Safety Perspectives From the Dallas Region: Tipping the Scale—Strategies for Working With Compliance Officers

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John Surma: Welcome back, everybody, to another episode of the Dallas Regional Safety Podcast. I’m here in my Houston office. I’ve got my good friend and partner, Frank Davis, up in his Dallas office. Frank, how are you this morning?

Frank Davis: I’m doing well, John, how are you down in Houston?

John Surma: Hey, the summer heat has broken and we’re only hitting about 90 these days, so all is good. Frank, I thought it would be good for us to have a conversation today about how to deal with the difficult compliance officer, the difficult OSHA inspection. You and I have been doing this a long, long time, maybe at this point getting to be longer than we either one of us care to admit, but you game for a conversation like that?

Frank Davis: Yeah, no, I think that makes sense.

John Surma: Just to give folks a frame of reference, I had a recent experience with a compliance officer that became really, really challenging and really, really difficult, and that’s really kind of the impetus for having this discussion. Though, we routinely have actually really good interactions with a lot of compliance officers, every once in a while you do have that challenging situation. I thought there were some takeaways that we should talk about relative to that inspection and kind of how we dealt with that difficult compliance officer.

Frank Davis: I’ll jump in right here. I agree with you. Typically, the interactions with compliance officers are positive. We’re talking about a rare situation now, and in fact, whenever you have these interactions with compliance officers, one person might have, or one company might have great interactions with a compliance officer and then for whatever reason on another day that the compliance officer might be more challenging and more difficult to deal with. So it may not be a trend in the compliance officer’s personality, but that starts with whenever we’re doing training about how to engage a compliance officer doing an inspection.

The first thing we always say is what, be professional, right? Don’t go out of your way to agitate the compliance officer because at the end of the day, we’re all just people, right? You can turn an otherwise nice person into an aggressive person if you just treat them badly and vice versa. Sometimes the compliance officer who’s having a bad day might have a better day with you if you invite them in, you’re polite to them, offer them a nice place to sit, give them a cold beverage like a glass of water or something to the extent they’re willing to accept it. But that’s not what we’re talking about here. We’re talking about some specific one-offs that turned out to be problematic in some specific cases, as I understand it, John.

John Surma: At the end of the day, like you said, most of them are just normal average Janes and Joes doing their job just like everybody else, and they’re going to kind of treat you the same way that you treat them. I wanted to shift gears right away, and one of the things that we did in this inspection when things got a little bit crazy was we started making video documentation of what was happening during the inspection to basically number one, hopefully discourage the compliance officer from continuing in the path that they were continuing in and number two, to document what they were doing in case they refused to stop doing what they were doing.

Frank, I don’t know about you. I don’t normally do videotapes of what the compliance officer is doing during the inspection. If I’m not present, I’ll often ask the client to videotape what’s going on just so that we can see what they’re actually doing. What’s your experience been relative to doing a videotape of the compliance officer and what they’re doing during the inspection?

Frank Davis: I typically do not videotape a compliance officer, and if I can’t be at an inspection in person because for whatever reason I can’t be there and I am going to participate, then frequently we’ll use Teams or even FaceTime to monitor the inspection and be able to listen to it. But I generally refrain from videotaping the inspection because I feel like that encourages the compliance officers to also want to videotape the inspection. And all things being equal, I’d rather be relying on photographs and notes than snippets out of a videotape that may be altered or shared out of context.

John Surma: Fair, fair. But I mean from the standpoint of other than the compliance officer potentially videotaping the inspection, I mean, I’ve never had a compliance officer come back and say, “Yeah, no, we’re not going to agree to let you videotape us. We’re not going to conduct this inspection if you’re going to videotape us.” It’s just kind of a, “Okay, you’re going to videotape us. We may videotape it or we may not videotape it.”

Frank Davis: Yeah, no, I’ve never had a compliance officer tell me I couldn’t videotape her or couldn’t photograph. I’ve never had that situation.

