Safety Basics VI: Employer and Employee Rights During OSHA Inspections

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Frank Davis: Hey, good morning everybody, and welcome to another episode of our OSHA law primer. We’re in part six discussing employer and employee’s rights during an OSHA encounter, also known as an OSHA inspection. And with me, I have my good friend and law partner, John Surma. John, good morning.

John Surma: Good morning, Frank. I would add a little bit to the description of the presentation. It’s not just employer and employee rights in those interactions. It’s also employer and employee rights as preserved regardless of whether OSHA is present or not, because there’s certainly those rights that extend a little bit further, but most of them come up, especially on the employer side, in the context of the, to use your term, OSHA encounter.

Frank Davis: Given that our time usually isn’t unlimited for our podcasts such as these, I thought it made sense just to jump right into employee rights.

John Surma: Let’s talk about employee rights first. So there’s a list of employee rights. One of them is the right to speak to OSHA without fear of retaliation or retribution by their employer and retaliation and retribution is, or those are, pretty broad concepts. Another one is the right to complain about work. Another is the right to refuse to work. Another is the right to information. A next one is the right to participate in OSHA inspections. Another is the right to a workplace that’s free from recognized hazards. Kind of sounds like the general duty clause, and that’s exactly where that comes from. And then the last right that we’re going to cover, or at least at some level address, is the right to organize and form a union. And Frank, being the recovering labor lawyer or the labor lawyer in recovery or whatever you call yourself as far as labor lawyers, that one, if we’re going to talk about it, that’s your baby.

Frank Davis: And maybe we don’t have to go into it here, but it’s the right to organize and form a union. It’s also the right not to. Those are both Section 7 rights. So maybe that’s not a good topic for today. I’m happy to talk to anybody about it ad nauseam. I am interested right now, though, to hear your take on an employee’s right to complain about work, right?

John Surma: And there’s a whole host of protections there, and there’s overlaps of the various protections that are afforded to employees. So an employee has the right to complain work under 11C. The Section 11(c) of the OSH Act protects employees against discrimination or retaliation. Discrimination is the term in the act. It’s an analog for retaliation and it’s for basically raising any sort of safety complaints. And whether that’s raising them from the standpoint of submitting a formal safety report or grousing about it to their boss or co-workers or colleagues, or getting on social media and grousing about it, they have the right to complain about it. There’s protections under the National Labor Relations Act relative to some of those complaints issues. And honestly, and I’m sure this has been your experience as well, Frank, a lot of those complaints grow into OSHA complaints where you either have to do an RRI response or a complaint response, or OSHA actually comes in and does an inspection. So a lot of times addressing those employee complaints to the extent that you can address them early on solves that OSHA inspection issue.

Frank Davis: Yeah, well, being proactive, right? We always talk about being proactive and we talk about the open door policy. So many people have a written open door policy, but they don’t implement it. And like we’ve frequently talked about on our podcasts, the most effective open door policy is where employees don’t have to come looking for the supervisor. It’s where the supervisor is out on the floor interacting and being available to answer employee questions and concerns. Now, there’s a certain percentage of employees that will never be satisfied with that, but the majority will be. And if the majority are, then you tend to not have as many interactions with federal government. You don’t have as many interactions with the EEOC, with NLRB, with OSHA, and maybe even fewer worker’s comp claims.

There are certainly studies that support the conclusion I just gave. And again, we’ve talked about those in other podcasts. So I think that observation of yours is one to embrace, as in, if I were a manager running a business, especially one where there were workplace hazards that could likely lead to serious injury, then I would strongly encourage my workforce, my supervisory workforce, to be out and engaged with employees and want to be careful, but soliciting their concerns and addressing those concerns with regard to workplace safety. You also mentioned the right to refuse work, because I think those things go hand-in-hand. And so what is an employee’s right to refuse to perform certain work?

