We are back with Marvelous Manufacturing and Classy Consultants who are about to undergo OSH-Administration inspections.. ( Click here for last week’s post). Their owners and management, would like an idea of what they can now expect. So, assuming that genuine OSH-Administration inspectors (aka compliance officers) showed up at your business, what could you expect–at least in general terms? That’s our topic for this week–after the jump…
Believe it or not, employers facing OSHA inspections have a number of rights–before, during and after the inspection.That’s a good start for companies like Marvelous and Classy. What are some of those rights?
For openers, the Fourth Amendment of the US Constitution grants everyone freedom from unreasonable searches and seizures by government officials. That freedom applies to employers in the workplace, and includes OSHA inspections. The OSH-Administration therefore must have what is known as administrative probable cause to believe that one or more OSH-Act violations exists within that workplace before they can inspect. Marvelous and Classy’s CEO’s (or whoever they designate) have the right to demand to see an inspection warrant. The warrant establishes the probable cause, and therefore will indicate the suspected conditions. Do they have to demand the warrant? No. Some employers instead negotiate with the OSH-Administration, regarding reasonable scope of the investigation and waive the warrant. Some employers might ask for the inspector’s identification and call OSHA to verify that the person is an inspector and is in fact there on valid OSHA business. An employer can waive the warrant and consent to the inspection. What should Marvelous and Classy do at this juncture? My suggestion: They should each consult with counsel to determine whether they will demand a warrant, if so whether they will challenge it or whether they will consent to the inspection.
Assuming for the moment that neither Marvelous nor Classy have unions in their buildings, they have the right to exclude non-employee third parties from the inspection. Most often that would be a union representative in a non-unionized workplace. While the OSH-Administration takes the position that employees are entitled to designate a third party to act as their representative during the inspection, the plain language of the applicable standard clearly states that such third parties are not permitted, and allows employers to exclude such third parties from the inspection and challenge the warrant under those circumstances. What should Marvelous and Classy do if there is such a third party and either they or the OSHA inspector(s) insist on them being there? Again, consulting with counsel is a great idea. What are some (other) options? Marvelous and Classy can and probably should establish clear parameters as to: a) who will be responsible for that person’s safety; b) who will provide personal protective equipment if necessary; c) if appropriate, insist if that s/he be trained regarding any hazards that may be present (probably less of a consideration with regard to Classy); and d) insist s/he have necessary security clearance for any sensitive activities that may be in view and; e) insist on appropriate protection against any proprietary processes being revealed.
Note that neither inspection has begun–and each of these employers still have the right to an opening conference, during which they can: a) negotiate the scope of the inspection; b) ask questions about the purpose and probable cause justifying the inspection; c) try to set some parameters around how the inspection will proceed, such as document collection (e.g. on written request only), interviews (e.g. only if scheduled in advance), physical access to the workplace (e.g. with management escort present at all times; d) demand a copy of the complaint if it was initiated by an employee or former employee. In fact, the opening conference is often the most important part of an OSHA inspection.
Now the actual inspection begins, and Marvelous and Classy will have some important rights here, too, including: a) to be present at all times and phases of the inspection, including the “walk-around” with the compliance officer; b) to take photographs alongside the compliance officer, of whatever s/he photographs during the inspection; c) to be present during management interviews even if the interviewee doesn’t want an employer representative there (because statements by the manager will bind the company).
Once the inspection itself is done, the process is still not over–and Marvelous and Classy have additional rights. If OSHA issues citations, Marvelous and Classy can request hearings before an Administrative Law Judge to contest them. Since third parties such as union representatives and competitors can request the inspection files through a Freedom of Information Act (FOIA) request, employers, prior to providing certain confidential and proprietary information to OSHA, must designate the information as such, and OSHA will either refuse to provide that specific information to third parties or provide notice of the request, and who made it, and give the employer the opportunity the justify the claim of confidentiality.
Believe it or not Marvelous and Classy have still another catch-all, but important right: Section 8(a) of the OSH-Act says:
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 (emphasis added).
That means that Marvelous and Classy can push back if they feel that the compliance officer is attempting to conduct the inspection at an unreasonable time or in an unreasonable manner or if they feel the scope is overbroad. If the compliance officer attempts to conduct unscheduled management interviews, make overly burdensome document requests, or the like, Marvelous and Classy can negotiate for more limited document requests, advance scheduling and other similar considerations.
Well, at least we know now that Marvelous and Classy and you, if applicable, have significant rights in the event of an OSHA inspection. Above all, if you are about to be inspected, get on the phone with your attorney– and good luck! For the last installment in our OSHA mini-series regarding the OSHA guidance on transgender restroom access, tune in next week!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here.
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