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OSHA Nuts & Bolts: Handling OSHA Audits and Litigating Citations

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OSHA Nuts & Bolts: Handling OSHA Audits and Litigating Citations

The Biden Administration’s proposed budget for the Occupational Safety and Health Administration (“OSHA”) seeks, among other things, funding to hire significantly more OSHA inspectors in 2022 and beyond.  As businesses brace for aggressive enforcement in the coming years, this program is designed to help attorneys assist their clients through an OSHA investigation.  You will hear from a former OSHA trial attorney while he reviews the investigation process from the opening conference through the issuance of citations.  The program further addresses considerations attorneys need to be thinking about when advising clients on whether to settle or litigate OSHA citations.  Often these important considerations include how OSHA citations will affect third party claims which may present significantly more liability than the OSHA penalties themselves.  Moreover, the program discusses best practices during the investigation process and settlement strategies to achieve client objectives while minimizing risk of future repeat or willful violations. 

Presenters

John Ho
Co-Chair, OSHA-Workplace Safety Practice
Cozen O'Connor

Transcript

John Ho - Hi, everyone, thank you for listening on the presentation, OSHA Nuts and Bolts, Handling OSHA Audits and Litigating Citations. My name's John Ho, I'm a partner at Cozen O'Connor and I co-chair Cozen's OSHA Workplace Safety Practice. I won't bore everyone with my full bio except to say that, prior to coming into private practice, I spent a number of years prosecuting these OSHA cases with the United States Department of Labor Office of the Solicitor as a trial attorney. So I'm trying to bring some of that experience and some of that perspective into the presentation today.

So, without further ado, let's jump into this. I think a first starting point in discussing OSHA is to talk about the Act itself. So, the Occupational Safety and Health Act of 1970 is the OSHA statute, of course. It covers most private sector employers. One thing to bear in mind when you're engaged in OSHA practice is that there are approximately 22 states or U.S. territories that have OSHA approved state programs, or they call them OSHA State Plans. And what this means is if you are in one of those states, California is one of those notable states that has its own program called Cal/OSHA. Each of these states are certified by OSHA and approved to run their own OSHA State Plans, and they have to be as minimally as protective as the federal standards, but often, as Cal/OSHA does in many areas, it exceeds the federal requirements. So, if you are practicing in those states, particularly Cal/OSHA, it's always important to remember and to check on those individual state plans to see if they have requirements above and beyond federal OSHA.

Procedure wise, I found and I can't say I've practiced in all of those state territories, but they are very similar to OSHA, so there is a much, there is a lot of overlap, but again, you know, Cal/OSHA is one where even the procedures of issuing citations is somewhat different from the federal. So again, just bear that in mind, make sure that when you are involved in these audits, you are looking at those state plans themselves. It does exclude, there are some limited exclusions from OSHA such as folks that are self-employed, immediate family members of farm workers, and workplace hazards regulated by another federal agency. For example, Mine Safety and Health Administration, MSHA, for example. So, if it's a safety issue within a mine, an agency like MSHA could have jurisdiction in which case, OSHA would not apply. There's also Memorandums of Agreement between agencies like the Federal Aviation Administration on when they have jurisdiction about safety issues related to aviation safety. So, just be aware of some jurisdictional issues as well if one of your clients gets cited and they might implicate another agency's jurisdiction. It does happen, but it's not that common. In terms of, you know understanding how the department is set up with OSHA, I think that's important to understand where the audits are coming from and the direction on which they move up in terms of supervisory review. So, there are OSHA area offices, you know, across the country, and at the sort of ground floor level you have CSHO, that's an acronym for Compliance Safety and Health Officer, and I'll use that, you know the parlance and safety CSHO moving forward. So, the CSHO is the investigator who's gonna knock on the business's door and say, hey, I'm here to do a safety or health inspection, and go through that process which we're gonna talk about in more detail in a few minutes.

From there, OSHA has assistant area directors and usually, depending on the size of the office, there's one for safety and there's one for health. Safety is their traditional, if they have a fall protection issue, a machine guarding issue, a lockout/tagout issue, the assistant area director for safety is gonna oversee those kinds of investigations. And on the other side, the assistant area director for health is gonna deal more with hazard exposures, permissible exposure levels, asbestos, for instance, those kind of related issues. Both of those assistant area directors report into an area director who then reports into a regional administrator who has jurisdiction over a number of particular region in the country. So again, for purposes of handling audit, you're most likely gonna be dealing, certainly, with the CSHO. When you head into the informal conference stage, you may be dealing with the assistant area director or the area director. And as we talk about those topics, we will mention who the likely players at OSHA that you're dealing with, but in terms of having issue that you need to escalate up, if you wanna speak with the CSHO supervisor, that is generally, the hierarchy at the field level at OSHA.

So, let's talk about a notice of contest, which is when you have a situation where OSHA issues citations and the business does not agree with it and you file a notice of contest, which is essentially is an appeal of the OSHA citations. Well, where does that go? In terms of litigation, all notice of contests are litigated before the Occupational Safety and Health Review Commission, OSHRC is the acronym there. And these cases are litigated by the U.S. Department of Labor, the Office of the Solicitor, which is the legal arm of the Department of Labor. They have other jurisdictional charges in addition to OSHA, such as, you know FLSA or ERISA.

