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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 o You can litigate and have qualifying criterion withdrawn either at trial or through settlement negotiations. 7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