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

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


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.

Checklist – 10 Legal Basics for New Entrepreneurs

Thinking about legal matters can be tedious when you have a lot of details on your plate. But laws and regulations are important when establishing and operating your company.

Every region has different laws and regulations — here are some of the fundamentals:

1. Give enough thought to your legal structure. You have several options ranging from sole proprietorship and partnership to S corporation.

You must consider all the implications – your tax situation, access to profits, amount of paperwork, and liability.

ID-100208147stockimages2. Keep good records. Be sure to have a good recordkeeping system. 

To save time and energy, use good accounting software such as Bookkeeping, Quickbooks, Sage Peachtree, or Simply Accounting.

But each is different. Make sure you check out all the options to make certain your business needs are met.

You might consider off-site storage. Most small businesses are ignoring all the hype about the cloud. In fact, a study shows open source technology is preferable to the cloud.

But if you must, practice good risk management in selecting the best cloud storage provider.

3. Agreements. A paper trail for all transactions is vital. Honest people can be well-intentioned but memories can fade.

Non-written agreements can be valid but very difficult to enforce if you’re dealing with questionable characters.

4. Be up-to-date on laws and regulations that affect your industry and business. You can be hit with a myriad of issues – workers’ compensation, health and safety, environmental, immigration and taxes.

They can be very expensive lessons. For example, in case of problems, it helps to understand the mindset of IRS auditors, avoid EEOC discrimination suits, and avert legal hassles with Immigration and Customs Enforcement

5. Be careful in signing leases and other agreements. You can easily be locked into long-term agreements. Read the agreements carefully.

A big frustration for businesspeople is lease agreements for office or retail space, and financing and leasing business and commercial equipment. Commonly found in the fine print, evergreen clauses are designed to keep customers committed to an agreement beyond the original term. You’ll even encounter these agreements in the purchase of antivirus software. In most cases, you can managing evergreen clauses for your benefit.

6. Your intellectual property needs protection. Don’t assume that an original idea is protected. You must register your intellectual property.

Depending on the situation, this means even registering a trademark for your branding slogan or logo design, or patent. In some states – for regional protection – you can register trademarks economically.

For more complex matters, here are six patent tips.

7.  Be mindful of the intellectual property of others. That goes for graphics, images, pictures, songs and other media.

Depending on the situation, do a public domain search or a trademark or patent search – even before choosing a business name.

8. Avoid relying solely on those stationery store agreements and forms. You can purchase the forms, but customize them for your own purposes.

If there’s any doubt, have an attorney review the forms.

9. Three professionals could be invaluable for you. That means a good attorney, tax accountant or CPA and insurance agent. Research them carefully.

By the way, if you need professional liability insurance, here are four tips to save money.

10. Remain current on laws and regulations. Become a voracious reader and/or join an effective local business association. You have three entities with which to contend: City and county, state and federal governments.

From the Coach’s Corner, more recommended reading:

“People are getting smarter nowadays; they are letting lawyers, instead of their conscience, be their guide.”

-Will Rogers


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.

Photo courtesy of stockimages at

Why Uncertainty Continues for U.S. Business and Workers, Alike

Updated Sept. 6, 2015

Reasons include 11 states have more welfare recipients than job holders in this era of entitlement

Developments indicate the U.S. has lost its way. There’s no hope for beleaguered businesses and workers unless effective measures are implemented immediately. 

The economy created only 173,000 jobs in August, 2015.

Job creation remains well below the pace needed to reemploy all the workers displaced during the Great Recession. Twenty-three million Americans remain unemployed or under-employed. The average workweek is only 34.6 hours.

David Castillo DominiciObamaCare is both a fiscal and life-and-death nightmare. Some 6 million Americans have lost their insurance policies, employers are forced to cut the hours of workers to stay in compliance and premiums have skyrocketed for individual policyholders.

There have been 10 failed promises by Mr. Obama, including whether Americans can keep their policies, stay with their doctors, and save money on their premiums.

Lack of economic growth has been trending for a long time.

For instance, the last jobs report for 2012 by the Bureau of Labor Statistics (BLS) showed job growth was barely keeping pace with the population growth. 

The BLS also listed the professions with the highest and lowest unemployment rates. The highest unemployment rates are in construction, sales and transportation. The lowest unemployment rates are in finance, healthcare and social services.

Involuntary part-time workers

Also, earlier in December 2012, the BLS reported 8.2 million Americans were under-employed – they had to settle for part-time work. Unfortunately, that’s twice as high as the number of involuntary part-time workers in 2006.

