By Trent Cotney
The construction industry faces many threats. Among them are supply chain issues, rising prices and a shortage of skilled labor. However, another substantial threat is the expansion of regulatory agencies. A prime example is the Occupational Safety and Health Administration.
Initially created to focus on employee safety, OSHA has morphed into a massive operation that not only enforces standards but also collects millions of citation dollars. In addition, OSHA embraces the practice of issuing press releases to call out businesses accused of violations, which can harm these businesses’ reputations. Undoubtedly, some OSHA inspectors (also known as certified safety and health officials), assistant area directors, and regional offices are committed to protecting employees and workers. Nevertheless, some bad actors have been known to entrap contractors and violate their constitutional rights.
The Occupational Safety and Health Act of 1970 provides OSHA with authority to conduct inspections at employers’ workplaces, issue citations and recommend penalties for violations. OSHA may conduct inspections in response to specific evidence of an offense—such as a complaint, fatality or catastrophe—or as part of a general administrative enforcement plan. Regardless of the basis, inspectors can levy substantial fines if they discover problems.
Employers also can face criminal liability for specific violations found during an inspection. Criminal charges may result under the following conditions:
The Department of Justice prosecutes such criminal charges.
Despite the risk of criminal liability, employers and employees involved in an OSHA inspection do not receive the full constitutional protections guaranteed in criminal investigations. It is important to note OSHA inspections are administrative enforcement proceedings not criminal investigations. However, when drafting the OSH Act, Congress likely did not anticipate criminal investigations in which parties would need constitutional protections.
There have been accusations that some OSHA inspectors are more interested in issuing citations than increasing workplace safety. This trend may be an indirect result of certain federal politicians’ zealous efforts to enforce the act. Regardless of the cause, there have been reports of OSHA inspectors using bullying and intimidation techniques during inspections.
To avoid becoming OSHA’s next victim, contractors and their employees must be aware of their rights. They must also understand the inspection’s scope and the limits of the inspector’s rights.
The Fourth Amendment and the act protect the rights of individuals against unreasonable government intrusions. Before the 1978 landmark Supreme Court case Marshall v. Barlow’s, 436 U.S. 307, 320–21 (1978), the act gave OSHA the authority to conduct warrantless inspections. The Barlow ruling declared that provision of the act unconstitutional and held that OSHA inspectors are required to obtain search warrants if denied entry to inspect.
In other words, OSHA is not required to obtain a warrant to inspect. However, employers may consent to the inspection, thereby waiving the warrant requirement. But if an employer objects to the inspection, OSHA must obtain a warrant.
In this case, the court determined OSHA must meet only a minimal probable cause standard to obtain a warrant. It could be based on specific evidence of an existing violation or the notion that the inspection of a particular establishment would support a general administrative enforcement plan. This second basis for probable cause serves more or less as a catchall, making it quite likely that OSHA will obtain a warrant for most establishments. Employers need to consider this detail when deciding whether to object to the inspection because an OSHA inspector should have no trouble getting a warrant in a matter of days.
Despite the ruling’s explicit attempt to rein in unconstitutionally broad and invasive inspections, which have continued for decades, some cases cut against the ruling’s intent. For example, in Sec. of Labor v. Hi-Tech Builders, Inc. and L.R. Willson and Sons, Inc. v. Occupational Safety & Health Review Comm’n, OSHA inspectors surveilled work sites before notifying employers of OSHA’s desire to inspect their workplaces. The inspectors used high-powered lenses to record video footage of work site activities. The surveillance occurred without the employers having an opportunity to agree to an inspection, insist on a warrant and have a magistrate review probable cause. The employers were denied their right to review the inspectors’ credentials. They were not informed of the nature and purpose of the inspection, and they had no opportunity to ensure it remained within the permissible scope. They were also denied their right to accompany the inspectors during the inspection.
Even though the surveillance undermined the employers’ constitutional rights, the Occupational Safety and Health Review Commission and the Fourth Circuit ruled the surveillance was proper. They applied the “plain view” doctrine, which allows the government to use evidence of wrongdoing that is in plain view because there is no expectation of privacy. The court came to this conclusion because the inspectors were positioned on public property when taking video footage, meaning the recorded activity was within the public’s view.
However, the length of time the inspectors recorded the worksite activities suggests they were more interested in collecting evidence for a citation than the employees’ safety. For example, in the Hi-Tech Builders case, the inspector covertly recorded worksite activity (which he believed to violate OSHA’s fall-protection standards) for four days from a parking garage without informing the employer that employees may be in danger. Similarly, in the L.R. Willson and Sons case, the CSHO recorded employees without fall protection on a construction project across the street from his hotel for 50 minutes before intervening.
