Minimizing Liability and Managing an OSHA Inspection



Government is making it harder and harder to run a business. Many business owners dread government’s voluminous regulations, including from the Occupational Safety and Health Administration (OSHA), an agency of the U.S. Department of Labor.

Founded in 1971, the agency has great power. Admittedly, government oversight is warranted for worker safety.

However, some of OSHA’s actions have been abusive for political gain, according to published reports. (See: GOP Rep: Obama’s OSHA is Targeting Non-Union Shops.)

Photo from the article: Union representatives join federal government safety inspectors on site visits to non-union businesses

OSHA is allowing union organizers from the Service Employees International Union (SEIU) to accompany OSHA inspectors to at least one unsuspecting non-union business.

In an interview with Fox news host Greta Van Susteren, Brent Southwell, CEO of Professional Janitorial Service, declared SEIU organizers surprisingly accompanied OSHA to the business on three occasions. 

Prior to the three visits, the company had not been cited with OSHA complaints. 

Mr. Southwell told Ms. Van Susteren:

We have no problem with OSHA coming in. Our problem is when they bring in the union representatives to try to intimidate us and basically using government agencies to try to force us to become union.

Ms. Van Susteren asked for comment from OSHA and the SEIU. SEIU declined to comment.

She published OSHA’s response:

In a written statement, OSHA saying in part allowing non-employee third party representative to accompany OSHA inspectors on walk around inspections is not a new OSHA policy. OSHA’s long-standing regulations interpreting the law the states that representative can be a third party if that third party representative is necessary to conduct a thorough investigation. 

In checking Google News — there are more than 10 thousand search results for OSHA. 

An IndustryWeek article, “Exploring the Limits of OSHA’s Inspection Authority: A Precursor to Exercising Your Rights,” caught my eye. It was written by an attorney, Michael Rubin, at Goldberg Segalla LLP 

What are your rights if you get a surprise visit from an CSHO (compliance safety and health officer)? 

Not to oversimplify, and I urge you to read the full article, here are excerpts from what Mr. Rubin wrote:

To Consent or Not to Consent

In most cases, the CSHO will arrive without a warrant. Since the CSHO is dependent on your consent for the inspection to proceed, this provides an opportunity (prior to consenting) to negotiate a reasonable scope and reasonable conditions for the inspection. If you succeed in this regard, it would usually be advisable to consent. Indeed, if you don’t consent, you risk the loss of any potential “good will” that could have otherwise been created during the process and also lose control over the scope of the inspection.

In addition, it may be a signal to OSHA that you have something to hide.

Importantly, an employer has the right to request that the inspection not proceed until a specific employer representative appears at the site.

Maximizing the Utility of the Opening Conference

The first stage of an OSHA investigation is the opening conference. At the opening conference, the CSHO is required to explain why the employer is being inspected, including whether it is a programmed or unprogrammed inspection. Unprogrammed inspections are usually of a higher priority and may be triggered by imminent dangers, catastrophes, fatal accidents, complaints, or referrals. If the inspection is due to an employee complaint, the CSHO is obligated to provide the employer with a copy of any written complaint (without the name of the complaining employee). The CSHO is also required to describe the intended scope and duration of the inspection.

Notably, Section 8 of the Occupational Safety and Health Act states that inspections must be conducted in a “reasonable manner” during “regular working hours.” In so keeping, you have the right to insist that a reasonable scope and protocol be established for the inspection.

Requests for Documents

With respect to any additional document requests, an employer has the right to (and should) request that the requests be put in writing and all be directed to a single management representative. This management representative should be the same person to provide the records to the CSHO. This is important and serves to manage and control the inspection.

Of course, any privileged documents should not be produced. Also, copies should be kept of everything produced.