John Surma: Well, and on to the photographs, I mean, that’s another thing that clients often struggle with. When we ask them or when I ask them, at least take the same photographs that the compliance officer is taking because we’re never going to get the photographs that compliance officer took until after we can test the citations, there’s a lot of pushback a lot of times. They’re not comfortable doing that, et cetera, et cetera. But in my experience, not only do the compliance officers go along with that, they encourage it, and in many cases they’ll show you the viewfinder or they’ll show you the screen on their phone that they’re taking the photograph with, so that you can get exactly the same photograph. I really don’t understand client hesitation to making those photographs. Do you have a similar experience?

Frank Davis: No. I always tell clients you’ve got to mimic the file that the compliance officer’s creating. Whenever I’m there in person, I tell the compliance officer, “I’m trying to create the identical file you have,” and they’re good with that. If I’m on the phone doing Teams call or FaceTime, I say, “We’re going to be taking the same photographs and noting the same things you note, so please let us know.” And again, I’ve never had a compliance officer say no to that arrangement.
In fact, I’ve frequently had compliance officers help the clients on site frame the picture using the client’s camera to make sure the picture is the same as the compliance officer took. There are some compliance officers that are not that helpful, but I’ve never had a compliance officer that fretted over an employee looking over their shoulder to see what they were photographing so the employer could take the same photograph, so we can see what OSHA is looking at, so we can help understand the scope of the inspection and what kind of complaints or issues may stem from it.
Also, it helps us identify potential hazards that we need to resolve rapidly to avoid employee injury. So I think a good responsible employer should be prepared to take those photographs as they follow the compliance officer around. And if the compliance officer’s videotaping, because some of them do, it’s a lot more rare now than it used to be for whatever reason, but if they are videotaping, then the employer needs to be watching that videotape screen and take the same video that the compliance officer is taking. I agree with you.

John Surma: Yeah, no, I mean you don’t want to duplicate the file. So another thing that came up in the course of this inspection was we got to a point where OSHA had basically, as far as we were concerned, gone beyond the scope of the consent to which we’d given for the inspection. A certain point we basically said, “Okay, look, stop, pause. We need to talk this through. You’re not going to continue,” and OSHA basically insisted on proceeding despite the fact that they were expanding way beyond the scope of what we had agreed to in terms of the parameters for this inspection. This was kind of the third visit after the opening of the inspection.

Frank Davis: That happens with some degree of frequency though, right? The compliance officer says, “Well, if it’s in plain view, I get to go inspect it.” Or they’ll say, “Oh, I see you’ve got a front end load over there or a forklift over there. We’ve got an emphasis program, we want to address that. So I need to walk over there and inspect that to make sure it’s in compliance.” I don’t have a problem saying, “No, that’s outside the scope of the inspection,” if they can’t tell me that they spot a violation. And if they do say they spotted a violation, I think you’re well within your rights to say, “If we’re going to expand the inspection, I’d like to have another opening conference to understand how you’re increasing the scope.”

John Surma: Well, there was a little bit of a nuance here, and the nuance here is probably important to this fact pattern, which is the purpose of this visit was to do some industrial hygiene work. Rather than simply put the monitoring equipment on employees kind of periodically checking up them, et cetera, they turned this into a safety inspection as well. And that’s where we were concerned that we had agreed prior to that the reason we were letting them back in was to do the IH work, not to do a safety inspection.

And so we were trying to rein them in and naturally it ended up in a situation where it got elevated. In this case, it ended up with the regional solicitor of labor as well as the area director. We’re having a conversation with the regional solicitor of labor and the area director, it was like, “Look, we need to work this through. We need to figure out if we’re going to agree to this. We need to figure out what the constraints are that are going to be on you.”

A lot of employers are very, very uncomfortable doing that, but at the end of the day… I’ve had multiple conversations with this area director after that, it was like, “Look, when you say stop, we expect that our people stop and if it’s a stop so that you guys can kind of gather and collect your thoughts and figure out whether or not you want to continue to give us consent to proceed,” or whether it’s a, “We’re going to pause to talk through what the next steps are, or whatever,” that really isn’t a problem. It’s not a cooperation problem. And quite frankly, in this case, it’s not turning into a John Surma’s client didn’t cooperate situation, it’s turning into John Surma’s client did what is normal to do in this type of circumstance.

