Safety Basics XII: Key Insights Into OSHA Investigations and Inspections

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John Surma: Welcome everybody. This is the 12th in our Safety Basics series of podcasts. This is an Ogletree Deakins production. My name is John Surma. I’m in the Houston office. I have with me today Karen Tynan, and Karen is a shareholder in the Sacramento office. Today’s podcast is on OSHA inspections and investigations. Karen, welcome to the podcast. I look forward to recording this with you.

Karen Tynan: Yay. I’m happy to be here, John, and I’m really glad we could put aside time for this podcast, which I think is incredibly important with these topics.

John Surma: I agree. And the only thing I wish when you said hooray is that I had a little musical piece to go with that or a little soundtrack to go with that. But with no further ado, let’s get into the meat of the podcast. So, in talking about inspections, it’s generally understood that when something bad happens, OSHA is going to come out, but there’s other types of inspections. Could you explain for our audience what the different types of inspections are?

Karen Tynan: Sure. And when employers hear about inspections, you’re right, they typically think about, “Oh, after an accident,” but there are a lot of other types of inspections. So, across the country, we have programmed inspections; we have complaint-based inspections; we have referrals; there can be an imminent danger inspection. And then the one that kind of gets the most kind of heartburn are the accident-based inspections, fat cat, fatality, catastrophe type inspections. And certainly, understanding the type of inspection is helpful because you can, as an employer, map out your expectations based on the type of inspection.

John Surma: So, Karen, with regard to the different type of mapping of expectations of different types of inspections, I assume there’s also a different type of preparation that employers should consider doing according to different types of inspections that might be coming.

Karen Tynan: Yeah, I’m glad you asked that. So, let’s take programmed inspections, right? So, if you are a warehouse company, you have warehouses and terminals, and you know that there are programmed inspections for warehouses, you know that there are objective criteria for the inspections. You know that there’s a national schedule of it. You know that there are local emphasis programs that are focused on the industries and operations where these warehouse hazards exist. Well then you have a lot of resources, whether it’s the Fed OSHA website, your safety department, your council to say, “Hey, if we end up with a programmed inspection of our warehouse based on what we know are an emphasis, then how do we prepare for that?” Well, we’re going to look at our powered industrial trucks. We’re going to look at our aisle ways. We’re going to look at our programs that relate very specifically to the hazards in the warehouse.
And understanding that can help you prepare much the same as you would prepare very quickly if you have an accident, and you’ve reported it under the reporting criteria. Let’s say an employee suffers a finger amputation and you report it, you can bet the COSO, the inspector is going to come out. And so, you can be prepared, you can understand the documents they’re going to ask for. You can understand the questions that they’ll be asking management, witnesses and so forth. So, I like to start out with the employer understanding the types of inspections so they can manage the inspections, for sure, John.

John Surma: And Karen, you mentioned complaint inspections or complaint-driven inspections, can you give an example or two for the audience that they understand what we’re talking about?

Karen Tynan: Sure. And I’d like to give some context with complaint inspections that during COVID, beginning in 2020, I think a lot of employees figured out how to call that 1-800 number or send in the email complaint about social distancing or sanitizing or whatever, and I think that trend has continued with complaint inspections. I see higher numbers across the country. So, a complaint inspection starts when an employee contacts the district office or an inspector, however they do it, on the phone, email, and complains about a hazard in their workplace. So, a recent example, I had a client, back to the warehouse scenario, and OSHA received a complaint that forklifts and pickers were not being maintained according to recommendations that there were seat belts missing. And so, in that case, an inspector came out and came to the front. We started our process, and they wanted to see the forklifts and pickers. They wanted to see maintenance records, training records. They wanted to inspect the forklifts and pickers being used.
So another way that complaints are processed is certainly that you receive a letter in the mail addressed to the employer saying essentially, “Hey, Mr. or Mrs. Employer, we’ve received a report of a hazard via the complaint, investigate and report back to us.” I get, probably, I’d say at least one of those a week for folks and responding to those robustly and following the Goldilocks method, which is not giving too much information or too little, getting it just right in your response is what needs to happen in responding to those complaint letters. And complaints can be everything from there’s no paper towels in the bathroom to something very, I would say, serious like, “Oh, we’re not giving fault protection.” Or, “We don’t have water and we’re working in the heat.” And John, I think you’ll appreciate this. Recently, I worked on a complaint letter that said, an employee’s mother called to complain that he didn’t feel safe at work because he wasn’t getting the right PPE. And I found it interesting that the inspector who drafted the letter to the employer included that the mother made the complaint. I’d never seen anything like that before.

