OSHA Inspections

Surviving the OSHA Inspection: 10 Tips from a Leading Attorney

Date First Published on SafetySmart Compliance: April 15th, 2012
Topics: OSHA Inspections |

Guest Expert: James F. Laboe, Esq. 

Jim Laboe knows a thing or 2 about OSHA inspections. As a partner of the Concord, NH, law firm, Orr & Reno he has defended clients in OSHA proceedings all across the USA.

X Don’t Give Inspectors the Sight-Seeing Tour

Keep in mind that inspectors can cite you for any violations in “plain view.” So when inspectors first show up, determine what they’re looking for and keep them focused on just those parts of the workplace relevant to the inquiry.

Real life example:

OSHA comes to inspect an outdoor sugar silo but is ushered through the indoor work area where he spots over a dozen violations in “plain view.”

Keep Track of the Documents Inspectors Request

Obvious, right? The only problem is that employers often neglect to do this. Consequently, they end up guessing what OSHA wants—often with catastrophic consequences. Keep track of what documents inspectors ask for.

Real life example:

One of Jim’s clients can’t remember what exactly what the inspector requested about a particular machine and can’t track him down before the deadline to reply. So it decides to provide all the materials in its files, including an internal audit report that the inspector didn’t even ask for that becomes Exhibit A in OSHA’s case.

X Don’t Sign the Inspector’s Notes

Common trick: The OSHA inspector asks you to sign off on his notes. You agree without thinking twice. Later, OSHA uses that signature as evidence that you agreed with the inspector’s account of the situation or your conversation.

X Don’t Agree to Let Inspectors Videotape Interviews

You have to let inspectors take videos; and you have to let them interview employees and/or management representatives. But you don’t have to let them videotape interviews. And you shouldn’t, Jim cautions.

Conduct Parallel Testing  

When OSHA inspectors conduct tests like air monitoring, do parallel tests at the same time so you can challenge OSHA’s test results in the not all that unlikely event they’re flawed.

Take Parallel Photos

Inspectors will offer to share their inspection photos with you. Politely decline and take your own. OSHA generally won’t provide its inspection photos until after the citation is issued and litigation ensues, Jim explains. Consequently, you lose the chance to use the photos to help prevent litigation in the first place. Click here to find out about how a company saved $43,000 in fines by taking its own inspection photos.

Photograph Your Own Trade Secrets 

Things can get ticklish when the inspection focuses on machines, processes, etc. that you consider trade secrets. OSHA will want to photo these things. Instead, Jim suggests that you ask for permission to do your own photos. Although they make a good faith effort to protect your trade secrets, OSHA inspectors take dozens and perhaps even hundreds of photos and can lose track of which ones are trade secret-protected. Click here to find out more about how to protect trade secrets during OSHA inspections.

Appoint Walkaround Representatives 

Designate individuals to serve as company representatives and accompany OSHA inspectors during the walkaround phase of the inspection. Click here for Model Instructions you can use to prepare your representatives for the inspection.

Train Employees to Handle Inspections 

Make sure all employees the inspector might encounter are prepared and know what they should and shouldn’t say. Click here for help preparing employees for OSHA inspections.

X Don’t Ask the Inspector to Get a Search Warrant

Rest assured, they’ll get one, says Jim. And to justify the extra effort—and repay your “hospitality”—they just might turn what would have been a limited and quick inspection into a 6-month affair. So, unless your attorney specifically advises you otherwise, don’t play the search warrant card.

 

If you were unable to make Jim’s April 4, 2012 webinar, you missed out on some great insight about surviving OSHA inspections.
But don’t fret. If you’re a member of INSIDER, you can download the presentation for free.

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