Have you ever had any big pushback from OSHA when you essentially said, “Look, we got to pause this. Either you need to do another opening conference or you need to stop doing this,” and if the compliance officer didn’t agree to that, getting the area director’s office on the phone? Did that ever cause you a problem?

Frank Davis: I have not had that issue with any of the current area directors in the Dallas region. I have had that problem with past area directors that have since moved on, but not with the current area directors. The current area directors, in fact, I can confidently say that in every office I’ve had inspections where we’ve had to pause the inspection to better understand what the scope is and received no negative pushback from the area office, from the area director. I’ve had issues that I’ve had to escalate above the area director in the past, but those area directors are no longer with the agency.

John Surma: Right, right, and that’s really ultimately where I’m going is what the current state of affairs is.

Frank Davis: Right. Yeah. Well, that’s the whole point of our podcast is talking about what you’re going to face in the real world today. And in the real world today, I’ve found that every area director, I feel like pausing and getting clarification would be well received by every area office or the management every area office in the Dallas region today.

John Surma: Yeah, and just for clarity’s sake, for our audience, what Frank’s saying is, “Yes, your compliance officer may be irritated with you, but ultimately the decision makers, the managers, the AADs and the ADs, the assistant area directors and the area directors, they understand we sometimes need to do this and they don’t penalize us or cause us problems in terms of additional citations or anything like that for holding fast on things.”

Frank Davis: I think it’s fair to say too, right, that the compliance officers are just employees. They’re rank and file employees, they’re not management employees. They’re employees that are directed by management from the area office and the managers in the area office are the area director and the assistant area directors. Those are the managers. The compliance officers, as we’ve said before on this podcast, are all members of a bargaining unit and all rank and file employees that don’t have management rights authority. They don’t have the right to make managerial decisions. They do have authority in the field to conduct inspections, but they don’t have authority to make other-

John Surma: Decisions.

Frank Davis: And so if the interaction with the compliance officer is not going well, I always feel comfortable reaching out to an area director or an assistant area director and having that conversation that I’m not satisfied with the way the interaction’s going with the compliance officer. And again, in real time, usually I can reach one of the managers. I suspect an employer could too, if they were reaching out directly or if they needed help from you or me, we could do it. I’ve always been able to work through those issues with the managers that either we agree to compromise our position, they agree to compromise theirs, or we reach another agreement on the scope.
Back in the early 2000s, I remember I had a compliance officer come in for an amputation and she said she was going to walk the whole facility. I called up the assistant area director after getting into a little bit of an argument with the compliance officer and I said, “Look, this is an amputation inspection. She doesn’t have authority to walk the whole site.” And the assistant area director got that compliance officer on the phone. Compliance officer came back in and said, “Okay, I’ll just see the site where the amputation occurred,” and they handled it correctly then. So it makes me feel confident to say that anybody can call in with a reasonable position and get a reasonable resolution if they’re not taking an unreasonable position.

John Surma: Yeah. And you’ve said it three times there, being reasonable goes a long, long way.

Frank Davis: Right.

John Surma: Speaking of reasonable, I wanted to shift gears a little bit. One other thing that we’ve encountered in this inspection is what I’d characterize as a blatant violation of Section 8(e) of the Act, which is intended to protect employees from burdensome and duplicative inspections or document requests in the course of inspections in the form of a document request. And one of the things that we do as lawyers when we do responses to document requests or with respect to subpoena responses is we do what lawyers do, we object, and we provide very, very particularized responses to the subpoena requests.

And one of the things that a lot of employers are really uncomfortable doing is kind of saying, “Hey, look, you’ve asked me for this stuff before. Why are you asking for it again?” In this case, it’s been asked for at least twice, I believe, three times. Section 8(e) specifically instructs the agency that they’re not supposed to engage in duplicative document requests and then burdensome inspections. And I’d argue that sending out the same request three different times, four different times is duplicative. You and I have worked on cases together and separately where this is an issue, and it’s one of those things where we get responses periodically from the compliance officers, “Well, all you sent us was a bunch of legally gobbledygook. This isn’t a legal proceeding.” And it’s like, “Well, yeah, it is a legal proceeding even though it doesn’t have OSHA v. my client, it’s still a legal proceeding. You sent out a subpoena. A subpoena is a legal document. You’re going to get a legal response.”