John Surma: So the right to refuse certain work varies according to various state and local laws relative to why an employee can refuse to work. And that varies across the country. And we’re certainly not at a point in this podcast, unless we’re going to spend three hours, well, 30 hours, going through this. We’re not in the position to get that granular. But there’s state and local laws that give employees basis for refusing to do work for whatever reason. Those state and local laws allow that. But if there’s a good faith basis that the employee believes that the work involves an imminent hazard, under Section 11(c), and I think we’re starting to develop a little bit of a theme there, the employee has the right to refuse work. If the employee says that there’s an imminent hazard and reports to OSHA there’s an imminent hazard, OSHA can actually seek conjunctive relief to prevent the employer from continuing that operation due to the imminent hazard. Although that’s something that happens on rather rare occasion, at least in my experience.

Frank Davis: Yeah, and the place where I’ve really seen them implement or get a lot of traction is employees refusing to do work and having a work stoppage associated with it. Like I’ve mentioned in a webinar on a similar issue that we had several weeks ago, I’ve seen that lead to an organizing drive that was actually a successful organizing drive. So whenever you get employees walking off the job or refusing to do work because of a hazard, obviously that’s the time to stop and think about it and consult with appropriate resources to evaluate what your response could be, and maybe what it should be. Because there are clearly significant risks. And that risk of having a labor board impact or labor board analysis is true even if you are a non-union employer. It doesn’t really matter if there’s a union representing employees or not, the protections remain the same.

John Surma: Well, and Frank, to that point, we’ve had three inspections come in this week alone that were driven by employees being unhappy with the workplace, thinking that there were imminent dangers. And whether they upchanneled them correctly or not, and I don’t mean correctly like follow the right forming, I don’t know that they upchanneled them at all, in one instance. But that’s the basis for three inspections that are going to take a bunch of time, effort, and money to address. And so dealing with them before they get out of control, nipping them in the bud, that’s a good idea.

Frank Davis: Right, absolutely. That’s interesting that you have those classic examples as well. So it can come from multiple angles. The right to information, right to know laws. John, how about a 15,000-foot view of those?

John Surma: So again, there are state and local right to know laws, typically as relates to chemical exposures and similar types of hazards in the workplace where, depending upon what state you’re in and what locality you’re in, you may have an obligation to share with your employees information about particular hazards in the workplace, particularly if it’s certain chemicals are being used. Section 8(c) of the act indicates that the secretary shall also issue regulations requiring that employers, through posting of notices or other appropriate means, keep their employees informed of the protections and obligations under this act, including the provisions of applicable standards.

That’s where the OSHA right to know posters come from. And so people are, I’m sure they ask you this all the time, do we really have to post those? Yes, you have to post those, and section 8(c) of the act is why. And then the last area where the right to know is preserved by OSHA relates to various standards. So you have things like the hazard communication standard that requires that certain information be available to employees. And I’m sure there’s other examples, Frank, that, and maybe you can think of one for our audience, where an employee has a right to know information because something that OSHA compels them, the employer, to do.

Frank Davis: There are medical records, and of course they get access to that information, especially associated with any workplace exposures. And likewise, they could get access to other employee information, albeit redacted, related to common exposures. But the ones you’ve highlighted are the ones that are most frequently cited. The compliance officers about, I’m going to just throw out a low percentage, but 10 or 15% of the time I find compliance officers actually ask down here to see that right to know poster. And that’s interesting to me, which suggests that when we were thinking about where you’re going to post employee notices to try to post your employee notices in a less invasive place in the workplace. In other words, don’t hang it up above a dip tank, for instance, but put it in a break room that’s easily accessible, from an outdoor location where you’re not having to walk by a lot of hazards to get to it, or potential hazards to get to it. Let’s talk about, lastly, the right to a workplace free from recognized hazards. You said that’s derived from what?

John Surma: Oh, our favorite general duty clause, Section 5(a)(1) of the OSH Act where employers are required to maintain a workplace free of recognized hazards. And ultimately that is where that right to a workplace that is free of recognized hazards derives from. The employer has that obligation, and by extension or imputation, the employee has the right to enjoy that workplace that doesn’t have those workplace hazards. Maybe today, 50-some years after the OSH Act was implemented and after OSHA became a thing, maybe today it doesn’t quite seem like such a ground-shattering thing, but back in the day, that really was kind of a new thing and it was a right that employees hadn’t enjoyed previously, and that is a right to a place of work that doesn’t have a bunch of hazards.