John Surma: Oh, I’ve not seen anything like that before, but I’ve talked with some of those compliance officers in the past and been told that, while we can’t divulge who it was, we can identify the relationship, and it’s a parent, friend, intimate partner, whatever. And it’s like, “Okay, well, whatever. It is what it is.” And I agree with you, the Goldilocks rule is really important. I also think it’s really important that you give OSHA the sense that, look, even if there was a problem, we’ve taken steps to make sure that that problem doesn’t present a real problem to OSHA. Now Karen, one of the things that’s always kind of an issue with employers when OSHA comes knocking is whether or not to give consent or not. Can you explain to our audience a little bit about the ins and outs of giving consent, whether consent is actually required and under what circumstances? There may be some questions about consent.

Karen Tynan: Sure, John, and this is an area where we do get frequent questions to understand the power of the agency and the rights of the employers. Employers do have rights, and when the inspection starts and the inspectors knocked on the door, they provide their credentials and say, “Hey, I’m here for this employer,” and they’re establishing the scope of the inspection, the inspector will ask for consent to proceed with the inspection, and the employer can consent or refuse.
That sounds like a simple answer, but you and I both know there are a lot of nuances to consent and nuances to refusal. So, consent, you’re consenting to the scope of the inspection as it is described and agreed upon to you. Nothing bigger, nothing smaller. If you refuse consent, the next step is for OSHA to proceed to get a warrant, because OSHA cannot conduct warrantless inspections of a business premises. So that’s part of your Fourth Amendment protections.
Now, do I unabashedly recommend that every time an inspector shows up, employers demand a warrant? Well, absolutely not. They may have a good reason to be there; you can flesh that out in the opening conference. But what I can say is there have been times when employers do not give consent, and I want to give you an example. During COVID, we had a scenario where an inspector came to a nursing home and said they wanted to proceed with the inspection. And we said, “This nursing home is closed off, no visitors, but if you’ll wear all this PPE and provide proof of vaccination or a COVID test, you can come in.” And the inspector refused. So, we did not give consent, and then the inspector went and got a warrant. But when they got the warrant, there were definitely some nuances in how they presented it to the court, and we were able to subsequently have our safety protocols respected.
That’s the nearest I can give you. There was another time recently where an employer had called in an accident because they believed an employee had been hospitalized and met the standard for reporting a serious accident, a hospitalization. A few hours after reporting, the employer found out, no, the person was never admitted, never hospitalized. They checked in the ER, but then they left. They haven’t had any treatment. So, the employer called back, withdrew the report, and then a COSO showed up, and the employer said, “I’m not consenting because there’s no basis, there was no injury. You’re here to do a fat cat or an accident-related inspection, and you have no basis for that.”
I thought that was an interesting one that I wanted to make sure to mention in this podcast because that sometimes does happen. Employers are trying to meet that deadline to report, they report and later find out that the report was inaccurate, and then there really is no reason for an inspection. I do think it’s important to work with your internal experts in the company, whether it’s your GC, your outside counsel, whoever, if you’re going to demand a warrant, it is a process that needs to be robustly discussed, and I think you’ll agree about that, John.

John Surma: No, I absolutely agree, Karen. It is something that I’m reluctant to do under almost any circumstance, but in the vast majority of circumstances where I’ve even threatened that in order for us to agree we’re either going to put these limitations on our consent, or we’re going to require that they get a warrant, we’ve always been able to get to the point where there’s alignment relative to the terms and conditions under which OSHA comes into the facility. Shifting gears a little bit, one of the first steps or a first step in an OSHA inspection is the opening conference. Can you give our audience some best practices relating to opening conferences?