But focusing on OSHA, the complaint will then be filed once the notice of contest is received. It is sent to OSHRC, who will docket it, and it's an all electronic filing system like the Federal Courts, and the OSHRC, the Chief Judge there will assign your case to a particular Administrative Law Judge who will then be the fact finder for that particular case. In ALJ's decision, it can be appeal to OSHRC under the OSHRC rules, there're generally no depositions and they follow the federal rules of evidence. But I have found that the SOL, the solicitors, the Office Solicitors Attorneys are usually amenable if you want to do depositions, obviously, you know, you should have a reason because it is pursuant to the rules, the exception, as opposed to the norm, but if it's a serious injury case, certainly a fatality or a classification like a repeat or a willful, usually there's not a problem getting, opposing counsel from the government to agree that depositions are appropriate. And even if that particular lawyer doesn't agree, you could certainly go to the judge. And I think, again, generally speaking, those applications are granted. A few things in terms of the appeals, OSHRC appeals are discretionary, there's no matter of right. And in terms of OSHRC itself, there are three commissioners there, one it's a full body, and appeals from OSHRC, and then go to the relevant U.S. district court or the territory that the case is coming out of.

In the OSHRC proceeding, there is a expedited proceeding called simplified proceedings. So, this is something to be aware of because, obviously litigation is expensive in any forum, no less so before OSHRC, and so if there is a relatively straightforward citation, OSHRC does recognize that and has a specific venue that those can be litigated in. And again, you could check out the simple right proceedings rule to see if a particular citation is gonna qualify, so you can advise the client in terms of cause moving forward of the litigation. But generally speaking, they are limited to when there are, you know relatively few citations, the aggregate proposed penalty is not more than 20,000, the citations do not involve willful or repeat classifications, and we will certainly discuss the classification component to citations in this presentation. It does not involve fatality and the hearing is expected to take less than two days. So again, something to be aware of in terms of costs, otherwise you're in a full ALJ proceeding, again, applying all of the federal rules with some limitations, such as the deposition issue we just talked about.

Another concept that I think it's very good to be aware of is EAJA, the Equal Access to Justice Act. And OSHA has its component of EAJA which essentially, provides an award of attorney's fees or other expenses to eligible individuals and entities litigating before OSHRC when they prevail over the Secretary of Labor, unless the ALJ determines that the secretary's position in the proceeding was substantially justified, or special circumstances making an award unjust. And so, though you should check all those rules to the extent that you may have the client that is an eligible individual entity, and not surprisingly, those are limited to smaller employers with, I guess, limited means so that, in order to ensure that they have the ability if they really think that they've got a strong case, that you may have the opportunity to shift fees in that case, if you litigate a matter before an ALJ and you prevail on it.

Again, subject to the substantially justified or special circumstances. I will just say there two, as in an award of attorney's fees in federal court, the rate is not gonna, you know be your normal rate, it's probably gonna be substantially lower than that, but again, it is a venue, and sometimes it's a good pressure point when you're negotiating with the Department of Labor and you have a client who is eligible for EAJA, it's always good to mention that, obviously, if the department loses a case and gets it with EAJA fees, that gets their attention at any level. So, if you are in that position where you do think you have a strong case, it's certainly worth mentioning that, that particular business is EAJA eligible, and, you know, it may or may not make a difference, but I think it's always a good leverage point, you know to let the department know that, that might be involved.

So before we, you know, talk about the actual OSHA litigation issues, one thing that is, you know very important when you're handling these OSHA cases is to appreciate that it is not just about OSHA, meaning that if you get hit with citations, and how you settle citations, and how you litigate, how aggressively you wanna litigate citations, there are usually many collateral issues that you really need to consider and talk through with your client, because it's really gonna effect how you settle cases, when you settle cases, the language that you need in certain settlement agreements. And by way of example, you know, we'll go through a couple of these considerations that you normally just want to make sure you're discussing.

So, contract liability. So for one, often, particularly if you've got subcontractors or you are a subcontractor, you got a general contractor, if you're working with independent contractors, and you've got folks on your site or you're sending folks to someone else's site, that contract, even with staffing agencies, usually has some language about who's responsible for health and safety, and often will mention OSHA in particular, that so and so is required to comply with all applicable safety and health laws, including but, you know, not limited to OSHA compliance. So, we wanna understand that if there is an OSHA violation and you accept it, will that impair or somehow trigger contractual liability and likely indemnifications provisions that go on. If it's a large contract, you know would the other party, you know, would have a right to end the contract if there is a violation of that provision? Obviously, if it's a significant contract, we want to be aware of those issues about potential termination pointing to a breach of the contract and the breach of any OSHA indemnification provision. So again, that is one area, you know that has collateral effect on these OSHA citations.

Workers' compensation is another. Obviously, workers' compensation is a creature of state law, so from state to state, you may have, you know different standards in terms of what's in and out for workers' compensation, but of course, generally speaking, workers' compensation is an exclusive remedy, but, you know often, if a plaintiff's lawyer is trying to get out of the worker's compensation system by arguing it's gross negligence or some kind of intentional tort, and most states, obviously, have some kind of exclusions at a pretty high standard, they could report to OSHA citations particularly if they're classified as willful or repeats, so they could be used as evidence to get out of workers' compensation. So again, you just want to be aware, that's another issue you wanna take into account. If there was a serious injury or in the worst case scenario, a fatality arising out of citations, then it's, you know almost certain you're gonna see some general liability claims, third party claims, you might even get product liability claims and your client may be dragged into those. And quite frankly, if it's particularly it's a fatality, for obvious reasons, the liability on that side of it, the general, the GL side of it, if you will, is probably gonna be so much greater than your OSHA fines, although we'll talk about what the OSHA penalties can look like.

