Confounding expectations, federal OSHA under the Trump Administration has continued the same aggressive enforcement model we saw during the Obama Administration. Indeed, by many metrics we are seeing enhanced enforcement — more inspections, higher civil penalties, record numbers of $100K+ citation packages, and a continuing rise in willful / repeat citations and worker safety criminal prosecutions.
OSHA has also continued its aggressive inspection strategies that create a minefield for employers. In short, the consequences for employers being caught ill-prepared for an OSHA inspection, and making bad choices during inspections and after citations are issued, are more dire now than ever before.
This webinar provided employers with the knowledge and tools they need to prepare in advance for an OSHA inspection, to manage the inspection to a successful outcome once it begins, and to make smart decisions about how to address citations after they issue.
We have for several years now heard about our military’s and intelligence agencies’ use of unmanned drones to conduct secret surveillance of our geopolitical adversaries and terrorists across the globe. We may even take comfort in the use of these high-tech mobile video cameras hovering above a terrorist hide-out to foil a plot against our country. What may be less comforting to employers in the U.S., however, is that OSHA seems to have borrowed the playbook from our spy agencies to assist their inspectors in conducting inspections of U.S. workplaces.
OSHA’s Drone Policy Memo
On May 18, 2018, OSHA issued an internal policy memorandum to its field offices, announcing that it has begun using Unmanned Aircraft Systems, commonly referred to as drones, to assist with worksite enforcement inspections, as well as for technical assistance and training purposes. For now, OSHA’s new drone policy requires “express consent from the employer” before a drone is deployed in an inspection, but that limitation is simply a policy decision that can change with the political winds blowing in Washington, DC, or ignored by the agency without explanation as we recently saw with OSHA’s “Look Back” policy for issuing Repeat citations.
More than two years after OSHA published the E-Recordkeeping Rule, the agency finally revealed some of its plans for how it will utilize employers’ 300A injury data collected under the new Rule. In late October 2018, OSHA launched its new Site-Specific Targeting Enforcement Program, which outlines how the agency will select non-construction establishments for programmed inspection. OSHA will create targeted inspection lists based on employers’ higher than average Days Way, Restricted or Transfer (“DART”) injury rates. OSHA will also include a random sample of establishments with lower than expected injury rates for quality control. Thus, all employers covered by OSHA’s E-Recordkeeping Rule may be subject to an SST inspection.
As the private sector continues to see a decline in labor union membership among employees, labor unions are struggling to remain relevant and recruit new, dues-paying members. Traditionally, when a labor union begins an organizing campaign at a workplace, the federal agency at the center of the process is the National Labor Relations Board (“NLRB”). The NLRB’s purpose is to protect the rights of workers to organize and to freely choose whether or not to be represented by a labor union. Indeed, the NLRB is an intrinsic part of the election process, and the NLRB may also become involved in a union organizing campaign if, for instance, the union asserts that the employer has committed an unfair labor practice.
However, unions are more and more often engaging with or depending on the regulations of other federal agencies as a tactic to gain leverage during organizing campaigns. There are numerous ways a union may influence the outcome of an organizing campaign by using federal agencies, such as the Occupational Safety and Health Administration (“OSHA”) or the Wage and Hour Division (“WHD”) of the Department of Labor (“DOL”), to persuade employees to embrace the union, or to put pressure on employers to concede to union representation.
Taking OSHA as an example, an on-site workplace safety inspection, or even just the threat of an inspection, can impact an organizing campaign in a manner favorable for the union. The threat of making an OSHA complaint or inviting OSHA into the workplace to conduct an inspection can put pressure on an employer to stand-down against a union’s organizing efforts, even if it does not believe a particular violative condition or safety hazard exists. A safety complaint could spark an OSHA inspection and, with 75% of all OSHA inspections resulting in the issuance of at least one citation, the chances are high that the employer would have an OSHA enforcement action on its hands. Continue reading →
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), you 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 →
OSHA’s Severe Violator Enforcement Program (SVEP) is an enforcement program intended by OSHA to direct its enforcement resources at employers whom OSHA believes are “indifferent to their OSH Act obligations.” Employers who “qualify” for SVEP by being accused of committing Willful or Repeat violations in certain categories face a heavy dose of public shaming, but more importantly, will receive a heavy dose of OSHA inspections at the same and related facilities throughout the organization. The SVEP also includes a harsh and unrealistic “exit criteria,” so once you check in, you may never leave. To make matters worse, OSHA qualifies employers into SVEP just based on allegations, not proven violations.