Karen Tynan: Yeah, and I like this question because it starts the employer off on the right foot. So, first of all, you should have that management representative who is going to deal with OSHA and who’s prepared and understands their role, understands the employer’s rights, understands what they’re consenting to, or what they’re not consenting to. I also like to see opening conferences happen in a conference room away from other activities with some privacy. I like to see employers have counsel like you or me on the phone at the start of the conference or their GC, whoever, because that’s where you’re establishing consent, the scope of the inspection, what’s going to happen on the inspection. Just a lot of the details.
I also like for the management representative to make sure they’re communicating very effectively with the inspector and that the inspector’s communicating effectively with the management representative so that we all understand what type of inspection is this? What machine are you going to go look at? What are your expectations about witness interviews, which I know we’ll get to? I always like to plan those at a later time. We’re not just going to walkaround the facility tapping people on the shoulder and pulling them away from their machine or what they’re doing. So, I like an effective opening conference that looks like that.

John Surma: I tend to agree. I mean, I think that spending some time in the opening conference, and I’ve seen situations where folks want to sort of accelerate that process, and those folks can be the folks from OSHA, or they can be the employer and generally speaking, I think, I don’t want to say slow rolling it, but certainly taking your time during the opening conference makes sense. Probably the most feared component of the OSHA inspection is the walkaround. Generally speaking, other than not being prepared for the walkaround in the first place, what other types of issues do you normally see as kind of the big faux pas associated with the walkaround?

Karen Tynan: I’m going to tell you my pet peeve, John, and you can kid me about it for years to come. I cannot stand when anyone, whether it’s an inspector, a safety professional, or one of our peers talks about the inspection as a tour of the facility. It is not a tour, it is an inspection. You get a tour at an amusement park behind the scenes. You get a tour of a fancy building. You take a tour when you’re on vacation, and you’re looking at the beautiful temple in the Middle East or Far East, whatever. So, it’s not a tour. You can’t think of it as, “Oh, we’re walking around looking.” No, this is a very serious inspection. So, I despise the word tour associated with the walkaround. So, okay, I’ve gotten off my soapbox.

John Surma: I have to say, when people use the word tour, I think of the SS Minnow and the three-hour tour. I never use the word tour in day-to-day life or in this context, I get where you’re coming from, but any other kind of major mistakes with the walkaround.

Karen Tynan: Sure. I also think that sometimes too much chatting, too much talking, too much informal conversation. The management representative is there to watch and learn, not to make a pitch about the company or make a pitch about safety programs. When I see inspector notes when we’re in litigation, the inspector doesn’t write notes and indicate, “Oh, informal conversation with Mr. Surma walking around.” They write down, “Mr. Surma interview notes.” They consider it an interview. They consider you to be speaking on behalf of the company. So cut down on the talking, chatting, and informal conversation.
I also don’t like for the walkaround to become a distraction to workers. I like to make it very efficient, use the shortest route possible. And because I don’t want to see workers distracted. Frankly, I think it’s a safety issue. I don’t like walkarounds where people think, “Oh, we’re just going to stop and talk to this worker on the line at this conveyor belt, it’ll take a couple of minutes.” First of all, that worker’s going to be distracted. Second, the worker is not in any way prepared to speak to OSHA. And third, we haven’t provided the employee with any kind of preparation or reminders about their rights. We don’t have possibly the union there. We haven’t assured the worker of our non-retaliation, non-discrimination policies. It’s not private.
So I always start out at my informal conference saying, “Hey, during the walkaround, you’re going to go to this area. We understand that you’re inspecting this part of the facility, and when you do want to do interviews, come back to the conference room. We’ll work with you on scheduling those interviews, but we are going to maintain our safe operations and pulling people off the line or tapping people on the shoulder is not safe, and we just can’t do that today.” And I win on that a hundred percent of the time, John. So that’s what I want to see from employers, and you should feel very comfortable doing that, it is within your rights.