Yes, the last BLS report of an increase of 155,000 jobs that month was welcome, but that was still pitiable news about the so-called Obama recovery. The number of jobs created in December was actually less than the month before – there were 166,000 new jobs in November.

Only 1.84 million jobs were created in 2012. There was no improvement over 2011 when Mr. Obama’s economy only produced 1.84 million jobs.

At such a mediocre pace, the pre-Great Recession success won’t be attained until 2019. That’s terrible news for the millions of unemployed and involuntary part-time workers.

“I’m here to tell you, some time in the next couple of months, we’re going to be creating between 250,000 jobs a month and 500,000 jobs a month.”

-Joe Biden, at Pennsylvania fundraiser, April 23, 2010

Conference Board’s 2 cents

What did the nation’s major employers say about this fiscal quagmire in 2012?

“The current moderate pace of hiring could be sustainable if companies believe that economic growth is poised to accelerate a bit in the second half of the year as the fiscal drag wanes and the housing recovery strengthens,” said Kathy Bostjancic, director of macroeconomic analysis, for the Conference Board.

The Conference Board is an association comprising about 1,200 public and private corporations from 60 countries.

“The key to boosting the labor market is stronger demand – a task made slightly more difficult with new higher withholding rates,” she added. “Additional uncertainty surrounding the next round of political wrangling over the fiscal budget also leads businesses to be hesitant in hiring new workers.”

Her bottom-line: “Weakened business and consumer confidence doesn’t bode well for any acceleration in the hiring trend.”

Fiscal Cliff deal

Americans failed to get good results from the Fiscal Cliff deal cut by Congress and the president. All it did was create higher taxes for individuals earning $400,000 and couples making $450,000. Many of those are small businesspeople – A.K.A. employers.

So nothing was achieved.

The nation’s debt is more than $17 trillion and climbing. A two-year budget deal was reached in December 2013, but the heavy spending will continue.

In 2012, the House of Representatives passed a budget and sent it to the Senate, where it was ignored. The Senate, under Senate Majority Leader Harry Reid, hadn’t approved a budget in more than three years.

Messrs. Obama and Reid are oblivious to the fact that red ink always follows poor planning.

Further, instead of showing an interest in putting a halt to the heavy spending and the $17 trillion debt ceiling, Mr. Obama and Democrats are signaling they’ll seek more tax increases.

So look for more business angst and waste – in money and time – instead of real progress.

Escalating entitlement mentality

Workers and businesses are increasingly burdened – having to underwrite an entitlement mentality. Why?

Eleven states have more people on welfare than they have working. That was revealed in the Nov. 25, 2012 issue of Forbes by writer William Baldwin. (See: Do You Live In A Death Spiral State? – Forbes)

The 11 states:  California, New York, Illinois, Ohio, Maine, Kentucky, South Carolina, Mississippi, Alabama, New Mexico and Hawaii.

For every 100 workers in California, there are 139 residents are drinking from the welfare trough. Is it a coincidence that seven of the 11 states backed Mr. Obama in the election?

Avalanche of new regulations

Federal agencies are required by law to announce their proposed regulations that affect the economy by each April and October. This process allows dozens of bureaucracies to circumvent oversight by Congress.

Guess what?

If you’re a businessperson coping with the shortcomings of the Obama Administration, you’ll be shocked by two developments:

Firstly, the Obama Administration ignored the law. It released its 2012 agenda for regulations on the Friday just before Christmas. That meant relatively few people would even notice the furtive, onerous administration charade because of the holidays.

Secondly, the government’s Web site has introduced more than 5,500 new regulations comprising thousands of pages. The regulations will affect nearly every industry.

The American Action Forum estimates the aggregate cost to implement the regulations will be $123 billion.

The Obama Administration’s morass shows questionable priorities in other ways. As of this writing, some 50 percent of the deadlines – for implementing ObamaCare and the Dodd-Frank law – have been ignored or missed.

No wonder business and workers, alike, are apprehensive. No business would succeed if it was operated like Mr. Obama and Democrats conduct their affairs.

From the Coach’s Corner, see solutions by a noted economist here.

“I’m here to tell you, some time in the next couple of months, we’re going to be creating between 250,000 jobs a month and 500,000 jobs a month.”

-Joe Biden, at a Pennsylvania fundraiser, April 23, 2010


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.  

Photo courtesy of David-Castillo-Dominici at

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