According to the Fifth Amendment, individuals are not required to respond to questions if they risk incriminating themselves by answering. This right is particularly relevant to the interview component of an OSHA inspection. Inspectors can privately question any employer, owner, operator, agent or employee during the inspection.
The privilege against self-incrimination is most commonly associated with criminal trials but may also apply in civil and administrative proceedings. Unlike during a criminal arrest, OSHA inspection interviewees do not receive a Miranda warning. The Miranda warning, in part, advises an individual of the Fifth Amendment’s protection against self-incrimination. Inspectors are not required to give the warning to interviewees because they are not police officers, and the interviewees are not considered to be “in custody.” However, as with a criminal arrest, interviewees risk exposing themselves to criminal liability.
Individual interviews are central to OSHA inspections. For that reason, it is critical individuals know their rights during an interview. Many are not aware an interview is entirely voluntary. In addition, some who are aware of the voluntary nature of the interview report being pressured into participating or told the interview is not optional.
Given the potential criminal liability, contractors must understand their inspection rights and ensure all employees understand theirs as well.
OSHA inspectors are allowed to use “reasonable investigative techniques” during their inspections. However, those techniques do not include asking employees to demonstrate or reenact how they do specific tasks. Far too often, CSHOs ask employees to simulate how they put on a harness, cut tile or tie off a ladder. Such demands are not reasonable and can even be construed as entrapment. Therefore, workers should not agree to such actions.
Under federal jurisprudence, entrapment is the process of luring someone into committing a crime so they can be prosecuted for it. If established, lawyers can use the entrapment defense to suppress improperly collected evidence or acquit a defendant of a crime. Logically, the primary role of any government agent in a penal or quasi-penal proceeding is to prevent any such forbidden actions.
However, it is unclear whether the entrapment defense can be used in an administrative proceeding such as an OSHA inspection. Similar to the availability of the privilege against selfincrimination, the entrapment defense generally is not available in an administrative proceeding unless the proceeding is criminal or quasi-criminal in nature.
Because some OSHA violations can result in criminal liability, there may be situations in which the entrapment defense is available. However, it may be challenging to establish that an employee would not have violated OSH Act standards or rules without an inspector’s questions or presence and that the inspector induced the employee to do so.
Even if entrapment is applicable to an OSHA citation, the better plan is to avoid having employees forced into simulating an action outside of its natural context.
Before an inspection begins, the best protection is for employers and employees to have a comprehensive understanding of their rights and the inspector’s obligations during an inspection. Once a review begins, there are strategies for managing the presence of an inspector and possibly avoiding an OSHA citation.
Upon arrival at a worksite for an inspection, the inspector must present credentials. If that does not occur immediately, the employer should request credentials and verify them upon presentation.
Next, the employer should determine whether the inspector has a warrant. If the inspector has a warrant, the employer should review it and make a copy. If the inspector does not have a warrant, the employer must decide whether to consent to the inspection. If the employer refuses to grant access—which he or she has the right to do—the inspector must obtain a warrant to conduct the inspection.
Remember, OSHA has a legal right to inspect a job site due to “administrative probable cause.” There is an inherent risk of danger and injury on an active construction project, giving OSHA all the administrative probable cause it needs. So even though the right to refuse inspection without a warrant is always available, the inspector can probably obtain a warrant quickly.
An alternative to consenting or refusing consent is to request that the inspector return later. This response would be appropriate if proper personnel are not available. An important consideration here is the rapport with the inspector. Although employers are justified in asserting their rights and refusing to consent to an inspection, if not handled carefully, it could damage the relationship with the inspector, which could cause more issues for the employer.
Rarely is it a good idea to tell an inspector to get a warrant. Some people suggest inspectors may be in a “violation-finding mood” if they are required to obtain a warrant and return later even though such retaliation is improper. Employers should never simply surrender their rights, but weighing the factors in each instance to achieve the best possible outcome is essential. Often, by consenting to the inspection or agreeing to it soon, employers maintain a good relationship with the inspector and can better control the inspection.
Per the Code of Federal Regulations, OSHA’s inspection must be “reasonable.” This means inspectors are limited to inspecting only the workers, equipment and materials within “plain view.” Therefore, the agent may not sample or manipulate anything that is not within a reasonable line of sight. If an agent violates this doctrine, the information obtained during an inspection may be deemed unconstitutionally gathered.