John Surma: I pretty clearly explained to folks when they come out that we’re not doing demonstrations. I mean, I make sure that my client understands, but then I also make sure that the compliance officer understands that you get to see what’s going on, but we’re not going to do specific demonstrations. Please don’t ask our folks to do that. And generally speaking, they’re pretty compliant with it, although I think some of these folks just can’t help themselves but ask for demonstrations at which point I quickly intercede and, “No, no, no, no, we’re not doing that.”
Another element of the inspection, and oftentimes it’s part of the opening conference, but sometimes it’s part of the wrap-up after the walkaround, is the request for documents. My general practice is that I require that all document requests be put in writing; it doesn’t mean something on letterhead, that simply means an email or what have you, because document requests that are made verbally tend to be confused later on down the road. I’m curious what your thoughts are about how you would generally handle document requests.

Karen Tynan: I’m a hundred percent team John on, I want them in writing because I don’t want any confusion. And typically, we’re going to see that request for the OSHA 300 logs, the safety programs, some procedures, documents related, if it’s an accident, related to the machine or the folks involved in the accident. They’re going to ask for safety, meeting records, training records, maybe even facility drawings or details. I see a lot of requests now for video because so many facilities and places have video on the floor or video in trucks or video of a yard, like a warehouse yard. So, I think being prepared and knowing those document requests are coming, and so let’s make sure we have those OSHA 300 logs ready to go at any time. Let’s make sure that we’re not caught kind of flat-footed in dealing with document requests that may be about a particular machine or our lockout/tagout training. So that’s what I say to folks about document requests.
And I do like to avoid, I want to share a few mistakes that I see or areas that are fraught with risk. So, sometimes employers won’t have a document, but they’ll say, “Oh, I could create that document.” Whether it’s a list of employees who have access to an area or some kind of training document, document requests are not requests for you to create documents, they are requests for the documents you have. So, I like to really be mindful with clients who are enthusiastic about “creating” documents.
Another point I sometimes see, especially if companies have been purchased or there’s a change in ownership or a change in branding are legacy documents with old company names or an older version of a document that maybe has an HR director or a safety person’s name from eight or nine years ago. It just doesn’t look good. So, I really do not like legacy documents that create confusion about who the employer is or who the director of safety is or how we’re maintaining our safety programs.
And I do want to be mindful of employee privacy when we’re giving documents. This is my last point that I’m really pretty personally just I would say energetic about, enthusiastic about and mindful of is when we’re giving documents to OSHA, sometimes it’ll have employee Social Security numbers on it, date of birth, maybe they’re next of kin. Sometimes there’s medical information, if it’s an accident report or something from a hospital, we need to be mindful of employee privacy and our requirement as employers to protect that employee privacy. So, there’s enthusiasm from the employer to be compliant with a document request and to be quick and to be thorough. Let’s have that same enthusiasm for protecting employee privacy and make sure we get it right under either individual state privacy laws or federal requirements.

John Surma: Yeah, and I will say, and I know that others in the practice do things differently, and everybody’s got their own style, but I’m pretty liberal with my redaction pen and have a tendency to redact heavily, and I tend to mark everything as confidential business information, even stuff that’s kind of questionably confidential business information because at the end of the day, there’s a lot of stuff that’s contained in our client’s documents that are confidential, trade secret, proprietary, whatever term you want to apply to them.
Shifting gears a little bit, another component of the OSHA inspection is the interview. And during the webinar we did relating to this same chapter, you gave some high-level overview, high-level points related to interview process, would you go ahead and share those with this audience?