Frank Davis: No, I think that’s right. That was one of the big reasons why employees would organize and join unions was to improve workplace safety. Let’s transition to employer rights, John. We’ve heard all these things that employees get access to, but what can employer expect from the OSH Act?

John Surma: Employers typically are of the mind that they have no rights, and that’s a huge mistake. Employers have a number of rights. Some of them are from the OSH Act, some of them are from the OSHA regulations themselves, but the first of those is the right to be free from unreasonable conduct, or conversely the right to a reasonable inspection. OSHA has to do things in a way that they can’t show up at two o’clock in the morning just on a programmed inspection and say, “We’re here. Wake up, everybody. It’s time to do inspection.”

The employer also has the right to representation during interviews of management employees, and employers have the right not to perform work or engage demonstrations of its process during an OSHA inspection. The employer has the right to continue operating even after a fatality or catastrophe, and we’ll cover that one a little bit more because there is a caveat there; some of it related to OSHA, some of it not related to OSHA. Employers have the right to protect confidential or trade secret or proprietary information from public disclosure, and they also have the right to establish the unpreventable or unavoidable employee misconduct defense.

Frank Davis: Very nice. So let’s first start with the statutory authority to be free from unreasonable inspections. They must inspect at reasonable times and in a reasonable manner. What does that mean?

John Surma: Well, and I’m glad that you used the word statutory, because this is part of the OSH Act. This is a statute. There’s been a lot of talk about Loper Bright, and some of these other recent Supreme Court cases and OSHA interpretations. And this one’s not an OSHA interpretation. This is the law as Congress passed it. And Section 8(a) lays out that the secretary has the right to conduct inspections, and specifically calls out it has to be at reasonable times. It has to be during regular working hours, and at other reasonable times, and with reasonable limits, and in a reasonable manner that they do these inspections.

And so if it’s some sort of crazy, high demand, outrageous type inspection at crazy unreasonable times, or in a way that completely interrupts your work day, you have the right to be free from that. You have the right to object to that. Section 8(d) as in delta also says that OSHA is to minimize the burden on employers and to avoid unnecessary duplication of efforts in obtaining information to the maximum extent feasible. And we see this on a fairly regular basis, not all the time, but where you end up with requests for the same documents or documents that are very similar, and it’s whether it’s the person that’s receiving them hasn’t organized them well, or they don’t understand them or whatever, the repeat over and over and over requests. The last time I had this was four or five years ago, and the last iteration–

Frank Davis: That’s not true. It was last year. I worked on the case with you.

John Surma: Oh, yeah, yeah, you’re right. I forgot about that one. Well, that’s because you did such a good job that I didn’t even have to think about it. But yeah, that one, we didn’t draw the line on this. Four or five years ago we did, and we said, “Look, we have the right to be free from these duplicative efforts. You have to figure out what we provide you. We’ve already provided you everything.” And ultimately they went back and they did figure it out.

Frank Davis: Yeah, no, that’s right. And the other thing I would add to that, the only other thing I would add to that, is if an employer’s responding on their own without legal counsel, or hasn’t retained competent legal counsel, I’d be very thoughtful in the responses to the extent they’re duplicative to ensure you’re being consistent in the responses. Because inconsistency in the responses can be evidence of either, at best, unreliable representations; at worst, purposeful cover-up that can lead to fines and prison time.

John Surma: And first of all, Frank did an outstanding job in the inspection he’s talking about, and truly, we didn’t have to get into the weeds that far, but the other problem is with regard to that sort of, we’ll just say candor type issue, there’s a lot of times where the requests are asked multiple times, and the only apparent reason for that is to try to catch you in a lie, catch you in a contradiction, whatever you want to call it. And you have to be really careful about those duplicative efforts because at a certain point, there’s no other purpose than to try to catch you in something.

