It’s a Monday morning at your job site. Just like any other Monday. Traffic was annoying, but tolerable. You only had one no call/no show. Just an average day…until someone in a grey OSHA Polo shirt with a clipboard shows up. This is why people hate Mondays. What should I do?
1. Wait for your Attorney
Unless the OSHA inspector has produced a court-issued warrant, you are not required to grant them access to the site. However, it is fairly easy for an inspector to obtain an ex parte Instead of demanding a warrant, have the inspector quietly wait outside the site while you contact your attorney. Then inform the inspector that you will allow him or her on the premises once your attorney arrives. If the inspector does not wish to wait, inform them that they may seek a warrant, but that you will not permit them on the premises without one. If the inspector later obtains a warrant, have your attorney on standby to participate in the inspection.
2. Require Credentials
Before proceeding with any part of the inspection, require that the inspector present his or her credentials. Record the information on the credentials for your records.
3. The Opening Conference
The inspector will hold an opening conference with a contractor representative, the contractor’s attorney, the safety officer, and any employee representative, such as a union steward. During this time, request that the inspector present a clear scope of the areas and issues to be addressed during the inspection. Once you find out the scope, you should consider whether there are any relevant subcontractors to include. If the inspection is due to a complaint, the inspector must provide you with a copy of the complaint. Once you understand the scope of the inspection, quietly excuse your safety officer so he or she can discreetly “prepare” the inspection route. During the opening conference, you should identify any areas in which confidential information or trade secrets may be of concern. OSHA inspectors have an obligation to maintain the confidentiality of any proprietary information and can be fined up to $1,000 and imprisoned for one year if they reveal any such information.
4. The Walk-Around
The contractor representative, the contractor’s attorney, and any relevant employee representatives are entitled to accompany the inspector on the walk-around. Although inspectors have broad inspection authority, keeping the inspector to the areas outlined in the opening conference is desirable.
You should plan the inspection route so that it is focused solely on the area of interest, bearing in mind that the inspector has “line of sight” authority to vary outside of the areas identified in the opening conference. You are not required to take the most direct route, so plan accordingly. During the walk-around, you should mimic all documentation made by the inspector, taking the same photographs and videos from the same angles and, if possible, taking the same environmental samples.
Designate a management employee to accompany you on the walk-around solely for the purpose of taking notes—they should write down every comment and question, in addition to making a note of everything inspected. Inspectors frequently will engage in ad hoc interviews of the employees on the production floor. If at all possible, try to coordinate break times to eliminate or reduce this opportunity. If the inspector approaches an employee and tries to engage the employee, remind the inspector that he or she does not have a right to interrupt work, but that interviews can be scheduled during a break.
5. The Interview
The inspector will have a preliminary list of interviews when he or she arrives at the facility. It is likely that after the opening conference and walk-around, and during the initial interviews, this list of employees to interview will grow. You are entitled to have your attorney present for all management interviews. Often, the OSHA inspector will argue that you are not entitled to have an attorney present at supervisor interviews. Prior to the interview process, you should establish the reasons for classification of supervisory employees as managers entitled to attorney representation. You will not be entitled to have your attorney present for any non-managerial employee interviews. Review the personnel files for all interviewees and locate all documentation of safety training received.
6. Record Review
Employers are required to produce certain records for review during an OSHA inspection. First, all records required to be kept by law must be produced (e.g., 300A Logs for injuries and 301 Forms for incident reports). Second, employers will be required to produce any documents related to the inspection (e.g., maintenance and training records related to relevant pieces of equipment). Make copies of all documents provided to OSHA for your own inspection file.
7. Closing Conference
OSHA inspectors frequently, but not always, will conduct a closing conference with the contractor representative and the contractor’s attorney. During the conference, the inspector will discuss a timeline for the report, including when any possible citation will be issued. The inspector also will discuss any possible follow-up visits. If a closing conference is not offered, you should request one so that you can ask what concerns the inspector might have.
8. What Next?
After the OSHA inspection has been concluded, the contractor likely will have to wait several weeks or months before receiving a notice of citation.
Once the OSHA inspector inevitably issues a citation, regardless of whether or not the contractor intends to contest the citation, the contractor should create an abatement plan in order to establish a timeline and cost estimates. Within 15 days of receipt of the citation, the contractor must decide whether it will engage in an informal conference to negotiate a lower citation, appeal the citation, or pay the citation.
It is highly recommended that contractors work with counsel to develop a clear strategy for disputing the citation, either if they contest the citation or if they attempt to bargain for a lesser fine at an informal conference.— Geoffrey S. Trotier
Geoffrey S. Trotier is a Shareholder in the Labor and Employment Law Section at von Briesen, s.c. and practices in the firm’s Milwaukee office. Trotier assists businesses of all sizes in diverse labor and employment issues. He is licensed to practice law in both Wisconsin and Minnesota and can be reached at 414-276-1122 or at http://www.vonbriesen.com.