?  Controlling employer—has a separate and distinct duty to ensure safety of all employer’s employees. Employer-employee relationshipEmployer-employee relationship Sole Proprietor-employee of corporationSole Proprietor-employee of corporation

3. © 2005 Snell & Wilmer L.L.P. 2.“OSHA came to my jobsite and they shut it down.” Imminent Danger postingImminent Danger posting I have never had an ADOSH inspection result in a forced closing of business operations.I have never had an ADOSH inspection result in a forced closing of business operations. 2.“OSHA came to my jobsite and they shut it down.” Imminent Danger postingImminent Danger posting I have never had an ADOSH inspection result in a forced closing of business operations.I have never had an ADOSH inspection result in a forced closing of business operations.

4. © 2005 Snell & Wilmer L.L.P. 3.“Any evidence or conditions observed by a compliance officer prior to the beginning of an inspection is inadmissible” Not true.Not true. CO needs to obtain consent to conduct inspection of aCO needs to obtain consent to conduct inspection of a jobsite—implied or expressed (multiple employer site). 3.“Any evidence or conditions observed by a compliance officer prior to the beginning of an inspection is inadmissible” Not true.Not true. CO needs to obtain consent to conduct inspection of aCO needs to obtain consent to conduct inspection of a jobsite—implied or expressed (multiple employer site).

5. © 2005 Snell & Wilmer L.L.P. Exceptions to consent are plain view, areas open to the public and exigent circumstance.Exceptions to consent are plain view, areas open to the public and exigent circumstance. Many hazards are observed from offsite positions, i.e., scaffold, excavation, falls.Many hazards are observed from offsite positions, i.e., scaffold, excavation, falls. In the event of a refusal warrant can be obtained. In the event of a refusal warrant can be obtained. Exceptions to consent are plain view, areas open to the public and exigent circumstance.Exceptions to consent are plain view, areas open to the public and exigent circumstance. Many hazards are observed from offsite positions, i.e., scaffold, excavation, falls.Many hazards are observed from offsite positions, i.e., scaffold, excavation, falls. In the event of a refusal warrant can be obtained. In the event of a refusal warrant can be obtained.

6. © 2005 Snell & Wilmer L.L.P. 4.“ADOSH can just drive up and inspect my jobsite/plant at any time.” Need legitimate reasonsNeed legitimate reasons Emphasis programs Emphasis programs The CO must have probable cause. Probable cause comes in many forms:The CO must have probable cause. Probable cause comes in many forms:  Imminent danger  FAT/CAT  Complaints  Targeted inspections  Planned, programmed inspections 4.“ADOSH can just drive up and inspect my jobsite/plant at any time.” Need legitimate reasonsNeed legitimate reasons Emphasis programs Emphasis programs The CO must have probable cause. Probable cause comes in many forms:The CO must have probable cause. Probable cause comes in many forms:  Imminent danger  FAT/CAT  Complaints  Targeted inspections  Planned, programmed inspections

7. © 2005 Snell & Wilmer L.L.P. 5.“OSHA cannot interview my employees privately, they are my employees. I have a right to be present.” Not true.Not true. A.R.S. § 23-408, ADOSH has a right to question employees.A.R.S. § 23-408, ADOSH has a right to question employees. Laborers and non-management employees can be interviewed privately.Laborers and non-management employees can be interviewed privately.  Reasonable time  Can have union representation present  Have right to have interpreter 5.“OSHA cannot interview my employees privately, they are my employees. I have a right to be present.” Not true.Not true. A.R.S. § 23-408, ADOSH has a right to question employees.A.R.S. § 23-408, ADOSH has a right to question employees. Laborers and non-management employees can be interviewed privately.Laborers and non-management employees can be interviewed privately.  Reasonable time  Can have union representation present  Have right to have interpreter

8. © 2005 Snell & Wilmer L.L.P. Management employees have the right to be accompanied by a representative.Management employees have the right to be accompanied by a representative.  What is a management employee? Union can request separate opening and closings as well.Union can request separate opening and closings as well. Employer interference Employer interference Representative cannot interfere with interview process.Representative cannot interfere with interview process. Interview process may include written statements. Interview process may include written statements. Management employees have the right to be accompanied by a representative.Management employees have the right to be accompanied by a representative.  What is a management employee? Union can request separate opening and closings as well.Union can request separate opening and closings as well. Employer interference Employer interference Representative cannot interfere with interview process.Representative cannot interfere with interview process. Interview process may include written statements. Interview process may include written statements.

9. © 2005 Snell & Wilmer L.L.P. 6.“OSHA cannot issue a citation unless they see my employees exposed.” Observed, Unobserved & Potential exposure.Observed, Unobserved & Potential exposure. Evidence ofEvidence ofnon-compliant condition can came in many forms. 6.“OSHA cannot issue a citation unless they see my employees exposed.” Observed, Unobserved & Potential exposure.Observed, Unobserved & Potential exposure. Evidence ofEvidence ofnon-compliant condition can came in many forms.

10. © 2005 Snell & Wilmer L.L.P. 7.“The only reason OSHA is issuing this fine is to justify their existence—you know they are a self-funded group.” Not true.Not true. The ADOSH fines that are levied and collected are deposited in the State’s general fund.The ADOSH fines that are levied and collected are deposited in the State’s general fund. ADOSH can use no money collected as a result of enforcement action. ADOSH can use no money collected as a result of enforcement action. 7.“The only reason OSHA is issuing this fine is to justify their existence—you know they are a self-funded group.” Not true.Not true. The ADOSH fines that are levied and collected are deposited in the State’s general fund.The ADOSH fines that are levied and collected are deposited in the State’s general fund. ADOSH can use no money collected as a result of enforcement action. ADOSH can use no money collected as a result of enforcement action.

11. © 2005 Snell & Wilmer L.L.P. The entire Industrial Commission of Arizona is funded through a maximum three percent (3%) surcharge of workers’ compensation premiums paid by employers.The entire Industrial Commission of Arizona is funded through a maximum three percent (3%) surcharge of workers’ compensation premiums paid by employers. ADOSH also receives funding from Federal sources, as well. ADOSH also receives funding from Federal sources, as well. The entire Industrial Commission of Arizona is funded through a maximum three percent (3%) surcharge of workers’ compensation premiums paid by employers.The entire Industrial Commission of Arizona is funded through a maximum three percent (3%) surcharge of workers’ compensation premiums paid by employers. ADOSH also receives funding from Federal sources, as well. ADOSH also receives funding from Federal sources, as well.