Currently president of FDRSafety in Brentwood, Tennessee, Jim Stanley had a long and distinguished career with OSHA. He achieved the rank of deputy assistant secretary and oversaw nationwide enforcement before retiring from the agency in 1996 and going to work in private industry.
This should ideally be the safety director or someone in upper management who is well versed in applicable OSHA standards, workplace conditions, location of records, the company’s safety and health program, and OSHA inspection procedures.
"The reason many companies get into trouble," says Stanley, "is that the wrong person is facing the compliance officer." A common mistake is to designate an individual who is high in the corporate structure but who lacks detailed safety knowledge and understanding of employer rights and duties.
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Representative’s Duties
Among the representative’s duties, Stanley lists:
- Attend opening and closing conferences
- Accompany and record all aspects of the walkaround inspection
- Photograph all areas of the facility and those photographed or videotaped by OSHA
- Respond to document/information requests
- Make sure employees are aware of their rights during an inspection
- Keep the inspection under control (for example, don’t let it unreasonably interfere with work or extend beyond normal working hours)
- Consult with legal counsel about difficult problems, such as search warrants or subpoenas
- Be courteous and polite, but firmly exercise the company’s legal rights
Be Careful
A big no-no according to Stanley is to admit to any violations or unsafe practices. "I tell my clients that CSHOs are not their friends—they are there to do a job, which is looking for violations and seeing if you are in compliance with the OSH Act and the General Duty Clause."
He advises representatives to keep quiet about anything that could be construed to be an admission of noncompliance. For example, if the officer says, "That employee should be tied off, right?" you can explain that he does not have to be tied off if he is protected by guardrails. But don’t argue, and don’t admit to a possible violation. An admission might reduce your chance of negotiating a settlement.
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Get Off on the Right Foot
The opening conference is an opportunity to set the right tone for the rest of the inspection. Stanley urges employers to take good notes and not hesitate to ask questions or express concerns.
For example, if a compliance officer asks for documents that might reveal trade secrets, the company representative should ask for OSHA’s agreement that the material will be handled in confidence. If the inspection was the result of a written complaint, you should ask to see the complaint.
Also request a list of the documents that OSHA wishes to review and only produce those you are required to, such as copies of the OSHA log. You might not want to turn over a report from an insurance company or consultant that describes hazardous conditions in the workplace. It’s the representative’s job to know when to get a lawyer involved and request a subpoena.
Other tips for the opening conference:
- Confirm with the inspector what is anticipated and how long he or she plans to be on-site.
- Reach an understanding that the inspection will be limited to areas or conditions listed in the complaint or referral. Politely object if the inspector wants to expand a limited audit into a lengthy wall-to-wall inspection.
- Discuss any safety issues that might be encountered during the inspection and insist that the inspector follow all site PPE requirements.
Tomorrow, more advice from Jim Stanley about coping with OSHA inspections.
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