Preparing for and Managing an OSHA Inspection November 2, 2012 Eric J. Conn Head of the OSHA Practice Group at Epstein Becker & Green, P.C.

Agenda  Why Employers Must Prepare Now for an OSHA Inspection  OSHA Enforcement Initiatives and Trends  Preparing in Advance for an OSHA Inspection  Managing an On-Going OSHA Inspection

Why Employers Must Prepare Now for an OSHA Inspection

Why Prepare Now for an Inspection Significant increase in enforcement High costs of inspections, enforcement and abatement Minimize exposure to citations Cast workplace in best light Improve safety Too late to prepare once OSHA arrives

Increased Enforcement 100+ new CSHOs More citations Increased penalties More criminal cases Spike in significant/egregious cases New enforcement initiatives Added special emphasis programs Expanded scope beyond single workplace

Increased Enforcement Field Operations Manual amended: Doubled minimum penalties Look back for Repeats increased from 3 to 5 years Halved penalty reduction for size Look back for clean history reduction increased from 3 to 5 years Maximum 30% penalty reduction at informal settlement conferences

Follow-up Inspections/Repeat Violations OSHA historically: Treated workplaces as individual, independent establishments Limited its review of employers’ OSHA records to 3 years Reactive Philosophy (less likely to revisit workplaces within a few years) OSHA historically: Treated workplaces as individual, independent establishments Limited its review of employers’ OSHA records to 3 years Reactive Philosophy (less likely to revisit workplaces within a few years) OSHA now: Treats workplaces in a corporate family as 1 workplace Looks back 5 years at employers’ OSHA enforcement records Proactive Philosophy (hand selects past violators as targets for inspection) OSHA now: Treats workplaces in a corporate family as 1 workplace Looks back 5 years at employers’ OSHA enforcement records Proactive Philosophy (hand selects past violators as targets for inspection)

Proactive Targeting Philosophy Increased use of National and Local Emphasis Programs Combustible DustAmputations Nursing and Residential Care Facilities Primary Metal Industries PSM Covered Chemical Facilities Construction & General Industry Falls

Proactive Targeting Philosophy

Increase in Repeat Violations from 2006 to 2010

Increase in Penalties from

Preparing for and Managing an OSHA Inspection

Goals of the Inspection Control Flow of Information Minimize Business Disruption Cast Workplace in Best Light Identify Potential Problems Early

Sec. 8(a) of the OSH Act: “OSHA may inspect at reasonable times any workplace during regular working hours and at other reasonable times within such reasonable limits and in a reasonable manner.” The OSHA Inspection

OSHA’s Inspection Rights Right to inspect workplaces (with probable cause/violations in plain view) No Advance Notice Right to inspect records Right to collect physical evidence Right to conduct interviews

Employees’ Inspection Rights Right to file a Complaint Right not to be discriminated and retaliated against Participation Rights: – Opening Conference – Walkaround – Private interviews – Closing Conference – Informal Settlement Conference – Access to inspection records

Employer’s Inspection Rights “Reasonable Inspection” at “Reasonable Times” Demand a warrant Hold Opening Conference Receive a copy of the formal Complaint Accompany CSHO during Walkaround Participate in Management Interviews Protect Trade Secret/CBI Insist on a Closing Conference Challenge Citations

 Designate Inspection Team - Spokesperson- Walkaround Representative - Escort- Union/Contractor Liaison - Photographer- Document Coordinator - Sampler - Interview Representative  Train Inspection Team on: – Who to contact – Inspection rights of OSHA, employers, and employees – OSHA Standards – Controlling information flow Pre-Inspection Checklist

 Designate and audit walkaround routes  Provide inspection tools:  Camera/Video Camera  Contact List  Document Control Log  Sampling Tools  Copy of OSHA’s FOM  Document Labels  Choice of Rep. Forms  Cover Sheets  Determine warrant/consent philosophy Pre-Inspection Checklist

Warrant or Consent? 4th Am.: “The right of the people to be secure in their houses, papers and effects, against unreasonable searches and seizures shall not be violated and no warrant shall issue but upon probable cause….” Benefits of Warrant: Risks of Warrant: – Restraint on OSHA - Potential retaliation – Passage of time - Lose control of inspection Benefits of Consent: Risks of Consent: – Appear cooperative - Inspection scope may expand – Easier to manage – Minimize business disruption Practitioner’s Tip: Waive the warrant requirement and consent to an inspection, but only after negotiating an acceptable scope.

