By Eric J. Conn and Beeta B. Lashkari
Based on the rhetoric from the 2016 presidential campaign trail, it was reasonable for Industry to anticipate OSHA enforcement under a Trump Administration to contract significantly from the aggressive enforcement model employed by Pres. Obama’s OSHA. Informed by the enforcement philosophies of past Republican administrations, the expectation was that a Pres. Trump / Sec. Acosta OSHA would scale back enforcement, favor compliance assistance, slash OSHA’s budget and staff to limit enforcement, retire national and local emphasis enforcement programs, revise enforcement policies that inflate civil penalties, and otherwise retool its approach to ease the regulatory burden on employers.
The reality, however, is that OSHA during the Trump-era has not backed down from its enforcement mission. Quite to the contrary, relevant enforcement data reveals enforcement creep. With still no Trump-appointed Assistant Secretary of Labor for OSHA in place nearly two years into the Trump Administration, career OSHA staff have considerable influence over the direction OSHA is steering, and that is why little has changed, and why change may not be on the near horizon.
Here are some of the key ways that OSHA enforcement is hardly distinguishable two years into the Trump Administration from OSHA during the Obama Administration:
- OSHA’s FY19 budget is increasing by $5M from the end of the Obama-era (nearly $560M total)
- The number of employees at OSHA dipped at the start of the Trump Administration, but it has restored to roughly the same as the end of the Obama-era (approx. 2,000)
- The number of National and Local Emphasis Enforcement Programs remains essentially the same (approx. 150 Local/Regional Emphasis Programs and 9 National Emphasis Programs), including new or retooled NEPs for petroleum refineries and trenching
- The total number of fed OSHA inspections actually increased from 31,948 in FY2016 to 32,396 in FY2017 (the first year over year increase in the number of inspections in nearly a decade)
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), 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
By Eric J. Conn
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
By Eric J. Conn, Chair of Conn Maciel Carey’s national OSHA Practice
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