And so, and again, often, OSHA citations can be used as exhibit in those general liability claims, and the language that OSHA cites you on and the alleged violation description, which is part of the citations we're gonna talk about in a little bit, can impact those claims significantly. And often, with the fatality cases, that's really what's driving the settlement, is making sure that we minimize any impact that those citations can have on those third party claims. And related to those, again, are negligence claims, tort claims, that all go part and parcel with that. If you've got clients that are engaged as a federal contractor into public bidding either at the state or the local level, often OSHA citations, the number of citations, the classification of the citations can have an impact on your client's ability to bid on those projects, so that's another consideration that needs to be taken into account when resolving these. And union organizing is also another, or, you know for that matter, bargaining when contracts expire in the union organizing campaign, often you see, you know the union organizers will point to the health and safety history and the OSHA history of a client, saying, look, this is why you need us, it's an unsafe work environment, we can help clean up all those things. Or in bargaining, you know sometimes right before bargaining comes up, or during a hard bargaining, you'll see, you know a number of safety related complaints come up, and often that can be used as leverage in those situations. So again, those are just a few examples of the kind of issues that are outside, technically, the citations themselves, that really need to be considered.

So, let's talk now about general obligations under OSHA, and, you know for those of you know, have the opportunity to look at the OSHA regulations, I mean, they are obviously very detailed, long, eight inch fonts, you know, couple of feet long, but I'm gonna try to break down some general categories. Obviously, we're not gonna talk about every standard, but just generally, what you need to be aware of in terms of what OSHA covers. First, OSHA does, you know have poster requirements like, you know pretty much every other employment law and what needs to be posted to employees so they have notice of their rights, so make sure we're complying with those poster requirements. OSHA has, you know large section dedicated to informing workers about chemical hazards, and that's done through certain training requirements, several label requirements, the color-coding systems and chemical information sheets, and other message, such as the safety data sheets, used to be called the MSDS's, providing information about what chemicals are being used. Again, to mention, there's a number of training provisions. If it's forklift is for one, you have to have certain kind of forklift training. Another main category is the record keeping provisions of OSHA, and under that, there are generally three forms, an OSHA 300 form, a 300A form, and a 301 form, which is the log, this log and the summary. So those, there is a record keeping component to this. Now, there is an annual electronic submission for 300A forms for covered employees.

Again, we talked a little bit about the health side before there are permissible exposure limits that the regulations to cover depending on the particular substance that issue, another large category that OSHA regulations talk about is of course, as personal protective equipment, PPE. I think all of us in the last couple years with COVID, certainly understand, you know, that concept and what PPE needs to be provided in worn of course, is gonna depend on the particular hazard. OSHA covers other hearing exams and medical testing, and they have their own record keeping rules when you do environmental testing and medical exposure records that you need to be aware of. OSHA, you know, again, like pretty much every other employment statute has an anti-retaliation, whistleblowing piece. And of course, OSHA takes those complaints very seriously. I mean, obviously with whistleblowers, they get a lot of their information through that. So that's very broadly interpreted and OSHA's, you know, very aggressive in reviewing those complaints outside of the actual substantive health and safety issues. And on the whistleblowing side, you know, the Section 11 of OSHA's, the retaliation provision built within OSHA. But interestingly enough, OSHA has been charged with administering, you know, more than 20 different whistleblowing laws from Sarbanes-Oxley to surface transportation that covers commercial drivers.

So you may find yourself in one of those, depending on the subject matter. And again, OSHA's charge to enforce those as well. So other things outside of Section 11 itself. The next thing that would be helpful as a reminder for those practicing this area, because it's sort of the exception that normally you do not have to, a business does not have to report an accident to OSHA. You know, when it happens on the work site, sort of in the normal course, yes, you have to put it on your log and put it on your summary. Some of those, the record keeping forms we just talked about, but with the exclusion of fatalities and inpatient hospitalizations, amputations, and loss of an eye, you know, those just go on your form. You don't have to call OSHA directly, but as I just mentioned, there is an affirmative reporting requirement to OSHA. And that is if you have a work-related fatality that must be reported to OSHA within eight hours. If you have a inpatient hospitalization, an amputation, and a loss of an eye, that must be reported to inform the OSHA within 24 hours, OSHA has a fact sheet out there that you can google and find with information on where you can make that contact and what information is required.

Generally speaking, there's a 24-hour hotline, 1-800-321 OSHA, or you can call the nearest OSHA area office during normal business hours. And there is now an online form that you can fill out as well, that is available on OSHA's website. And generally they're asking for the business name, the name of the affected, the name of the employees affected, location, the time of the incident, you know, a brief description, the incident contact person and phone number. So and, you know, most of those cases, once you report that you could probably expect OSHA to come knocking to inquire about the underlying facts giving rise to the serious injury or fatality. And it can expect an audit in that situation in most situations, although sometimes that may not happen. They may just send a phone in fax form asking for information and making a termination whether they wanna send a casual out, but do expect that, you know, I would expect the actual, the CHSO to come if you are affirmatively reporting. The next concept that I think it's important to talk about. And again, I think a lot of us who historically, you know, may not had a lot of contact with OSHA, but through COVID, have probably studied it a little bit more closer.

Is the General Duty Clause, right? So the General Duty Clause which is Section 5 of the Occupational Safety and Health Act states that employers are required to provide employees with a place of employment that is free for recognized hazards that are causing or likely to cause death or serious harm. So basically what that provision of the statute says is look if there's no particular regulation that governs this particular hazard, you still employer have an obligation to provide a workplace free from recognized hazards. So I think the most, again, the most recognizable case here recently is COVID right, just OSHA put out an emergency temporary standard that governed that the Supreme Court rejected it.

