I was recently asked an interesting question by an industry contact:
“Employers often are told to know and exercise their rights during an Occupational Safety and Health Administration (OSHA) inspection. What exactly are employers’ rights during an OSHA inspection?”
While it may not feel like it during an inspection, employers have many rights before, during and after OSHA inspections.
Before an inspection even begins, employers have a right under the Fourth Amendment to the U.S. Constitution to be free in their workplaces, just as they are in their homes, from unreasonable searches and seizures, which include inspections by OSHA. What that means is, OSHA may not inspect a workplace unless the agency has administrative probable cause (a lower burden than criminal probable cause) to believe that a violative condition exists within. Accordingly, employers have a right to demand an inspection warrant that establishes OSHA’s probable cause to inspect. We rarely advise clients to demand an inspection warrant; rather we try to negotiate with the agency over a reasonable scope of the inspection, and with such an agreement, waive the warrant right and consent to the inspection.
Another right employers should consider asserting with regard to OSHA inspections is the right to exclude nonemployee third parties (such as a union representative at a nonunion workplace) from participating in the inspection process. OSHA recently issued a formal Interpretation Letter of the regulation covering who may participate in OSHA walk-around inspections. Specifically, OSHA expressed its belief that employees at a nonunion worksite may authorize a third party affiliated with a union or community organization to act as the employees’ representative during an inspection. Notwithstanding OSHA’s interpretation letter, the plain language of the standard makes it clear that such involvement by a third-party union representative is not permitted under the law, and employers may exercise their rights to exclude third parties from the inspection by demanding and challenging a warrant under those circumstances. If confronted with such a situation, employers should consult with legal counsel before allowing any nonemployee third party to participate. One approach would be to demand and challenge an inspection warrant. If the nonemployee is permitted on the premises, employers should be explicit about who bears responsibility for any injury to that person, who is responsible for any personal protective equipment, determine whether that person is trained on any hazards that may be present or has any necessary security clearances for sensitive activities that may be in view, and how to protect any proprietary processes from being revealed.
Also before inspections begin, employers have the right to an opening conference. In my opinion, this is the most important stage of the inspection because it is the time when employers can:
- Negotiate to narrow the scope of the inspection.
- Ask questions about the purpose of and probable cause justifying the inspection.
- Try to establish ground rules with OSHA about how the inspection may proceed, from the collection of documents (through written requests only), to interviews (scheduled in advance), and physical access to the facility (only with a management escort).
If the inspection was initiated by an employee or former employee complaint, employers also have a right to access a copy of the complaint before consenting to the inspection.
Once an OSHA inspection begins, employers also have many rights, including a right to accompany the compliance officer at all times during the walkaround, and to take side-by-side photographs and document other physical evidence that OSHA takes during the inspection. Another important right relates to management interviews. Interview statements by management representatives bind the company, and since the Occupational Safety and Health (OSH) Act gives employers the right to be present when binding statements are taken, employers therefore have a right to be present and participate in interviews of management witnesses, regardless of whether the management witness wants the representative there.
After inspections, employers have the critical right to contest OSHA’s citations, which are nothing more than allegations. OSHA is not the final word, and there is a body of independent administrative law judges who hear challenges to OSHA citations. Also after inspections, third parties (such as plaintiffs’ attorneys, union organizers, or competitors) may attempt to obtain OSHA’s inspection file from your inspection through requests under the Freedom of Information Act (FOIA). Employers have a right to protect their trade secrets and business confidential information from disclosure to third parties. They do need to provide that information to OSHA during the inspection, but if you identify it as confidential business information, OSHA will either refuse to produce the information in response to a third-party FOIA request, or will at least notify you that a FOIA request has been made, and likely share who made the request and ask you to justify that claim.
As a final note about employers’ OSHA inspection rights, employers have a general right that OSHA’s inspection be conducted reasonably. This right derives from the provision of the OSH Act that actually gives OSHA its authority to conduct inspections. Sec. 8(a) of the OSH Act provides:
“OSHA may inspect at reasonable times any workplace during regular working hours and at other reasonable times within such reasonable limits and in a reasonable manner.”
While that provision grants OSHA the authority to conduct inspections, it also mandates that the timing, scope and manner of inspections must be reasonable. It is this requirement of reasonableness that gives employers the right to push back on overly burdensome or disruptive inspection requests, such as employee interviews on the manufacturing floor without notice, or requests for documents and information that would be extremely voluminous. Based on Sec. 8(a) of the Act, employers can request that interviews be moved to an office and scheduled in advance, or to bargain for more-limited document productions.
Eric J. Conn is the head of the OSHA Practice Group at Epstein, Becker, Green’s Washington, D.C., office.
Republished with permission. © 2013 Epstein, Becker, Green.
OSHA Inspection Hot Spots Highlighted, SHRM Online Legal Issues, September 2013
OSHA FAQ Series: Equipping your Inspection Team with the Right Tools, SHRM Online Safety & Security, March 2013
OSHA FAQ Series: Establishing an OSHA Inspection Team, SHRM Online Safety & Security, January 2013
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