Employer Involvement in the Walkaround

The walkaround is the actual inspection. During this phase, the CSHO will walk the site, gather evidence, and seek to identify potential safety and/or health hazards in the workplace. The CSHO is authorized during this phase to take photographs, videos, and measurements; collect environmental samples; and employ other reasonable investigative techniques. Importantly, both an employer representative and an employee representative have the right to accompany the CSHO at all times during the walkaround and duplicate any investigations conducted by the CSHO, including taking side-by-side photographs, videos, measurements, and samples. This should be done.

Notably, when an employer identifies an operation or condition as a trade secret or confidential business information, OSHA is required to treat it as such and keep the information confidential.

Restrictions on Employee Interviews

Although the CSHO is entitled to interview your employees as part of any inspection, there are certain restrictions–employees are not “fair game” to the extent you may think. First, a notable distinction exists between hourly employees and those in management. Although the CSHO may interview hourly employees privately (and may insist on doing so), an employer representative has a right to participate in all management interviews, in part because any admissions made by management may be attributed to, and used against, the employer.

In addition, hourly employees do have the right to request that a personal attorney or union representative be present during their interview. If honored by the CSHO, this would negate any private interview of the hourly employee.

Again, these are only excerpts. You are urged to read the full article. It explains OSHA’s inspection authority and your rights.

Mr. Rubin is special counsel in the OSHA and Worksite Safety Practice Group at the law firm Goldberg Segalla. He is co-editor of Goldberg Segalla’s OSHA: Legal Developments and Defense Strategies blog. He may be reached at mrubin@goldbergsegalla.com.

From the Coach’s Corner, more information on dealing with the government:

HR Tips to Avoid Legal Hassles with Immigration and Customs Enforcement — Employers have been having problems with the U.S. Department of Homeland Security’s Immigration and Customs Enforcement (ICE). ICE served 3,004 notices of inspection (NOI) in fiscal 2012.

Tips on Understanding the Mindset of IRS Auditors — An IRS audit is enough to make you tense with cold sweat in the palms of your hands. More businesspeople have complained to me about the mean-spirited treatment at the hands of IRS agents than any other federal agency. Worse, the agents’ frequent lack of common sense is shocking.

Government Warns Business in Ruling Against Costco on Social Media Policy — Many companies encourage their employees to promote their offerings and services on social media. But beware, it was bound to happen: The trend has caught the attention of the National Labor Relations Board (NLRB), which can dictate your social media policy.

Agency Provides Help for Small Business to Cope with Federal Government — Most small businesspeople are weary from overzealous government. A federal agency is doing something about it.

Don’t let Minimum Wage Mandates Ruin Your Business — Your cash flow, credit access, pricing and profit margins are all directly or indirectly at-risk with the proposed mandates to increase the minimum wage. Workers should be paid well, if they’re good performers.

“Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.”

-George Washington

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Author Terry Corbell has written innumerable online business-enhancement articles, and is a business-performance consultant and profit professional. Click here to see his management services. For a complimentary chat about your business situation or to schedule him as a speaker, consultant or author, please contact Terry.

President Obama Misses Mark Again, More of the Same



Sept. 9, 2011


President Obama is proposing superficial bandaids from political motivations that would accomplish little to solve the structural economic challenges afflicting the U.S.

America’s economy is barely holding together by pins and needles. It could tear completely apart with one more catastrophe. With its $447 billion plan, the Obama Administration has proven again it does not know how to stimulate growth in jobs. If the administration gets its way, a double-dip recession is inevitable — not economic recovery.

Yes, I’m all for roads and education. But I’m troubled. Why? My sense is that the administration is making recommendations for political reasons, and not economic patriotism. More on that later.

U.S. business has too little domestic demand for products. The list of concerns is long. America is no longer a manufacturing center. Television sets and computers are made in Asia. Cars and trucks aren’t selling.

Many big companies like General Motors are investing abroad and making more money there. Yes, ask GM about cars sales in China.

All of this means a stalemate in domestic job creation.

Extend unemployment insurance?

