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1 • Importance of Being Prepared • Before OSHA Arrives • During an OSHA Inspection • After OSHA Leaves • Informal Conference • Contesting Citation 2 • Goals to effectively manage an OSHA investigation • Minimize liability and disruption to production • Present the facility in the best light possible • Maintain positive employee relations • Preserve the relationship with local OSHA office 3 Administrative Liability o Citation penalties: • Serious – Maximum $7,000 • Willful/Repeat – Maximum $70,000 • Failure to Abate – Maximum of $7,000 Each Day • Egregious – Per Instance Violation 4 • What is at stake? • • • Civil penalties Abatement costs Criminal conviction/penalties • Misdemeanor with a maximum of 6 months imprisonment and maximum of $250,000 for individuals and $500,000 for the organization • Civil liability • Can be used as evidence of negligence • Employee relations 5 • Negative Publicity • • • • OSHA Press releases “Regulation by shaming” Presumed guilty Creates impression of dangerous place to work • Workers Compensation Costs • In some states citations can increase the award by 100 percent. 6 Severe Violator Enforcement Program o Certain criteria must be met in order to be placed into the SVEP. o OSHA can inspect all worksites simultaneously or over several months. o You can litigate and have qualifying criterion withdrawn either at trial or through settlement negotiations. 7 • Assess Hazards, Prepare Plan, and Train • Assess hazards (including review of past injuries and illnesses, and inspections) and make an inventory • Make a plant-wide safety plan with input from top management, front-line management, and hourly employees • Train everyone; then follow the plan 8 • Consider whether or when you will require a warrant before permitting entry • How will you deal with employee representatives • Determine who is to be notified when OSHA comes • Determine who will be the contact person with OSHA on all aspects of the investigation 9 Opening Conference Walk-Around Closing Conference 10 • Review credentials of compliance officer • Learn the purpose of the investigation • Request copy of complaint if one was made • Contact appropriate company official and/or counsel 11 • Why is OSHA investigating? • • Imminent danger Catastrophic and fatal accidents • Eight-hour reporting requirement (fatality or hospitalization of three or more employees) • • • Employee or other complaint Programmed (SST, NEP, etc.) Re-inspection 12 You Should Set Reasonable Ground Rules: o Logistics plan for site inspection o Escort o Employee interviews o Document production o Photographs/Videotaping o Sampling o Walk-around o OSHA briefings 13 You Should: o Designate OSHA entry for inspection o Designate OSHA location for inspection o Designate location for employee interviews o Require OSHA to stay in the designated areas until request for walk-around 14 You Should: o Escort OSHA at all times • This prevents the compliance officer from getting hurt. • This allows you to gather information about the direction/focus of the inspection. 15 8(e) of the OSH Act Authorizes the Employer and the Exclusive Bargaining Representative to Accompany OSHA During the Walk-Around. 16 You Should: o Require OSHA to provide reasonable notice for the walk-around o Determine route to area needed to be inspected o Audit route before OSHA inspects 17 You Should: o Require OSHA to stay in designated route o Take notes during walk-around o Debrief walk-around representative 18 • Statements by managers/supervisors are binding on the company • • Entitled to management representative or attorney Typical ground rules • No tape or video recording • No signing of statements • Prepare managers who will be questioned • Lying to an inspector is a criminal offense and OSHA will prosecute 19 • OSHA has the right to “question privately” any employee • No rule against the employer interviewing hourly employee witnesses, even on work time • Interviews are voluntary, unless OSHA issues subpoena • Inform employees that OSHA has no right to tape-record or video-tape their interview • Inform employees that OSHA has no right to get a signed statement • Inform employees that they can inform OSHA that they waive confidentiality regarding their statements 20 • But don’t encourage workers to not cooperate with OSHA • Tell employees nothing they tell OSHA will result in any adverse job changes • Tell the employees to (1) tell the truth, (2) provide facts based on first-hand knowledge, (3) do not guess or speculate, (4) listen carefully to the question, and (5) answer only questions asked 21 • Document requests submitted to a single source, in writing • • Is the document responsive to OSHA’s written request? Is the document privileged? • Mark documents as Trade Secret/Business Confidential • • • Is the request reasonable? Maintain separate copy of all documents provided If written, no question what was sought by OSHA • Do not allow compliance officer to rifle through documents 22 You Should: o Review Documents Before Producing • This ensures responses are not over or under-inclusive. • Preserves confidentiality of Trade Secrets. o Stamp Documents Being Produced As Trade Secret to Preserve Confidentiality • OSHA is required to maintain confidentiality of Trade Secrets under Section 15 of the OSH Act. o Bates stamp documents being produced 23 You Should: o Take shadow photographs and videotape o Require 24 hours notice prior to any industrial hygiene sampling • This allows time to arrange parallel sampling • This ensures proper methodology for sampling 24 • Goal – Learn as much as you can • What citations will OSHA issue? • How will they be characterized? • What abatement does OSHA expect? • How is the abatement to be accomplished? • Do not argue and avoid admissions 25 • Employer has15 working days from receipt of citations to file notice of contest • The 15-working-day period cannot be extended • Failure to file a timely notice of contest effectively ends your ability to challenge any aspect of the citations or proposed penalties • Right to Informal Conference with Area Director during the 15-day period 26 • Case is sent to the Review Commission • Assigned to an ALJ (Administrative Law Judge) • Can still attempt to settle • Hearing on the merits and a decision issued by the ALJ • Appeal rights to a three panel Review Commission (all political appointees) 27