On the front lines with Fisher Phillips:
by Travis Vance and Pamela Williams
Everything a manager or supervisor says to an OSHA inspector who shows up at the workplace may be used against the company to support a citation. And we mean anything and everything that may be said at any point.
Words can hurt
Imagine an OSHA inspector shows up at your workplace. After presenting his credentials to the plant manager, he meets with the plant manager and the safety director. The inspector explains that he has received a complaint that employees have been exposed to a certain chemical at the workplace, but the complaint did not specify where the exposure occurred. Trying to be helpful, the safety director says, “Oh, yeah. That could have happened in the back of the facility near where we produce the polymers. We just changed suppliers, so that could be a new issue.”
Consider another situation where an OSHA inspector is conducting an inspection related to a complaint of asbestos exposure when pipes were being removed at a facility. Walking through the site with a facility owner, the inspector discovers a contractor’s employees worked where the alleged exposure would have occurred. The contractor’s site superintendent then joins the walk-around inspection. When the group arrives at the area of the alleged exposure, the contractor’s superintendent says, “We took out the pipes, but the host employer said they had hired an asbestos removal company to abate the asbestos insulation on the pipes we removed.”
Could either the safety director’s or site superintendent’s comments come back to haunt you? The unfortunate answer is yes.
What the law says
OSHA must prove these four elements to establish a prima facie case that a standard was violated: (1) the standard applied to the cited condition; (2) the standard’s terms standards were violated; (3) one or more employees had access to the relevant hazard; and (4) the employer knew or, with the exercise of reasonable diligence, could have known of the violation’s presence (EMCON/OWT, Inc. v. Sec’y of Labor, 224 Fed. App’x 875, 875-76 (11th Cir. 2007).
To prove these elements, OSHA can rely on statements the employer’s managers make at any time during the inspection. No guidelines and few legal prohibitions address OSHA’s use of such statements. While OSHA’s Field Operations Manual has detailed guidelines for conducting non-manager interviews, those guidelines are meant to keep information from such interviews confidential from the employer. But that’s not a concern with manager interviews or statements. Regardless of when a manager makes a comment – during the opening conference, during the walk-around, in an email follow up after the walk-around, during idle chit chat or during a formal interview – the inspector can use comments made at any of these times against the employer.
Statements increases the risk of a citation
In both examples above, the manager helped substantiate OSHA’s case for a citation by indicating that the employer may have known about a possible violation. The safety director admitted he was aware of a “recent issue” with the chemical in question, and the site superintendent acknowledged that he knew asbestos was present in the facility prior to beginning work. These individuals were just trying to be helpful, but they ended up inadvertently helping OSHA support its citations.
Further, they potentially could have set up willful violations against the company. These violations, which require OSHA to show prior knowledge of a hazard, come with much higher penalties. In short, although the managers likely didn’t realize the import of their comments, once the cat is out of the proverbial bag, the employer can be responsible for their statements.
Guidance for employers on minimizing risk
We recommend the following best practices to minimize the risk of manager statements being used to support citations:
When possible, have an attorney present during the OSHA inspection and have them be the person who provides most of the information to the OSHA inspector. OSHA generally cannot use statements made by attorneys as evidence. Formal interviews of managers can be arranged later.
If a manager must speak during the opening conference and walk-around – a circumstance that is very difficult to avoid – limit what is said only to matters that are necessary to directing the inspector to the area of the facility within the scope of the inspection and to arrange hourly employee interviews if requested.
Avoid making statements about what may be known of any hazard, how machines work or are guarded, how machines are locked out, etc. None of these questions are necessary for the OSHA inspector to conduct his walk-around. They can be answered at a later date after speaking with your attorney.
OSHA inspections have complicated aspects that may turn even an innocuous comment into significant consequences. Seek legal counsel should you have any questions about these issues.
Travis Vance is a partner in the firm’s Charlotte office. He can be reached at email@example.com or 704.778.4164. Pamela Williams is a partner in the firm’s Houston office. She can be reached at firstname.lastname@example.org or 713.292.5622. Visit their website at fisherphillips.com .