1 June 2012 Mark Banden, Compliance Assistance Specialist Kansas City Area Office Surviving an OSHA Inspection

2 Enforcement Program

3 The Dark Side: Enforcement Still an Important tool - Deterrent effect - Intervention effect

Open Fields Doctrine “Cruise and Bruise” 4

5 INSPECTION PROCEDURES n Presentation of Credentials n Attendance at Opening Conference u One hour delay to get Safety Personnel on-site n Purpose and Scope of the Inspection u Permission to conduct inspection n Employees of Other Employers n Walkaround Representatives F Employees Represented by a Certified or Recognized Bargaining Agent F Safety Committee F No Certified or Recognized Bargaining Agent

6 INSPECTION PROCEDURES n Disruptive Conduct n Trade Secrets n Classified Areas n Walkaround Inspection F Evaluation - The employer's safety and health program F Record All Facts Pertinent to an Apparent Violation u “Plain View” hazards F Limit Access to CSHO.

7 INSPECTION PROCEDURES n Collecting Samples n Taking Photographs and/or Videotapes n Interviews F Purpose. Section 8(a)(2) of the Act authorizes the CSHO to question any employee privately during regular working hours in the course of an OSHA inspection Management can have others presentManagement can have others present F Employee Right of Complaint F Prohibition against discrimination under Section 11(c) of the OSH Act

Protected Activities Section 11(c) of the OSH Act n Employees cannot be discriminated against for engaging in the following activities: u Reporting or discussing safety issues with company or OSHA representatives u Filing a Complaint with OSHA u Refusing to do work where “Imminent Danger” hazards exist n Incentive Programs which discourage injury reporting 8

9 INSPECTION PROCEDURES n Employer Abatement Assistance u Policy. CSHOs shall offer appropriate abatement assistance during the walkaround as to how workplace hazards might be eliminated

10 INSPECTION PROCEDURES n CLOSING CONFERENCE: F At the conclusion of an inspection, the CSHO shall conduct a closing conference with the employer and the employee representatives, jointly or separately, as circumstances dictate. The closing conference may be conducted on site or by telephone as deemed appropriate by the CSHO F The CSHO shall describe the apparent violations found during the inspection and other pertinent issues as deemed necessary by the CSHO.

11 FOCUSED INSPECTIONS (Construction Sites Only) n Goal: u To make a difference in the safety and health of employees at construction sites u Effective time utilization n Previous goal: u All inspections comprehensive u All hazards

12 Focus 4 Hazards: n Falls from elevation n Struck-by n Electrical shock n Caught-in-between n 30 % n 22% n 18% n 17%

13 Inadequate Safety And Health Program n Resource intensive inspections will be conducted on projects where there is inadequate contractor commitment to safety and health n This group of employers will receive OSHA’s full attention

14 CSHO Determines n During all inspections u Adequacy of safety and health program and u Designated competent person n Inspection scope u Focused inspection u Comprehensive inspection

15 Assessment Of Safety And Health Program n Comprehensiveness of program n Degree of implementation n Designation of competent person n Enforcement of policies n Employee involvement n Training n Employee interviews n Citations of 4 leading hazards u Other plain-view serious hazards

16 Enforcement OSHA says “bah-humbug” to Salvation Army Santa

17 Penalties and Violation Classification n Other-than-serious violations (Unusually $0 fine) u Hazard not capable of causing death or serious physical harm n Serious violation (maximum fine of $7,000) u Hazard capable of causing death/serious physical harm n Repeated violation (maximum fine of $70,000) u Previously cited for a substantially similar hazard in past 3 years n Willful violation (maximum fine of $70,000 per instance) u Knew of hazard but did not take action, or u Plainly indifferent to hazard n Failure-to-abate (maximum of $10,000/day unabated) u Possible 11(b) enforcement sanctions by court WHY QUESTIONS

18 U.S. CONSTITUTION n Due process u Employer can challenge citation

19 Informal Case Settlement n Expedited Informal Settlement Agreements are usually sent with the citations which offer a 30% penalty reductions u Just sign and mail back within contest period n Informal Conferences can be held within the 15 day contest period u Come into OSHA Office and discuss case mitigating issues u Formal Settlement drafted and executed

20 Process n If a citation is issued the employer has the right to contest. n Result is a hearing before a judge of the Occupational Safety and Health Review Commission. n The secretary has the burden of proof for the prima facie. n The employer has the burden of proof for any affirmative defense.