But prior to that ETS being put out, even after it, OSHA could come in, do a workplace investigation and say, hey, employer, you are not, COVID-19 is obviously a recognized hazard. You are not doing enough to protect your employees from that. And the OSHA cannot point to one, two or three specific things. But what they can say is in the totality, you're not doing enough, right? You're not, you didn't give out mass, you're not implementing social distancing, whatever it may be, and then say you under that provision. And so other common areas where OSHA has cited under the general duty clause, workplace violence is one. And I will say, just pause here for a minute and just say, for those of you that are practicing in this area, or will be practicing more in this area, this is one area where I think we're gonna, you know, we will probably see much more aggressive enforcement with OSHA. I mean, obviously, particularly with all the tragedies, with, you know, workplace violence issues in the last couple years with guns, this is certainly on OSHA's radar, ergonomics.

Again, historically it been an area that, although at one time, you know, 20 or so years ago, there was proposed ergonomic standards. Those were eventually withdrawn and not implemented. But if OSHA determines that you have ergonomic violations, again, you could be cited on the general duty clause. Cold weather, heat stress. Again, for those of you that are have businesses in construction, you may know this already, OSHA has put together a proposed rule making. So we gonna, you know, expect some specific standards for heat stress, probably, you know, six months a year from now that process takes a little while, but they're affirmatively doing that. So, but until that happens, those are the kinds of issues where there's no standards, but OSHA can still set you on the general duty clause. So things to be aware of. The next, you know, thing I think is certainly always worth mentioning when talking about OSHA is OSHA's top 10 list, right? So every year when the data is available, OSHA will put up their top 10 citations from the previous year. So if you have a client that is, you know, wants to get ahead of OSHA issues, or they wanna revisit their safety and health practices and they're not sure you know, where to start or where to best to utilize their resources, I think it's always helpful to suggest looking at the, you know, the top 10 list for the previous year.

We have the numbers for 2020. The number one is Fall Protection and other hazards include Hazard Communication, Respiratory Protection, Scaffolding, Ladders, Control of Hazardous Energy, Powered Industrial Trucks, Fall Protection, Eye and Face Protection and Machine Guarding. Now, although, you know, any given year, these particular hazards may move up or down a couple numbers for the most part, they're pretty consistent over the years. Although the order may change a little bit and you know, every now and then, something will sneak in or something will, you know, will drop off. But again, for the most part, they're pretty consistent. So, you know, to the extent that you are looking to apply, you know, your resources and areas that are likely to be this subject of OSHA citations, particularly if you're in construction and manufacturing, this is a good start. In terms of penalties. For a while, you know, since 1990, actually penalties had not gone up. And that caused a number of, you know, different groups to complain about that. And so in 2016, the law was changed. There was a significant increase then, but also there's now a provision where there's an annual indexing based on the Consumer Prices Index that will increase OSHA penalties.

Right now, as I speak on March 9th, 2022, for this presentation, the current penalty amounts for repeats and willful are $145,027 serious. And other than serious violations up to $14,502 per violation, a failure to abate, a hazard from a citation also carries a $14,502 per day beyond the abatement day penalty. Those are, you know, those are the civil money penalties, you know, part of this the ones that hit you in the pocket book, but you should also be aware that OSHA does have, you know, criminal penalties for things like, you know, lying to an investigator. And if they're willful violations found that related to a fatality and different DA's could also prosecute healthy and safety fatalities, the Manhattan DA's office, for instance, that was one of their priorities for a number of years, looking into health and safety related fatalities. So be aware of those as well. It's worth mentioning that again, as of, you know, today's, when I'm doing this presentation, Build Back Better is at least seemingly dead for the moment but there were proposals and Build Back Better that had very significant, you know, increases to OSHA penalties. I believe there were $70,000 for the serious and other than serious. And obviously from the current 14 that, you know, that's gonna be, you know, very significant, you know, I doubt that we'll see anything that's passed that is close to that, but we very well could see a significant increase from the current amounts if some version of Build Back Better is eventually passed. So let's talk about now the substance of a workplace inspection.

So the CSHO comes, they knock what happens from there? What should you be aware of, you know, what are the procedures? Well, so there's no prior notice to inspections, so you're not gonna get OSHA calling up and saying, hey, I'm going to come, you know, next Friday and do an inspection. In fact, there are provisions that make it a crime to notify a business when an OSHA inspector is gonna show up. So there's no prior notice. The first thing the CSHO should do is hand his or her credentials to the business, and always ask for those credentials, it's rare, but actually in my 20 years of doing this, I've had one or two occasions where somebody acted as a CSHO to try to get in. You know, obviously, like I said, you know, I doubt that would really be the case in most instances, but it is always worth checking their credentials, getting their card, getting their names. And then, you know, talking through the investigation and the inspection process with the CSHO, which we're gonna get into now. But one other issue that they do wanna talk about, it's established that an employee does have a right to ask the CSHO for subpoena before coming in.

