How to Handle an OSHA Investigation
By Thomas R. Wyatt You know the routine. An accident happens at the worksite, and immediately compliance officers from the Occupational Safety and Health Administration (OSHA) swoop down, looking to second-guess your company’s safety procedures and assess fines and penalties, including possible criminal penalties. Can anything be done?
Yes. The Fourth Amendment of the U.S. Constitution prohibits searches and inspections without a court-ordered search warrant, and that applies to OSHA as well. The right can be waived, however, if the employer consents to a warrantless inspection, even if he is unaware of his rights. OSHA is not even legally obligated to advise the employer of its right to insist upon a warrant. Thus, the second issue an employer should consider when faced with a phone call from an OSHA compliance officer is whether or not to insist upon a warrant. The first issue, of course, is to retain experienced counsel, who can help you with all the other issues.
It may or may not be such a good idea to insist upon a warrant. Among the factors that should be considered by the employer are the reason why OSHA seeks to inspect in the first place, i.e. the seriousness of the accident; whether OSHA is likely to find a violation if an inspection is conducted immediately; and how comprehensively OSHA intends to carry out the search.
There are many advantages to insisting upon a warrant. First, OSHA may not be successful in obtaining a warrant and may simply decide to abandon your case for other, possibly more pressing cases. The court may also narrow the scope of the inspection that OSHA can conduct. Of course, most obvious is the simple fact that the employer might be able to buy time to clean up its shop from many operations. Some opinions believe that a warrant should not be insisted upon, under the belief that OSHA could somehow get “irritated” and decide to increase the scope of the inspection. In my experience, large bureaucracies such as OSHA do not get “irritated.” To the contrary, depending on the type of accident that occurred, a stiff resistance might cause OSHA to “back off” to some extent, and pursue other avenues including settlement.
Once the inspection begins, the compliance officer is required by law to hold an opening conference, during which he must establish any ground rules covering the scope of the inspection. Make sure to keep a complete record of what occurs during the inspection. At this time, no less than at any time during the entire investigation, the employer must remain in control. Do not permit the compliance officer to have unsupervised access to a jobsite. Insist upon accompanying the compliance officer during his inspection, even if he protests.
After the inspection has occurred (with or without a warrant), the compliance officer will generally describe any hazards or violations he found on your premises. Be sure to make a record of any issues discussed, and be sure you fully understand the basis of any alleged violation. It cannot be overemphasized - never admit to any wrongdoing at any time during the inspection process. Again, contrary to some opinions, admitting guilt does not earn you any “points” with OSHA, and it will almost certainly be held against you if you decide to contest the citations.
An OSHA investigation is certainly not pleasant. However, it does not mean the end of the world is nigh. Proper preparedness and good counsel can help lead you through the valley of the shadow of death.
Got OSHA problems? In addition to his workers’ compensation litigation, Tom Wyatt has an extensive OSHA and intentional tort defense practice. Contact Tom for more information.
|