Frank Davis: Yeah, very good. So a lot of times whenever there’s an inspection going on, the compliance officer wants to walk the site and then sit down immediately with employees and then with rank and file employees, non-supervisory employees, and then right after sit down and interview management employees. And I find that employers that do not contact us at the time of the inspection, or in advance, or haven’t thought through this process, frequently give access to those interviews immediately. What are the employer’s rights and what are the employer’s exposures if they don’t exercise those rights, John?

John Surma: Let me start with… And I love the lead up. Let me start with, that’s one of those things where going along to get along, typically, at least in my experience, I assume you have the same experience, that typically backfires in our client’s faces or an employer’s faces when that happens because, quite frankly, folks are not prepared. Folks are not equipped, and we have no idea what they’ve actually said at the end of the day, and we’re trying to piece it together and it becomes problematic.

Frank Davis: I’m going to interrupt you right there, though. I’m going to add another point. Once OSHA knocks on the door and says, “I’m here to conduct an inspection”, my position is and always has been that litigation has begun. They are in the discovery process. And so going forward without being prepared, an employer going forward without being prepared is akin to receiving a lawsuit from a plaintiff’s lawyer and saying, “Sure, come on in, plaintiff’s lawyer. Come and interview everybody now. Bring a court reporter and make a record.” I’ve never seen an employer do that, but I’ve seen lots of employers open the door on an OSHA inspection, which again, I consider litigation once they knock on the door and say, “I’m here for an opening conference and to conduct an inspection.”

John Surma: They’re there for a job. They have a job, and you have to be prepared going forward. But an employer’s rights during the interviews of management employees, because statements by managers are admissions against employer interest, and because of the impact of those manager statements, employers have the right to have counsel present on behalf of the company and the manager in that interview. In almost every state, if not every state, the current employed managers are considered essentially the agents of the employer. So we can represent the company and the manager in those interviews.

There’s no requirement that managers be allowed to sign or submit to recording of their statement, although the Dallas region has adopted a policy where they’re recording all interviews. And so if you don’t agree to that, the next step is they’re going to do sworn statements under oath, and so effectively they have trumped that right to not do it, and there’s no requirement that they not do that. So you’re just stuck. If they decide that’s the path they’re going to take, that’s the path they’re going to take. But those are the primary rights an employer and the managers of that employer have during those interviews.

Frank Davis: The last point I want to cover before we close this podcast is the right not to perform work or engage in demonstrations. There have been many inspections… Many, maybe three or four a year, where the process that OSHA wants to inspect is not a process that is regularly conducted, and OSHA will come in and ask the employer to implement the process so they can see how the process works. Do you have any thoughts about an employer’s obligation to comply with that request, and any issues that they should consider when evaluating whether to comply with that request?

John Surma: OSHA certainly has the right to observe your work as it’s being performed. So you’re manufacturing widgets, they have the right to watch the widgets in manufacture. But they don’t have the right to insist on being shown how the equipment operates or how particular operations are performed. They can’t basically force you to stop the operation and do a step-by-step explanation of what’s happening. They can watch it in operation, but they can’t compel you to demonstrate each of the individual steps and explain them. They can’t require you to reenact how something happened or the startup of a process. There’s two other quick points I want to make. One, employers can stop work altogether during inspection, but that can be risky because OSHA can seek a warrant to permit access during the performance of work.

Frank Davis: Well, plus I think you can get a negative inference from OSHA when you do that. In fact, I’ve heard that comment many times. But it is something you can consider. So what else?

John Surma: Oh, those were the two points together.

Frank Davis: Nice merge. Nice merge. Well, listen, John, thanks very much for the overview. Really appreciate it. For those of you who didn’t catch our webinar on a similar subject, please go to the Ogletree Annals of Historical Webinars and enjoy. John, I hope you have a good rest of your day.

John Surma: Hey, Frank, I appreciate it. It was good visiting with you, and take care of yourself.

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