So that's out there, I would say that, you know, most the vast majority of management lawyers that do this generally do not advise asking the CSHO for a subpoena. I mean, look, you can, it's within your right or, you know, a warrant, you know, for that matter. But in those circumstances, you know, the procedure is clear that they're not supposed to hold that against you and you know, whether they do or they don't, usually it's setting not only the wrong tone, but they back much more aggressive. It might be one or two more CSHO's with them, but they're look, there may be situations where you do want the warrant, but I would say it's a general matter. You know, the majority of advice is as long as you can confirm the credentials and you can work out how the inspections can be done, where they're gonna go, the scope of it, which we're gonna talk about, you know, in a minute, you know, we should let them in and we should cooperate. I think cooperation with any government audit, I think usually goes a long way in helping, in working with you. And if you do get citations, negotiating penalties down and good faith is part of a statutory factor in terms of what penalty is gonna be issued, but do want to make you aware of that.

The one, you know, exception to that though, is drones. So OSHA, like many other agencies is getting caught up in the modern world using modern equipment. And drones have been starting to be used by OSHA in the last couple of years. And I think we're gonna see more use of drones. In fact, not so long ago, they issued some revised guidance on the use of drones. And so if it is because it hasn't, it's not widespread use. I think if a CSHO does come in and want to ask you for consent to fly a drone over your workplace. I think that's one I would advise the client to say, no, obviously if you wanna come into the work site, do the old fashioned inspection. We don't have any issues, but drones, I think because they're not used as much, the parameters aren't as well defined, and that OSHA has this rule, that if they're coming into inspect a particular complaint, then that's what their jurisdiction is.

So let's say somebody got hurt on a piece of machine that is, you know, in the warehouse. And so when you speak with a CSHO, you're gonna say, okay, they're gonna tell you why they're there. You know, they won't tell you who filed the complaint, but if it's complaint driven, they'll say, okay, can you please show me that machine. And then that's the scope of your investigation. And you can walk the CSHO, you know, in the most direct line possible from point A to point B where their machine is. But as there, the CSHO is walking through the facility. If they see any hazard in plane site, you can be cited for that. So as they're walking from the, you know, the lobby area to the warehouse, they look down and they see an exit door blocked with pallets, right, obstructing an emergency exit, which is somewhat common citation in the manufacturing industry and warehouses, you could get cited for that, right? You know, that is, you know, that is part of that process.

But with drones, that concern is clearly exaggerated because obviously at a bird's eye view, the CSHO's ability to stop plane site hazards becomes much more significant. So that's part of the reason why I think for drones that at least we're not there yet. I'd probably push back on the use of drones. And again, it was a good talking point to make you aware of this plane site exception, because otherwise, if they come for a complaint-driven audit, they should not be saying to you, I'm just gonna do a wall-to-wall audit of your whole, you know, your whole premises. Right, and if that's the case, then that may be a situation certainly if counsels involved, you know, have them speak with the CSHO, or you may ask for, you know, a warrant in that situation, if they come and even not gonna be reasonable, but they really should be limiting their, to scope their audit to whatever that complaint may be. You also have, the CSHO will also give you a reasonable amount of time to contact a key employer representative. And we're gonna talk shortly about who that representative should be. In my experience, it's usually about an hour. So if you have to sit the CSHO down and say, you know, get here is some coffee, put them in a room and say, we've gotta go get so and so, our safety officer who will walk you through this usually in hours, I think is a reasonable period to ask them to wait.

Another thing when the CSHO first comes up, that you really should be aware of is if they are going to any portion of the premises that has trade secrets, you really should get ahead of that issue with the CSHO, discuss with the CSHO what is constituted the trade secret. Talk about the scope of protection. And if they're asking for documents that has trade secrets, the ability to label them confidential trade secrets as well. So, and if there are certain parts that aren't relative to the investigation that you want to close off, speak with a CSHO about that, you know, whether it's putting up a barrier curtain or something to that effect, because, you know, obviously, you know, all of the trade secret rules are designed when you need to protect that trade secret. So doing these things are ensuring that you're gonna continue to be able to label them as trade secrets, quite frankly, not just for OSHA purposes, but other purposes as well. Again, we talked about this concept of a walk around if they do want to go to a particular machine because the accident happened in that machine, anything within plane site is sort of fair game in terms of citations. The key employer representative, right? So every time OSHA comes knocking, every business should have somebody who is the employee representative, who will essentially follow the CSHO around during the whole inspection, right? And this person, you know, in a perfect world is gonna be knowledgeable about OSHA protocol, knowledgeable and be able to have an intelligent discussion. But some of the issues we just talked about, whether it's trade secret and the limitation and the scope of where the CSHO is going. And they really should be shadowing the CSHO, right? So the CSHO should be following that person, should not be left to wander around the facility himself. The key employer representative should understand, particularly if he or she is a supervisor in most cases, he or she will be that whatever that supervisor says can be used as an admission against interest, right? So just talk about facts, no opinions.

And again, I could tell you just from prosecuting these cases that, you know, I would say 80% of the time, the OSHA file has admissions from a supervisor that should minimize the effect of a lot of defenses, particularly the employee misconduct defense, and it's human nature. If a supervisor is meeting with a CSHO just to talk and they want to be helpful. And sometimes in that process of doing that, they are giving, you know, more information than they should, or in sometimes information that they're not even sure of, but again, in an effort to be helpful with the CSHO and to cooperate, they are providing information that you have to them backtrack away from, which always makes it, you know, more difficult. So again, hopefully your employee representative is gonna be aware of these issues really be cognizant of what he or she is saying. In terms of other logistics, if the CSHO takes a measurement, the key, the employee representative should take the measurement. You know, if the CSHO is taking a picture, take the same picture. And to the extent possible from the same angle, right? You essentially want a file that mimics the CSHO's file as best as possible. That way, when you are doing your own analysis about the validity of the citations, you're gonna know what OSHA has. And we're gonna talk about getting OSHA's file in a little bit during the litigation process, but this initial file is going to be very helpful in your assessment of these citations and where to go from that. You know, again, take detail notes. OSHA has a right to require the OSHA logs within four hours, but other things that they're normally gonna require or ask for like a root cause investigation, there's no statutory deadline, but I would get those requests in writing. And if as long as you are working with OSHA, letting them know and working of the timeframes, they're hopefully, and they're generally, my experience are reasonable, but giving those additional documents, but ask for all requests in writing.