The webinar explained what SVEP is, reviewed how employers qualify, described the types of companies that are being ensnared and in what circumstances, and provided recommendations for how to avoid SVEP and how to get removed if you do qualify.
Background about the Severe Violator Enforcement Program
Employers need to be aware of a new possibility that union representatives may attempt to accompany OSHA compliance officers during workplace inspections, including at workplaces where the union has not been elected to represent the employees.
29 U.S.C. § 657(e) of the OSH Act authorizes a “representative of the employer and a representative authorized by [the employer’s] employees” to accompany the OSHA agent during an inspection of the workplace. The OSH Act specifies that the purpose of including these representatives is to help OSHA conduct an effective workplace safety inspection. However, OSHA’s implementing regulations, specifically 29 C.F.R. § 1903.8(c), require that the employees’ representative must himself be an employee of the employer, unless the individual participation is “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace.” The regulation focuses on the third party’s technical expertise by listing “industrial hygienist [and] a safety engineer” as examples of non-employee representatives who may qualify under 29 C.F.R. § 1903.8(c).
On April 5, 2013, OSHA published a formal Interpretation Letter (dated February 21, 2013) ignoring the language of 29 C.F.R. § 1903.8(c) and expressly permitting employees at a worksite without a collective bargaining agreement to designate a union representative as their personal representative during an OSHA inspection. The Interpretation Letter not only flies in the face of the plain meaning of 29 C.F.R. § 1903.8(c), but it also contradicts:
The OSH Review Commission’s Rules of Procedure;
the National Labor Relation Act (NLRA); and
OSHA’s Field Operations Manual (FOM).
Section 9 of the NLRA explains that only a union selected by a majority of employees for the purposes of collective bargaining can be considered an authorized employee representative. Continue reading →
Perhaps the most common question I am asked about OSHA inspections is:
When does it make sense (if ever) for an employer to demand an administrative warrant before permitting an OSHA compliance officer to proceed with a safety and health inspection?
First, it is important to understand that the Fourth Am. of the U.S. Constitution does protect employers from unreasonable searches and seizures in the workplace just as it protects us all from such searches in our homes and vehicles. That means that without the employer’s consent, OSHA may not proceed with an inspection at the workplace without an administrative inspection warrant (or the presence of an imminent hazard).
However, as an administrative warrant, the standard that applies to OSHA’s application for a warrant is much lower than when the police request a warrant to inspect your home. Rather than demonstrating to the court criminal probable cause, OSHA need only show that there is administrative probable cause that a violative condition will be found in your workplace. On top of the lower burden that OSHA must show, the Agency gets a pretty health dose of deference from the Courts. All of that is to say, successfully challenging a warrant is steep uphill battle. That is not to say, however, that there are not good reasons to demand an inspection warrant.
We generally recommend that employers consent to OSHA inspections, but only after negotiating a reasonable scope to the inspection. Although the notion that OSHA will be denied a warrant or that an employer will successfully quash a warrant is usually a long shot, the threat of demanding or challenging a warrant does still give employers some leverage at the start of an OSHA inspection to negotiate with the compliance officer or the Area Office about the proper Continue reading →
Today’s OSHA has increased enforcement to levels never seen before, from increased inspections and citations to dramatically higher penalties, from more criminal referrals to a heavy dose of public shaming. It is more important than ever to be prepared. This complimentary webinar series has been designed to give employers the tools they need to avoid becoming an OSHA-enforcement poster child.
We have recorded and will continued to record each of the webinars, and as we move through the year and conduct these webinars, we are pleased to provide links below to the recordings. There are also links below to the registration pages for the remaining webinars in the series. Check out the completed webinars and plan to join us for all or some of the rest of the series.