With the Occupational Safety and Health Administration’s penalties scheduled to increase annually, it is important every roofing contractor is diligent not only in safety training but also preparing employees for a possible OSHA inspection. This year, the maximum penalty for a serious OSHA violation is $13,494, and a willful or repeat violation can cost you as much as $134,937.
Even the most robust safety program will fail if you and your employees are unfamiliar with how an OSHA inspection is conducted.
Preparing for an inspection
Often, the first notice you will have of an OSHA inspection is when an OSHA Compliance Safety and Health Officer arrives on a job site having observed what is alleged to be a plain view violation of an OSHA rule. In most instances, the inspection begins with the crew being called down from the roof and an interaction with the crew foreman ensues.
Although it is important your crew foremen are trained how to respond and what to do in this event, it is best to assign someone other than the crew foreman to be the company’s representative in response to any OSHA inspection. The best person for this job is someone from senior management who is trained to properly interact with CSHOs, such as a safety director. Also, it is better to have one source in your company responsible for these matters, such as your attorney and others who are better suited to respond appropriately and in a timely manner, because there often will be post-inspection activities with OSHA.
It is imperative roofing crews be trained to stop work and contact your company representative when a CSHO arrives. In the meantime, the foreman should verify the CSHO’s credentials while asking him or her to wait for your company representative to arrive before continuing with the inspection. Generally, the CSHO will wait for up to an hour for a company’s representative to arrive.
In the event the CSHO insists on proceeding with the inspection without your company’s representative present, it is important the crew foreman knows your company retains the right to require the CSHO to first obtain a search warrant before proceeding with the inspection. After all, the inspection is considered a search by a federal officer under federal law.
However, keep in mind requiring a search warrant will grant no favors from the CSHO when he or she reviews the file and recommends citations. However, if a CSHO is being unreasonable, the foreman explaining the company requires a search warrant for the inspection when its company representative is not present most likely will buy time for your company’s representative to arrive.
The opening conference
After your company representative arrives or if the CSHO decides to proceed, the opening conference will begin with the inspector presenting his or her OSHA credentials. The opening conference may be informal; the CSHO could simply state the basis for the inspection, which often involves what the CSHO observed in plain view. Or the inspector may be there to conduct an inspection pursuant to a specific complaint from an employee or third party.
The role of your company’s representative during this time is to take thorough notes. If the CSHO indicates the basis for the inspection is a complaint, your company representative should obtain a copy of the complaint from the CSHO.
Touring the site
Regardless of the basis for the inspection, the CSHO will continue with his or her investigation after the opening conference. Most OSHA inspections involving roofing contractors will necessarily involve photographing the site and taking relevant measurements.
Your company representative should come equipped to the inspection with a camera or video recording device, as well as a measuring device. Your company representative should follow every photograph taken by the OSHA inspector with his or her own photograph to the best of his or her ability. Alternatively, as much as possible, your company representative should keep a record of every photo taken by the CSHO; the photos may play an important role if a citation is contested. Your company representative also should follow every measurement taken by the CSHO with his or her own measurements and keep a record of any other information obtained by the CSHO during the inspection.
Often with fall-protection violations, the CSHO will have procured video of the violation(s) before announcing himself or herself to the crew. If this is the case, your company representative should ask to view a copy of the video. When viewing the video, your company representative should take notes of what is observed while being careful not to make any admissions. Your company representative also should take written notes of any pertinent comments or observations the CSHO makes during review of the video and inspection tour.
Employee interviews
Perhaps the biggest trap for roofing contractors subject to an OSHA inspection is when an employee is asked, or compelled through a subpoena, to sit for an interview with a CSHO. Even if you have spent time and money on a comprehensive safety program, if an employee does not know his or her rights during an OSHA inspection, how to interact with a CSHO during an interview or how to prepare for the interview, he or she can torpedo your defense to any forthcoming OSHA citation. Consider making OSHA interview preparation part of your safety training program so employees know how to interact with a CSHO. Any reputable safety consulting company will have, as part of its curriculum, training for company employees about their rights when asked to participate in interviews with OSHA.
Training becomes especially important for non-English-speaking nonsupervisory employees. According to OSHA rules, a CSHO is entitled to interview nonsupervisory employees outside the presence of the employer.