Karen Tynan: So first, John and I both know that we could do an entire podcast series just on interviews and on management interviews, non-management interviews, best practices and all that. Here are my admonitions in this podcast is, let’s make sure to schedule interviews with enough lead time to get the best results. We want to prepare every employee who’s going to be interviewed, we’re going to explain the process for them, which can be very intimidating, and we’re going to have these employees understand their rights, understand who the inspector is, what they’re going to be asking, and that all we want is for the truth to be told. We also can work with employees to anticipate questions about training on a particular machine or what their onboarding was like. And another important part of interviews… And you and I, I know at seminars, we’ve done entire hours on management interviews and preparing managers, supervisors, superintendents, high-level folks for interviews so that they can answer questions effectively and honestly and also with the understanding that when managers are interviewed, their answers are answers on behalf of the company.
So with all that being said, John, I do want to share a couple of highlights from my typical preparation outline for folks that are going to be interviewed. Now, I always tell people, “Look, OSHA is going to interview you. Here’s the process,” I explain their rights. At the beginning of their preparation, I tell them, “Hey, be honest. Don’t worry about whether an answer is a good answer or a better answer or the wrong answer, just tell the truth. That’s all the company wants to have happen.” I explain my role, that I’m not their attorney. There’s some standard admonitions. Importantly, I also remind employees not to guess or speculate, that it’s fine if they don’t know an answer because the inspector will understand their answers to be based on their own perceptions and the facts that they know.
I also like to review the employee’s training. So, when I’m preparing employees, a lot of times I’ll say, “Oh, here’s your training records. Oh, your forklift training was in February,” things like that. And I also will review a narrative about any accident. I do find that reviewing a narrative about an accident with employees can be quite an emotional experience for employees and sometimes for us attorneys, too. And so, I like to run through the narrative to help the employee understand what they’re going to be asked and to help them work through, let’s say some of the emotional aspects of the interview. And then I always, in closing, remind them about telling the truth. I think it is important to understand when employees are being interviewed. These inspectors are looking to find out if there is employer knowledge of a hazard or employer knowledge of an unaddressed hazard or maybe a lockout/tagout that wasn’t being done or a guarding issue. So, I do try to understand from the interview preparation where we’re going to land on employer knowledge.

John Surma: Well, speaking of landing, it’s getting to the point where we probably need to wrap this up and land this baby. But before we get there, there’s one other kind of big component of the OSHA inspection, that’s the closing conference. Could you talk to the audience a little bit about what a closing conference is and the types of things that employers should consider doing during a closing conference?

Karen Tynan: Yeah, I think this is a great end to the podcast and super helpful. So, with the closing conference, that’s when the inspector will advise the employer about the investigation, and many times they’ll also reveal their intended citations, what their findings are. So, it typically starts out with a few admonitions that are very canned about employer rights and don’t discriminate or retaliate against your employees, and so forth and so on. That usually takes a couple of minutes. And also, the inspectors may confirm the employer’s correct name, mailing address for the citations, or how the citations will be served, and then discuss the inspection and any citations.
Now, I find that this varies wildly from inspector to inspector and depends on the citations, the situation, but here’s my big takeaway for our listeners, John, just be respectful. Even if you disagree with the inspector’s findings, or you think that maybe the inspector is being heavy-handed, the closing conference isn’t really the time to make your big pitch about a case. You can certainly agree to disagree respectfully, or you can say, “Oh, well, we don’t agree with your measurements on that machine,” but it’s not a time where you are going to convince the inspector that those six serious citations he’s planning on mailing to you tomorrow are going to be withdrawn or vacated or deleted. That’s just not going to happen.
And so, I try to maintain that professional working relationship with the inspector, understanding that the closing conference isn’t some kind of final pitch to make to the inspector, but instead marks the end of the investigation, but also we may see that inspector again in the future and we may be deposing that inspector, all of that, I like to have that context with employers. I don’t know if you have any other ideas about the closing conference, but I think it’s pretty perfect to end this podcast on that.

John Surma: Karen, it’s interesting that you mentioned the closing after the inspection because a lot of times folks get really wrapped up on this idea that, “Oh, we had a closing conference when OSHA was out there, now they want to have a second closing conference. There’s something wrong here.” There’s absolutely nothing wrong with that, OSHA does that all the time. It’s very routine for them to have a “closing” at the time of the on-site visit, which is really more a wrap-up meeting. And then there’s a second closing later on down the road after they’ve had time to look at the evidence, after they’ve had time to review things, and that’s a lot of times when they actually make the recommendations relative to citations. But I think, overall, in terms of the tenor of those conversations, you hit the nail on the head.
Ladies and gentlemen, with that, we’re going to wrap up this podcast. We went a little longer than we normally do, but I think that there’s a lot of valuable information here. We welcome you to come to our next episode, that’ll be with Ryan Swink, and we’ll be talking about criminal enforcement. Until then, stay safe. Thank you so much.

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