Enemy at the Gate: Why and How Best to Prepare for & Manage an OSHA Inspection

Transcription

1 Enemy at the Gate: Why and How Best to Prepare for & Manage an OSHA Inspection Eric J. Conn Chair, OSHA Workplace Safety Practice at Conn Maciel Carey PLLC

2 Eric J. Conn / ERIC J. CONN is Chair of the OSHA Workplace Safety Practice Group at Conn Maciel Carey, where he focuses his practice 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, from criminal prosecutions to appeals of citations Writes & speaks regularly on safety & health law issues Conducts safety training & compliance counseling 2

3 Agenda OSHA s Enforcement Heavy Philosophy Inspection Rights of OSHA, Employees, and Employers Prepare in Advance for an Inspection by OSHA Manage an On- Going OSHA Inspection 3

4 Enforcement-Heavy Philosophy 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 4

5 Total Fed OSHA Inspections 41,000 40,000 39,000 38,000 37,000 36,000 35,000 34,000 33,000 40,993 40,961 40,614 39,004 39,228 38,667 36,

6 Total Violations Issued 100,000 87,663 96,742 85,514 78,723 78,196 75,000 68,404 50,000 25,000 0 FY09 FY10 FY11 FY12 FY13 FY14 6

7 % of In Compliance Inspections % 23% 24% 24% 26% [VALUE]% 20 0 FY 09 FY 10 FY 11 FY 12 FY 13 FY 14 7

8 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 workplace w/in a few years) OSHA Today: Treats workplaces in a corporate family as 1 workplace Looks back 5 years at employers OSHA enforcement records Proactive Philosophy (hand select past violator as target for inspection) 8

9 Focus on Repeat Violations Serious 58,845 61,018 67,052 62,115 57,112 56,661 49,616 Repeat 1, % 2, % 2, % 3, % 3, % 3, % 2, % Willful

10 210 Significant Cases (Penalty of $100K+) FY 07 FY 09 FY 11 FY 12 FY 13 FY 14 10

11 Egregious / Million Dollar Cases FY 05 - FY 09 FY 10 - FY 14 11

12 Goals of the Inspection Control Flow of Information Minimize Business Disruption Cast Workplace in Best Light Identify Potential Problems Early 12

13 The OSHA Inspection 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. 13

14 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 14

15 Employees Inspection Rights Right to file a Complaint Right not to be discriminated or retaliated against Participation Rights: Opening Conference Walkaround Private interviews Closing Conferences Informal Settlement Conferences Access to inspection records 15

16 Employer s Inspection Rights Reasonable Inspection at Reasonable Times Demand Inspection Warrants Hold Opening Conference Access a copy of Complaints Protect Trade Secrets/CBI Accompany the CSHOs during walkarounds Participate in Management Interviews A Closing Conference Challenge Citations 16

17 Pre-Inspection Checklist Review applicable special emphasis programs and compliance directives Review OSHA s Field Operations Manual Audit written programs Implement comprehensive Safety Programs Think beyond a single facility Implement applicable safety programs: Examples: Confined space entry; Housekeeping; Preventive Maintenance, Emergency action plans; and Lockout/Tagout, Process Safety Management 17

18 Pre-Inspection Checklist 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 18

19 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 19

20 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 - Scope of inspection 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. 20

21 Stages of an OSHA Inspection Opening Conference Walkaround Inspection Employee Interviews Closing Conference Citations Issued/Contested 21

22 Opening Conference CSHO arrives and displays credentials Opening Conference begins: Employee reps. may participate CSHO explain purpose of inspection CSHO discuss scope and duration: Wall-to-Wall Complaint / Referral NEP / LEP Accident Resolve warrant issue CSHO requests documents/information 22

23 Opening Conference Practitioner s Tips: Insist on an Opening Conference Select location & participants in advance Ask for purpose/scope of inspection Introduce Inspection Team Explain Document Production Protocol Establish Interview Protocol Arrange for daily close-out meetings Arrange to screen photos/video for Trade Secrets/CBI 23

24 Document Production Insist on written requests for documents: Except: OSHA Recordkeeping 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 Review for responsiveness, privilege or trade secret/cbi 24

25 Document Production Keep a copy of all documents produced Maintain a Document Control Log 25

26 Walkaround Inspection Scope depends on nature/purpose of inspection Always accompany the CSHO Employee representative permitted to accompany Take side-by-side images Act professionally but protect your rights Fix hazards identified by CSHO but do not admit violations Require CSHO to follow safety rules 26

27 Walkaround Inspection Practitioner s Tips: Escort OSHA at all times Gather information about focus of inspection Control flow of information Ensure safety of CSHO Ask for notice of sampling Take detailed notes Hold daily close out meetings Ask about concerns Ask about interviews and tasks for next visit 27

28 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 28

29 Hourly Employee Interviews OSHA demands privacy for hourly employee Per FOM and experience Union Representation Right to private interview belongs to employee Consider a Choice of Representative Form Do not coerce or intimidate employees Do not discriminate against employees 29

30 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 30

31 Prepare Employees for Interviews Explain Witness Rights Give Interview Tips Review Substantive Issues Voluntary interview Right to reasonable schedule Right to be represented Right to not be recorded Right to not sign/write/draw Right to examine documents Right to take a break any time Always tell the truth Listen carefully Answer only the question asked Short, concise answers Stick to the facts Do not guess or speculate No silence is awkward Don t let CSHO answer for you 31

32 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 32

33 Closing Conference Correct obvious errors/misimpressions Identify alleged violations you already corrected Request time to offer additional information Offer no commitments about abatement Ask about citation classifications and penalties Take detailed notes 33

34 Citations Issued / Contested OSHA has 6 months to inspect, draft report, and issue citations Delay caused by warrant/ subpoena does not toll 6- month limitations period Citations delivered by hand or certified mail, return receipt requested Press Releases No citation may issue... after the expiration of 6 months from the occurrence of any violation. - Section 9(c) of OSH Act 34

35 In response to a citation, employers may: Pay the fine and accept the citations Request a variance Resolve citations at Informal Settlement Conference File a Notice of Contest, and then: Negotiate Formal Settlement with OSHA s attorney (Solicitor of Labor) Proceed to hearing Post-Citation 35

36 Post-Citation Considerations Manageable Penalty amount Abatement clear / feasible Risk of Repeat violations Competitive Disadvantage Impact on Civil Litigation Insurance premiums Qualify for SVEP Negative Publicity Contracting / Pre-qualification 36

37 QUESTIONS? 37

38 Contact Information ERIC J. CONN Chair, OSHA Workplace Safety Group Conn Maciel Carey PLLC Washington, D.C