So quite frankly, there's no suggestion down the line that, you know, the CSHO asked for something and it wasn't provided, and you don't wanna provide obviously too much, but you know, want to be responsive. This may sound, you know, pretty self evident in any investigation, but it's just worth remembering. I mean, don't be confrontational. The CSHO has a job to do and look like every, you know, agency. Some investigators are more experienced than others. Quite frankly, some could come with a chip on their shoulders. Others, you know, will be much more neutral. But again, putting aside, you know, the personalities of particular CSHO, I will say that, you know, I've had situations with the CSHO comes and they're very aggressive in the start, but once they see that, you know, the business is cooperative, you're working with them, you know, they soften like most people do.

So, you know, again, you know, be cooperative, but you know, the balance is always, is not volunteering. You know, information as well. Just give them what's responsive and keep that dialogue, you know, professional. I don't think it's usual 'cause most CSHOs understand that, you know, it has sort of limited, it has limited impact on their case, but every now and then you may have a CSHO asked, someone to perform a demonstration on a machine. Hey, can you show me how that works? As a general practice, do not permit demonstrations. There's a lot of good reasons why we don't, it's, you know, it's never quite the same when somebody is quote unquote going through the motions, as opposed to when they're really doing the work, they're cognizant of the CSHO watching them.

So, you know, I generally don't like, you know, demonstrations and like most CSHO's who understand that. So that's one of my rules of thumb. If it's a health inspection and they're taking samplings, do request a summary of all those sampling results as well. So some of those, those are some of the things the employer representative really should be aware of. And in fact, we have some clients that will do, you know, test runs with their employer representatives and sort of set up a mock ocean investigation. So if you're again in an industry like construction or manufactory where you, you know, might but heads with OSHA more often than, you know, an office setting or a law firm for that matter, that may be something you want to consider. It's like getting sort of practice, you know, can sort of perfect, you know, the dialogue and how you could respond.

One thing I will mention on the employee representative side that back in April of 2017, OSHA introduced a guidance commonly referred to as the Fairfax Memorandum, which at the time permitted workers at a worksite without a collective bargaining agreement to designate a person affiliated with a union or community organization to act on their behalf at a walk around. So if your business or your client's business has a union, then that union representative is entitled to participate in the walk around just as much as the employee representative is. But if it's a non-union site, historically before this memo, it was sort of a way for unions to try to unionize, right. You know, because they could point to a union representative who doesn't even have a contract with the site as the walk around representative. So that no longer exists. So hopefully all the CSHOs are aware of that. But I just wanted to put that out there in case you were in that situation, you could certainly reject the right of that individual associated with the union if you don't actually have a contract with them and there no representative of your employees.

So in terms of what the CSHO is gonna do again, as I mentioned, the employee representative is gonna follow the CSHO around, duplicate their file, but the CSHO does have a right to interview rank and file employees, non-supervisory employees. And they can do that in private without the attendance of any supervisor, HR or management representative. There's a couple of things in terms of employee interviews. First, I mean, it shouldn't interfere with business operations. In my experience, most CSHOs are very good about understanding that. So if you can't pull somebody off the line to do the interview because of, you know, staffing issues, safety issues, just let the CSHO know, and they could usually select somebody else. And if quite frankly, there's nobody at the time that is in the same job title that the CSHO wants to speak with because of these issues. Let them know and maybe you can work on another time for the interviews. It's the also the employee's choice, right? So, you know, my suggestion is, you know, if the CSHO says, okay, give a list of all of your mechanics and you give them six people and they pick, you know, John Ho and say, well, you know, is John Ho here? Yes, is he available? Yes, we could make him available in half an hour. Could you let him know, I wanna interview him. Then you can go up to, you know, your employee and say, hey, John, look, you know, OSHA investigators here, they'd like to talk to you, but it's completely your choice. Whether you wanna talk to him or not, and the company has no preference one way or the other, you're not gonna get rewarded or punished, but it really is your choice. And the employer could say no. And then you could convey that information back to the CSHO and say, look, you know, the employer doesn't wanna speak with you, is his choice would made that clear. And the CSHO should respect that decision. I've had, you know, an occasion here and there where they'll say, well, can I at least speak with the employer to make sure that, you know, they understand it's completely voluntary, in which case I've allowed that. And it's usually too many conversation. They confirm what the employee told you. And that's fine. The employer also has a right to have whoever they want, you know, as a witness to that conversation too. So if they want to, you know, if they want friend of theirs, if they wanna call their own lawyer, I mean, whoever it may be, the employer has that right to bring somebody else in. I would tell you the one area here that sometimes can be, you know, have some tension is if the employee says, yeah, I want my supervisor there. Or I want, you know, the HR representative there, because again, generally these interviews are the vast majority of the times done, you know, without supervisory folks present, because again, any agent of the employer doesn't have a right to be in there. And so CSHO is really wanna avoid, you know, any pressure or coercion that the presence of a supervisor might have on that interview. But if the employee says, look, I want my manager there. Technically they should honor that.