Stages of OSHA Inspection Opening ConferenceWalkaround InspectionEmployee InterviewsClosing ConferenceCitations Issued/Contested

Opening Conference CSHO arrives and displays credentials Resolve warrant issue Employee reps. may participate CSHO explain purpose of inspection CSHO discuss scope and duration CSHO requests documents/information

Opening Conference Insist on an Opening Conference Designate in advance the location and who will participate in Opening Conference Ask CHSO the purpose & scope (if not volunteered) Prepare list of individuals to notify Introduce management and inspection teams Explain your document production protocol Set up procedure for arranging employee interviews Arrange for daily close-out meetings Arrange to screen photo/film for trade secret or CBI

Document Production Insist on written requests for documents: –Except: OSHA 300 Logs/300A Forms Voluntary vs. Subpoena Do not create new documents Do not leave documents in plain sight Do not volunteer information –Except: Without more information, OSHA will misunderstand a fact to your detriment Responsive, privileged or trade secret/confidential business information

Document Production Keep a copy of all documents produced Maintain a Document Control Log

Walkaround Inspection Management representative should accompany CSHO Employee representative permitted to accompany Act professionally yet protect your rights Take side-by-side photos or videos Fix hazards identified by CSHO ASAP but do not admit violations Require CSHO to follow safety rules

Walkaround Inspection Escort OSHA at all times – Ensure safety of CSHO – Gather information about focus of inspection – Control flow of information Ask for advance notice prior to sampling Take detailed notes Hold brief meeting at end of each day – Ask about concerns – Ask about interviews and tasks for next visit – Consider proactive presentations Inspection Findings

OSHA Inspection Interviews Arrange through interview procedure Pre-select office or conference room Stop and Talk vs. Interview – 5 Minute Rule – OSHA must be reasonable Voluntary vs. Subpoena

Hourly Employee Interviews OSHA demands privacy for hourly employee –FOM –Union Representation –Right to private interview belongs to employee –“Choice of Representative” Form Do not coerce or intimidate employees Do not discriminate against employees

Management Interviews Supervisor’s knowledge imputed to employer No impromptu management interviews Participate in all management interviews – Right belongs to employer, not the witness Prepare all management witnesses

OSHA Inspection Interviews Explain Rights of Witness Provide Interview Tips Prepared Witness

Closing Conference Held at close of inspection – May occur weeks after on-site inspection CSHO explains post-citation rights CSHO communicates findings: − Standards allegedly violated − Bases for alleged violations − Possible abatement and abatement dates − Usually will not share classification or penalty

Closing Conference Take detailed notes Correct errors and misimpressions Report alleged violations already corrected Request time to offer supplemental information and documents Do not make abatement and/or abatement date promises Ask CSHO about classifications and penalties

Eric J. Conn (202) ERIC J. CONN is Head of the OSHA Practice Group at Epstein Becker & Green, where his practice focuses on all aspects of occupational safety & health law: Represents employers in inspections, investigations & enforcement actions involving OSHA, CSB, MSHA, & EPA Responds to and manages investigations of catastrophic industrial, construction, and manufacturing workplace accidents, including explosions and chemical releases Handles all aspects of OSHA litigation, including appeals of citations and negotiating settlements that minimize the effect of enforcement on civil actions Conducts safety training & compliance counseling

QUESTIONS?

Preparing for and Managing an OSHA Inspection November 2, 2012 Eric J. Conn Head of the OSHA Practice Group at Epstein Becker & Green, P.C.