3 Rights Employers Should Understand and Assert During OSHA Inspections

By Eric J. Conn and Lindsay A. Smith

OSHA has broad authority to conduct workplace enforcement inspections, and such enforcement efforts have reached record levels under the Obama Administration. OSHA gathers virtually all of the evidence it needs to substantiate a citation during inspections. Accordingly, it is essential that employers know and assert their rights during OSHA inspections. Below are three specific, important rights that Employers have during OSHA inspections.

1.  Insist on an Opening Conference

The Opening Conference is the most important stage of an OSHA inspection.  Employers have the right to an opening conference, and should always require that OSHA provide one before officially beginning an onsite inspection.  First, an Opening Conference is the employer’s last chance to avoid an inspection altogether. During the Opening Conference, OSHA must explain why your workplace is being inspected, and if there are holes in that explanation (e.g., incorrect application of an emphasis program, non-credible employee complaint, or a programmed inspection too soon after a prior inspection), Opening Conference Slideyou could convince OSHA that the inspection should not proceed. If the inspection will proceed, the Opening Conference is the time for employers to negotiate the scope of the inspection. For example, if OSHA is there because of an employee complaint, employers should negotiate with OSHA to limit the inspection to only the subject(s) of the complaint, and not consent to a wall-to-wall inspection. Employers can also establish ground rules for the inspection (e.g., require written document requests, arrange employee interviews in advance, and require a management escort for access to the facility).

Another benefit of asking lots of questions, engaging in meaningful negotiations over the scope of the inspection and explaining your ground rules, in addition to ensuring a smooth inspection, is that a long lasting Opening Conference will allow managers time to conduct a final walkthrough of the facility to address any low hanging fruit and advise the workforce of OSHA’s presence before the inspection starts in earnest.

2.  Accompany the CSHO at All Times

As part of an inspection, the CSHO will conduct a walkaround of the workplace. During the walkaround, a management representative should always Continue reading