And so my way of dealing with difficult inspections, difficult document requests… When I say difficult, I’m not saying they’re hard because they ask for a lot of stuff, but difficult from the standpoint of they’ll use the term they’re ticky tacky or they’re just crazy, burdensome or ridiculous, is, “I kind of have to do that to fully advocate for my client. I’m sorry, but our relationship isn’t going to change. I understand where you’re coming from with this subpoena and you understand where I’m coming home with a response and it’s just work.” But a lot of times clients are very uncomfortable doing that.

Frank Davis: Well, the truth of the matter is once an inspection opens, litigation has begun, right? Because anything that the OSHA compliance officer gathers during the inspection is evidence.

John Surma: It’s discovery.

Frank Davis: Yeah, it’s discovery and going to be evidence, it could be evidence in the future proceeding. It will at minimum be evidence in the issuance of a citation if a citation is issued. And as a practical matter, it’s those first few hours when OSHA gets the best evidence against the employer, everybody knows it, right? Everybody knows that they’ve got the employer at its weakest point before it’s had an opportunity to get legal representation in place, while OSHA is contacting probably the least experienced people in the entire organization when it comes to OSHA compliance and OSHA inspections, and they’re hitting it at a really soft time when they’ve got a bunch of witnesses that they can get a lot of information from.

And that’s why it’s so very important as an employer, to plan for these inspections before they occur, to have your field supervisors know what to do, have your field supervisors know who to call, have those field supervisors know what their rights are in an OSHA inspection, because litigation has begun. You wouldn’t go to a deposition or to a court case where you’re on trial, without having some type of legal representative available to give you instruction and to protect your rights. But employers do it every day under the OSHA Act. When OSHA comes to inspect, they don’t know what their rights are.

The reality is, I think the majority of employers doing an OSHA inspection don’t know their rights. I certainly see hundreds of citations a year where the employer gave a lot of information at the beginning and didn’t manage the information well, and sometimes it leads to misunderstandings that result in citations that we have to deal with. So I think it all goes back to the original point I was trying to make is that litigation has begun as soon as OSHA knocks on the door and says, “Hi, I’m here for OSHA. I’m here to conduct an inspection.” An employer would be well-served to understand what their rights are and make sure their supervisors know what their rights are before they get started, and then to exercise those rights is appropriate.

John Surma: You mentioned something that kind of triggered a thought, and it was outside the Dallas region, so I won’t identify where, but it was somewhere with a seaport and you’d mentioned about the compliance officer being eager to get out there and gather evidence. And we had a case year or two ago where the compliance officer was so interested in getting out and talking to employees to use that in compliance officer’s words, before the lawyers got to them, that they blew through port security, that they failed to stop for port security once they blew through port security ultimately to be stopped by my client’s version of port security, because at a port, there are multiple layers of security, and basically turned back and sent home without doing the interviews that he wanted to do.

And in that case, the client was really kind of pulling their hair out about what to do about it, and they had to report to ICE and Customs and the Coast Guard, et cetera, about violation of security. And it was like, “Look, we have to elevate this to at least the area director and at least get this on the area director’s radar so that they know what’s going on with their compliance officers. And much like this situation I’m dealing with, with this difficult compliance officer in this difficult inspection, the compliance officer urged me, the area director, was grateful that we brought to their attention the fact that they had a compliance officer that essentially went rogue. But if they don’t know about these things, there’s nothing they can do to correct them.

Frank Davis: Yeah, of course. I mean, it’s the right thing to do. Again, managers have to know what their employees are doing. If they don’t know, then they can’t address it.

John Surma: I noticed how long we’ve been going. We need to wind this down. Frank, I appreciate you being here. I appreciate your friendship. I look forward to you our next podcast, and thank you so much. Thank you for our audience for joining us.

Frank Davis: Yep. Thanks everybody. Talk to you next time, john.

John Surma: Take care, Frank.

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