But again, be aware of that, then that's just the question of how hard you wanna press up upon that to the CSHO. If the employee says, look, I'm not gonna do the interview without him then no, hopefully that will resolve the issue. But again, just raise that as a point during the process where you might have an issue. In terms of supervisory interviews that, you know, they could ask for that as well. You know, again, in a normal course, I always, that always but almost, almost always, you know, will provide supervisory interviews, but counsel has the right to be present there. And other managers can be present there as well. So, you know, this is the situation. If you do have, you know, counsel on call, I strongly advise having counsel on that call and maybe even doing some prep before that interview occurs, you don't have to produce that supervisor right on the spot.

You can say, yes, we'd be happy to make them available, but we just have to set up a time. You know, also we would like to have counsel present and they really shouldn't be arguing with you about that. They understand you have that right. But again, just be aware of that. And usually again, some prep beforehand and what to expect may be helpful. If you say no to that, we're not gonna allow you to have supervisor interviews. Again, that's fine. But then what you're gonna get is a subpoena, you know, compelling that person to testify under questioning, which is, you know, within OSHA's rights. So again, for the most part, unless it's very unusual circumstances, you would just try to cooperate with the CSHO, make whatever supervisor available at an appropriate time. So the CSHO's role at the inspection of course, is fact finding, right? They go in even though they have a complaint and they're trying to determine if there are any hazards and that, you know, are gonna be the subject of a citation and they do this a number of different ways, just by way of example, you know, we had mentioned photographs, usually, you know, they'll be taking photographs of signage or particular guarding. They could use video tapes or audio tapes. They have sample, they could take sampling data.

Again, if it's usually on the health side, they're gonna, they can, you know, in the normal course, some of the other things that you should be prepared for them to ask for is potentially trade association data. But if you've got safety committee meetings, they might ask to see the minutes from those safety meetings, ask for employee complaints. You know, obviously particularly, it's related to the same machine, any kind of memorandum from safety plans to plan management, discussing, you know, the hazard that he's reviewing may ask you for industry, you know, practice, they're looking at industry practice in terms of some of these issues, asking you for the manufacturing information or the piece of equipment or product is pretty common. You know, whether even necessarily the warranty, but the manufacturer's operating instructions. Those are all things that the CSHO is, you know, may look for your root cause analysis on a particular instance. And again, obviously you want to cooperate, make a subpoena these items if you don't produce them, but be sensitive to privileges. Obviously, if it's memorandum and you've got in-house counsel, you know, on it, you know, you wanna preserve those privileges, but still be responsive, you know, at the same time. So fact finding is pretty broad. And again, whatever they're asking for, make sure it's in writing and you can agree on some reasonable time to produce that information. And usually they're pretty good about, you know, appreciating that to takes a little bit of time to get yourself together.

At the end of the investigation, you're gonna get a call from the CSHO saying I'd like to have a closing conference. Sometimes they come in person, but obviously like a lot of, you know, life situations the last couple years, you know, this is probably gonna be done by a phone, phone conference or even, you know, the video. And what happens to the closing conference? The investigators, you know, not gonna sort give, not gonna give you firm commitments but gonna say, look, this is what I expect to recommend to my supervisor. You know, you're gonna get a citation for X, Y, and Z. They generally don't discuss, you know, the penalty amounts, although I've lately, you know, they seem to be at least in my experience talking about them more so than they have historically but they'll tell you, these are just recommendations of the supervisors.

So what you eventually get may be a little bit different, although in the majority of cases, it's pretty much exactly what they told you. You're gonna get. They're usually open to talking about the classification. You know, if it's a willful or repeat, particularly, you know, that's usually gonna come up and the employee representative, if there is one, has a right to be present at that closing conference. You know, this is usually a long conversation and, you know, you could have a conversation with the CSHO if you've got concerns, but this is not usually the time necessarily to have an argument, you know, with the CSHO 'cause at this point, he's done his investigation or she's done his investigation. And these are the recommendations that they're going with. The time to sort of make a more forceful argument and sort of put together your position. You know, we're gonna talk about, you know, in a minute.

So the citation. You get the citation, there's a civil penalty matter. We talked about it, this statutory factors that they have to look at employer size, good faith history you have, previous violations and you have 15 working days from receipt the citations to either contest them or have it resolved, right? So, and it's 50 days from receipt. Although there'll be a issue in state on the citation itself. And sometimes there it's the same date if they do a hand delivery, but more often it's mailed. So it's usually a couple days afterwards, but that's a very important deadline. So whenever you get receipt the citations, please note it, please mark it and then count 15 days 'cause that's your period to either resolve it with OSHA through an informal conference, which we're gonna talk about or file the notice of contest and put yourself into the litigation process.

If you miss that, you know, for the most part, you're done, there's some good faith defenses, if it wasn't your fault and prejudice issues, but who wants to fight that fight. So, you know, just have in your mind that really needs, that resolution needs to be done by that 15-day period or essentially that citation becomes an order and you get stuck with it, the penalty amount, the classifications with no adjustments whatsoever. So that's a critical deadline. There are certain classifications for these citations, for De Minimis other than serious, serious willful, repeats and failure to abate. The most serious one, the most egregious one of course is the willful, then probably next is the repeat then the serious and other than serious then De Minimis. And again, when you are talking about resolutions, OSHA will, you know, it's part of the negotiation process. Sometimes be willing to reduce the classification, right from the willful to either a repeat or a serious. In most cases, you know, you're gonna see a serious citation unless it's a record keeping one, in which case it moves to another than serious.

