BY: Alexa Bomersbach, Marketing Specialist, CICB
This article appeared in the March/April 2023 issue of Wire Rope Exchange.
At CONEXPO-CON/AGG 2023, CICB hosted a Breakfast with the Experts event. This function included a presentation from Michael Rubin, an OSHA Defense Attorney at Ogletree Deakins, a law firm representing employers of all sizes across many industries. Michael’s topic was, “Act Now: OSHA Can Visit When Least Expected,” where he discussed strategies to prepare for an OSHA inspection. In this article, we are going to recap highlights from his presentation, which is crucial information for business owners, managers, and supervisors to know.
So far in 2023, OSHA has increased its number of inspections and citations. During informal settlement conferences, OSHA is now negotiating less, which means businesses are more likely to pay the citation penalties. These fines are costly; for “serious” violations, a business can expect to pay up to $15,625 per violation. “Willful” and “repeat” violations may cost up to $156,259 each. Willful violations that contribute to a worker fatality also have the potential for a criminal referral.
The key emphasis on OSHA fines is per violation. Sean Starkey, a CICB Senior Instructor and Inspector, uses his former experience in construction to educate his students. He recalls working at a jobsite that received an OSHA inspection.
“When OSHA came to the jobsite I worked at, they inspected every crane we had,” he recalls. “Each crane must have all three powerline electrocution warning stickers. For each missing sticker, it was a $13,000 fine. A single sticker that was inexpensive to replace cost my former employer tens of thousands of dollars.”
In addition to OSHA fines, there are several indirect costs that come with being issued a violation. A company can lose their insurance, their reputation and employee morale will decline, contracts can be cancelled, and valued customers may seek out alternate vendors.
It is important to prepare for an OSHA inspection to avoid these fines, as OSHA will show up when least expected. OSHA will show up to a jobsite when there is a severe injury/illness reported by employers, anonymous worker complaints, or there are referrals of hazards from other federal, state or local agencies, individuals, or the media. OSHA also has programmed inspections for specific high-hazard industries.
There are six steps in the OSHA inspection process: opening conference, document requests, walkaround, interviews, closing conference, and citation/litigation.
When OSHA shows up to your jobsite, employers need to think (and appreciate) that litigation has begun. Employers and employees should know their rights, because OSHA is not a law enforcement agency and does not have to read employers any Miranda rights. Anything management says can be used against the employer in an OSHA enforcement action.
The employer should ask to see the compliance officer’s badge and/or credentials. The inspector should tell the employer why they are there, what and where the potential hazards are, and what their plan of action is. Since the Fourth Amendment applies and inspectors usually show up without a warrant, OSHA cannot enter without the employer’s consent; this is an important tool to know but use it wisely. If an employer refuses to consent and insists that OSHA obtain a warrant, the inspector is likely to return and give the employer no benefit of the doubt.
Michael recommends using consent as a negotiation tool. For example, the employer representative might tell the inspector that the company is “inclined to consent but can’t” until and unless the inspector agrees to certain things – for example, the Safety Director arrives on site, the inspector agrees to limit the inspection to a certain area, and/or OSHA won’t interview any managers on that particular day, i.e., the first day of the inspection. As Michael states, “This will signify to the inspector that you understand your rights and require the inspection be conducted on a level playing field.”
When it is time for the opening conference to begin, employers should ask for the conference to be held in a “safe” place, where an inspection protocol is agreed upon.
A safe place is considered a conference room in which there is limited opportunity to view actual work. If an OSHA compliance officer is able to view a jobsite during this conference, they will observe and take notes of unsafe practices.
When discussing the inspection protocol, the employer should address as many aspects of the inspection as possible, so there are no surprises – for the employer or inspector.
After the opening conference has concluded and the compliance officer moves onto the document stage, give the required information at the appropriate time. Document demands should be put in writing and nothing should be produced on the spot; save the OSHA 300 logs. Documentation should not be offered up until requested, as any additional information can be used against the employer. Documentation is important for many reasons, one of which is that documents are necessary to prove the unpreventable employee misconduct defense. Notably, to succeed in that defense, the employer must provide documentation of their work rules, training, audits to prevent violations, and employee write-ups when rules are not being followed.
Around the time the inspector may ask for documents, the inspector will commence the walkaround. The inspector will physically walk the site and note any areas reflecting violations. The employer should designate an employer representative to accompany the compliance officer everywhere the officer goes.
“One subtle point is that the individual accompanying the compliance officer should insist that the inspector wear proper PPE,” Michael states. “This shows that the company takes safety seriously, which may influence the inspector’s view of the company and, ultimately, may result in a better outcome.”
The inspections must be reasonable; the only areas to be inspected are the areas involved in the incident during regular working hours. OSHA does have the right to collect evidence such as photos, videos, samples, and employee statements.
As the employer guides the compliance officer, they should control the flow of information. The same rule that applies to documents applies to inspections: only state information that OSHA requests, when they request it. Any additional information offered verbally can be used against the employer. With that being said, it is important to make strategic decisions. If the employer feels they are being treated unfairly, they should assert their rights, but they must do so professionally and make a positive impression.
While the inspection is ongoing, ensure that business disruption is minimized. All employees should remain calm and continue business as usual. If everyone begins panicking, it can create a negative outcome when the compliance officer makes their final decision. Additionally, if a violation is in plain sight, it can expand the scope of the inspection. If the compliance officer points out a violation, the employer should immediately correct it without admitting fault.
During or after the walkaround, the OSHA inspector will likely request to interview the employer and employees. Generally speaking, any management interviews should be scheduled for a future date (do not schedule interviews on the first day when the compliance officer arrives). Hourly and non-supervisory employees can have representation, but only if they ask for their own attorney or representative. OSHA can insist on a private interview for a non-supervisor, which is why it is important to prepare all employees for OSHA interviews.
Once the investigation is concluded, OSHA will have a closing conference, where violations will be discussed, and citations will be issued.
After a business receives a citation, they can request an informal conference within 15 working days from receipt of the citation. They can also submit a Notice of Contest, which also needs to be done within 15 working days from receipt of the citation.
As mentioned in the beginning of this article, OSHA is becoming stricter during informal conferences. This means that if a company attends an informal conference in hopes of reducing a fine or removing a violation, it may face serious resistance.
The best way to reduce citations and violations is to be prepared for an OSHA inspection. Employers should document all formal training, employee acknowledgment of policies, and write-ups. All employees should have practice interviews, should OSHA arrive at a jobsite. A checklist should be made on how to respond if OSHA shows up. CICB offers formal training that serves as documentation for OSHA. Additionally, they provide Compliance Evaluations, where they will inspect a jobsite and provide an unbiased analysis of the business’s current standing, so that a business understands their current liabilities. Should there be items to correct, CICB will help develop a plan of action.
Employers should look to create a relationship with counsel who focuses on defending against OSHA enforcement actions. Michael Rubin is a great example of someone you can call to answer your questions and assist if needed.
Headquartered in Houston, Texas, CICB is a veteran-owned company that provides customized solutions for lifting operations across the world through training, inspections, and support services. CICB is known as the Subject Matter Expert Team that the crane and lifting industry engages as an essential partner for safe and effective practices in planning, supervising, executing, and evaluating crane and lifting operations. Visit www.cicb.com to learn more.