OK, 14 million Americans are jobless. Not to sound unsympathetic, but many workers are partly to blame by not adapting to the new digital age with new skills. There are countless unfilled jobs.

At what point does a helping hand become a handout?

Recessions weren’t kind to me. Long ago, my personal situation helped coin the phrase, corporate downsizing – 14 times. Yes, 14 layoffs. Yet, I always found ways for a sustainable income. It wasn’t always in my preferred industry. Sometimes, I turned to other sectors and got a sales job and worked my way back into management.

As a former mentor, famed broadcaster Del Sharbutt, once bluntly told me: “Every experience is a learning experience.” Reading between the lines, he was also telling me mental toughness was in order. What I eventually learned was that I needed an entrepreneurial spirit. Despite all the jobs, not to be gauche, but a CBS executive referred to my resume as a “rich background.” His comment spurred an even more intense entrepreneurial conviction.

That’s what America, American workers and the Obama Administration need.

The straw that stirs job creation – small business – can’t get credit and enough customers. Studies show most is not hiring nor will they for at least 18 months. Why? Again, there’s too-little domestic consumption.

Family budgets are strained. U.S. consumers are spending more but it’s more precious dollars on food and gas. Both are heavily imported. There isn’t any new drilling for oil and natural gas. So much of domestic consumer money is going abroad but it isn’t returning as a result of exports. The trade imbalance is still way out of whack.

Disingenuous spending

President Obama is calling for more stimulus spending. He apparently thinks spending another $140 billion on roads and schools will work. But my sense is that his proposal is aimed at benefiting the unions for political donations (see this EDITORIAL: How labor unions spend dues money).

Mr. Obama is showing he does not have Bobby Kennedy-like qualities (note this revelation: Dirty work between Obama, Teamsters). Do you recall the administration of John F. Kennedy when his brother, Attorney General Robert Kennedy, had his principled legal fight with the Teamsters in the 1960s?

Meantime, the president proposes to finance his proposed new stimulus with cutbacks in Medicare and Medicaid. It’s fallacious reasoning to think it’s best to spend more for union construction jobs while healthcare workers will lose theirs.

We already know about the devastation caused by his healthcare law. The majority of small businesses are apprehensive. Their workers and all patients face higher costs in their copayments and coverage.

Launching an infrastructure bank to lend money to local and state governments and financed privately?

Please. Government budgets at all levels are stretched too thin, as it is. Government credit ratings are backsliding. Doesn’t anyone remember the U.S. downgrade?

To expect these governments to repay the money isn’t productive, just as businesses fail when they borrow money just to stay in business. At some point, they have to repay the money, or else.

President Obama wants more business regulation – more government bureaucracy. Again, talk to the majority of businesses. You’ll get an earful.

He wants to tax the wealthy at higher rates. So how will they invest and hire workers? What’s their incentive to spend? The hospitality industry – from hotels to restaurants – is barely making it now. Sticking to the wealthy might make some people feel better, but it’s not a solution.

Payroll tax cuts won’t stimulate job growth and are a threat to future Social Security recipients for their retirement. The short-term benefit would be catastrophic for the long term.

There are more red flags, but you get the idea.

We waited weeks for President Obama to outline a new public-policy approach for economic recovery and job creation – in vain.

What we need is common-sense leadership and change from the White House, not politics. Remember the campaign promise? But nearly three years later, are we getting it? No, it’s more of the same politics. There’s no infrastructure being proposed for short-term or lasting recovery.

From the Coach’s Corner, instead of just complaining, this portal’s Public Policy section is filled with solutions.

“The problem with the federal government is that common sense is not necessarily common.”

– Terry Detrick

 

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Terry Corbell is a business-performance consultant and profit professional. Click here to see his management services (many are available online). For a complimentary chat about your business situation or to schedule Terry Corbell as a speaker, why don’t you contact him today?

Seattle business consultant Terry Corbell provides high-performance management services and strategies.