During the opening conference, the inspector must explain the nature and purpose of the inspection, indicate the inspection’s scope and note the records he or she wishes to review. If the inspection is in response to a complaint, the inspector must provide a copy of that complaint. If the employer’s worksite was chosen for review based on neutral and objective criteria, the inspector must explain the program and why the worksite was included.
In this discussion, the employer’s goal should be to clearly define the scope of the inspection. The conference will determine whether the inspection is a comprehensive “wall-to-wall” inspection or a partial inspection focused on a particular location or operation. When a warrant is issued based on a programmed inspection, a comprehensive inspection of the entire workplace typically will be allowed. When an inspection results from a complaint, the inspector cannot expand the scope beyond the location or hazard identified by the complaint without the employer’s consent—unless the inspector has a warrant or a threat is in plain view.
If it is a partial inspection, employers should reach an explicit agreement on specific areas or equipment to be inspected and how employee interviews are to be conducted. If the inspector requests a general tour during a complaint-based inspection, an employer can deny that. Courts have held the scope must bear a reasonable relation to the complaint, and a full-scale OSHA inspection should not ensue from a limited complaint.
During the inspection, the inspector will walk through the project. The inspector’s primary focus usually is fall-protection equipment and fall-protection practices of the crew. Employers and supervisors should ensure every harness, rope and lanyard on-site is properly maintained. If a harness has been previously impacted, it does not need to be on a job site. Such equipment always should be discarded and replaced immediately upon discovery. Contractors are cited far too often because an old harness or frayed rope remains on a truck when it should have been discarded. Damaged equipment is an easy citation to avoid.
If OSHA is there for only a partial inspection, it is vital to prevent it from becoming a comprehensive inspection. During a partial inspection, “mission creep” can set in. The inspector may begin asking about unrelated issues or stop and observe areas or equipment en route to the designated areas or equipment. Inspectors may even ask employees questions about unrelated matters, such as wage and hour requirements, when these topics are significantly beyond the scope of the inspection. These topics are governed by an entirely different division of the Department of Labor—not OSHA. Such occurrences underscore the importance of clearly defining the scope of the inspection and maintaining it even when faced with efforts, intentional or not, to expand the scope.
When OSHA is on-site, the superintendent should remain alert and aware and advocate for the company. Superintendents have specific rights, and they must assert those rights to protect themselves, the business and the workers who rely on that business for their livelihood.
The superintendent has the right and obligation to accompany inspectors wherever they go onsite. Inspectors should be followed in the trench, on the roof, through the rafters and anywhere else. The superintendent must also ask a few pertinent questions of the inspector: why OSHA is there, what the scope of the investigation is and what the inspector expects to see or “uncover.” Once the superintendent knows what OSHA wants, he or she can limit the inspector to what is in plain sight. If an inspector attempts to go outside that scope, the superintendent must inhibit those efforts.
Throughout the walk-through, inspectors may interview the crew briefly and question them on various issues relating to the inspection. OSHA has the right to perform these interviews privately, away from the superintendent. Although the questioning can be private, it also must be brief. A superintendent should object to any question that exceeds a “reasonable” amount of time and note those objections in their records.
As part of the inspection, inspectors are allowed to privately question any employer, owner, operator, agent or employee of an establishment as long as they do not exceed the inspection’s scope. However, too often, interviewees report they were forced to participate through intimidation. Employers and employees should remember interviews are not required; they are entirely voluntary without a valid subpoena.
Often, an inspector will prepare a written statement summarizing the employee’s interview and ask the employee to sign it. Almost as often, employees report feeling “pressured” to sign the statement. (OSHA’s Field Operations Manual goes as far as to instruct that interviewees should be encouraged to sign and date these statements.) However, employees have the right to refuse to prepare a written statement or sign any documents not only during the interview but also during the entire inspection.
If an employee refuses to sign a statement, the inspector will read the statement to the employee and make a note of the refusal. A management employee, as well as the employer, has the right to obtain a copy of a written statement whether signed or not.
Following the walk-through, the inspector and employer will hold a closing conference. At this time, the inspector will discuss all unsafe conditions observed and may issue or recommend a penalty. The employer should produce records relevant to those unsafe conditions and work with the inspector to prevent an unreasonably short abatement deadline from being set. If OSHA decides to issue a citation, it is required to do so within six months of the inspection.
Each January, OSHA increases its fines for safety violations. The 2023 maximum penalties for each type are as follows:
Multiple or repeat violations can result in fines that can devastate many companies, so it is critical to avoid citations when possible.
Preparation and awareness are even more critical as OSHA appears to be stepping up its enforcement. With proper planning, employee training, and careful handling, an employer can maintain control of an OSHA inspection and protect its rights.
The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.
Date : Jan. 01, 0001
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