You and your company attorney are able to be present for interviews of supervisory employees, such as foremen or superintendents, whose testimony will be attributed to the company. But interviews of nonsupervisory employees are considered privileged.
Although you cannot be present during an interview with a nonsupervisory employee, the nonsupervisory employee is entitled to his or her own representation during the interview. To avoid any potential conflicts of interest, if a nonsupervisory employee asks for legal representation during the interview, an attorney other than your company’s attorney should be retained. To address any language barriers, you can engage an interpreter, who may be a co-worker, to sit with the nonsupervisory employee during the interview.
Importantly, an employee cannot be compelled to participate in an interview unless the CSHO has a subpoena that compels the employee’s attendance. It is legal for you to educate employees about their right to refuse to participate in an interview or end an interview at any time if the CSHO is without a subpoena. But do not instruct or suggest that employees not cooperate with OSHA, and be explicit there will be no adverse action taken against any employees who cooperate with OSHA.
As part of your training program, make sure employees know if they sit for an interview with a CSHO, they may be asked to sign a statement following the interview. In almost all cases, the statement will consist of the CSHO’s notes during the interview rather than a statement written by the employee. Employees need to know they never can be compelled to sign a statement prepared by OSHA and can object to any audiotaping or videotaping.
In addition, make sure employees know to read through and revise statements presented by the CSHO for the employee’s signature. Inform employees that if they sign any statement presented by a CSHO, that statement becomes part of the case record, and it will prove difficult for the employee to credibly change his or her statement if called to testify at a court hearing about the matter.
For those employees choosing to sign statements, they need to know they should obtain copies of their statements after the interview. Also, you need to diligently follow up with any nonsupervisory employee interviewed by OSHA. No law restricts or prohibits you from asking an employee what was discussed during the interview, including questions posed by the CSHO. It also is permissible to ask the employee how he or she responded to any questions posed by the CSHO, especially those questions concerning your company’s safety training.
Often, nonsupervisory employees are intimidated by the presence of a CSHO and may forget their training. By following up with employees after being interviewed, any inaccuracies reported to the CSHO can be promptly corrected.
If an OSHA inspection is the result of an accident that was required to be reported to OSHA, it is important you interview employees about the accident before they are interviewed by the CSHO. You should obtain written, signed statements from employees during these interviews. These signed statements can go a long way to combating or refuting any contrary information provided in an interview statement procured by a CSHO.
Production of documents
Following the on-site investigation, the inspection will continue at the CSHO’s Area Office. In most instances, the CSHO will request certain documents from you. To the extent the CSHO seeks documents that you consider proprietary or confidential, it is certainly permissible to object to the request without a confidentiality agreement in place. Alternatively, you can redact sensitive company information from within the documents being produced, but if OSHA objects to the redaction, you will have to look into a confidentiality agreement.
If the request for documents is completely objectionable, such as if the request seeks trade secrets or proprietary or confidential information that would be harmful if it ended up in the hands of a competitor or if the scope of the document requests goes beyond the issues identified during the inspection, you can require OSHA to procure a subpoena. Then, you can seek to quash the subpoena by asking the court for relief from the subpoena’s scope or breadth.
Whatever documents are produced during the investigation, keep copies in a separate file.
Closing conference
After the CSHO’s information gathering is complete and before the investigation closes, a closing conference will be held. During the closing conference, the CSHO will identify apparent violations, citing the standards alleged to have been violated. It is important your company representative writes down each violation so you can begin your defense. The closing conference is neither the time to argue with the CSHO regarding whether the violations are justified nor the time to make any admissions!
Following the inspection
OSHA has six months following the alleged violation during which to issue a citation, which will be delivered by mail. In the meantime, the information you obtained from the inspection needs to be kept in a safe place. If employees provided signed statements to OSHA, ask the employees to provide copies of the statements.
Take the time
An on-site OSHA inspection is rife with opportunities for providing CSHOs with the best evidence to be used against roofing contractors. This does not have to be the case. Rather, if you train and educate employees properly, you will find the information provided to a CSHO during an inspection is, in fact, the best evidence to defeat a citation. Be sure your employees know and understand their rights when subjected to an OSHA inspection.
Philip J. Siegel is a partner with Atlanta-based law firm Hendrick Phillips Salzman & Siegel P.C.
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