So the informal conference, who should attend? This depends, it depends on the gravity of the citations. How many you get is gonna affect operations, but people that you should consider right is what should counsel be there? Should HR be there? Someone from operations, the safety personnel and the employee representative does have a right to be there because look at the end of the day, abatement's important. How you resolve the hazard and OSHA's gonna ask you if OSHA's abatement, you know, is going to somehow competitively disadvantage you, moving forward maybe putting up guarding that's gonna slow down the production process by 50% or affect productivity. Obviously you want somebody from operations there to be part of that conversation. You want somebody, the safety person that to be there. But look, if it's a citation related to a blocked exit door and it was pallets there that were, that should have been there sort of easy fix, not much know future sort of compliance issues, then obviously, maybe you don't need the whole host of people.

So that's really just the citation specific consideration. You know, other things you wanna think about in terms of, you know, settlement considerations is of course, you can usually get a reduced monetary penalty. You know, if somebody's hurt, if somebody died, that's all gonna affect what OSHA's willing to do the classification. But if it's a serious, they could usually expect that the informal conference. So this is where you pick up the phone and you set the informal before that 15-day period, and you meet with the assistant area director. You could usually get monetary penalties at least 20%, sometimes 30% depending, sometimes that sort of varies from field office to field office. You know, we just talked about, maybe you wanna ask for reduction in the classification because for public contract bidding purposes so many serious citations are gonna make you ineligible or harder to bid on these contracts. So you want those reduced to another. OSHA's often gonna ask for enhanced abatement if you're asking for things like a reduced classification and that just means they want you to do something that's safety related, that's beyond the particular citation. So if there's a guarding issue at one facility, they may say, please do a guarding audit and all of your, you know, all of your equipment at that facility instead of that just single one. So you want to be prepared to talk about those. Sometimes if it's serious enough and you don't have, if you've larger company, they may ask you to hire you a safety director, right? If you don't have a designated safety director, that's uncommon in more significant cases, particularly for, you know, larger companies where they think you should have one. So talk about those things, make sure it's workable for you to. For multi-facility businesses. Just bear in mind that any citation can be used for the same employer, even out of state as a basis for a repeat. So for a citations, that can be common like a guarding issue. Just make sure that when you settle these repeats or settle these willfuls that, you know, what's the likelihood that another facilities can want the same issue because then a serious citation penalty goes from 14,000 to 140,000 for the next time. And, you know, OSHA has a history of, you know, every time that they set you, it goes into the public record.

So be aware for that potential for repeats. You definitely want non-admission clause. You know, some of the language changes from area office to area office, but it's essentially says, this is for settlement purposes and these settlement agreements can't be used for any other purpose. Definitely get that into any settlement consideration, again, impact on future operations. How are you gonna abate this? And is that abatement affect your production, you know, production down the line or any other issues that you need to know of an operations needs to know of? And if you've seen an OSHA citation, you'll see that there's a cited standard. And then there's language underneath that. We call the alleged violation description, the AVD. And sometimes there's language in there that will say the employer directed so and so, or the employer required so and so. That quite frankly is objectionable and not actually accurate. So often OSHA will be willing to modify that language. And again, that can be very important for those third party cases we talked about where you don't want any suggestion that you, the business directed so and so, or whatever, you can get much more neutral language. So be aware that that is open for subject for negotiation. And there, you know, we don't wanna have to go into this like too much detail, but there are a number of defenses available, vagueness and feasibility, greater hazard.

The one that you see most is Unpreventable Employee Misconduct. And that's where you had a rule, you enforced the rule and the employer still didn't follow the rule. And I would just say on that one, you just have to make sure that there's, you know, hopefully you've got some records to show of. Once you cope the employers are violating the rule, there's some disciplinary records for because OSHA takes the position and I think as they should, if you just have it on a piece of paper, but you don't enforce it, that's not enough. Supervisory misconduct is another one, statute limitations OSHA six months from the date of a particular injury or incident to site. So keep your mind on that. And if it's a De Minimis violation, that is, you know, another potential defense.

The last thing what I talk about is the Multi-Employer Worksite Policy, and OSHA has a memorandum that explains her position on this. And this what this doc says is look, even if the employee was hurt, you are not the employer of record. OSHA can cite multiple employers at a worksite that it has, you know, multiple employers on it, like a general contractor or subcontractor. And it does so when the citing entity is the, either they creating employer, they exposing employer, they correcting employer, or they controlling employer. So if you're ever in that situation where you get citations and say, it's at least employee or something to that effect, if it's not your client's employer, take a look at the, you know, the Multi-Work Site Citation Policy, make sure that citation is issued and conformity with those rules.

And the final part thought I would share is that there are a number of significant OSHA decisions, Workplace help management systems is out there. And I think that's sort of the Genesis of some more focus on workplace violence. If you got hit with repeat citations, there's a commission, there's an OSHA commission case called Angelica Textile. It's been vacated for other reasons, but I think you still have an argument that the standard by which OSHA can say for a repeat, that whole thing is still good for that premise. And again, for those of you with clients in the heat stress environment, A.H. Sturgill Roofing is a heat stress case where heat stress citations were vacated and then general duty clause worth taking a look.

So I hope everybody found some of this information helpful. And if you've got questions after you review this, you know, please feel free to shoot me an email or give me a call. I'd be happy to chat with all of you, thank you.

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