On the front lines with Fisher Phillips
by Travis Vance and Pamela Williams
The Occupational Safety and Health Act of 1970 (OSH Act) provides that, if an OSHA compliance safety and health officer (CSHO) shows up to conduct an inspection and presents his credentials to you as the employer, you have a right to guide the CHSO’s walk-around at your workplace.
What sometimes happens, however, is that multiple employers are present at a worksite. A construction site is one such example. Can a CSHO who presents his credentials to the general contractor complete the site inspection without asking each employer at the worksite to accompany him during the walk-around?
The right to be present
Section 8(e) of the OSH Act provides that “a representative of the employer … shall be given an opportunity to accompany the Secretary[’s] … representative during the physical inspection” (29 U.S.C. § 657(e)). Similarly, the Secretary of Labor has promulgated a regulation that further enshrines this right:
“A representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Compliance Safety and Health Officer during the physical inspection of any workplace for the purpose of aiding such inspection” (29 C.F.R. § 1903.8(a)).
The bottom line is that employers have an undeniable right to be present for OSHA inspections at their worksites and to walk around with OSHA inspectors during an inspection.
Recourse if this right is violated
What happens, however, when an OSHA representative shows up to inspect a worksite after receiving a safety complaint, the general contractor agrees to the inspection and during the walk-around, the CSHO observes a possible violation related to your company – a subcontractor at the site? Can you challenge any resulting citations because you were not told about or given the opportunity to participate in the walk-around?
Possibly. Generally, if OSHA has exhibited “substantial compliance” with Section 8(e) of the OSH Act, the court will not vacate subsequent citations that may be issued unless the employer can show actual prejudice.
The controlling Occupational Safety and Health Review Commission (Commission or OSHRC) case is A.J. McNulty & Co. Inc., 19 O.S.H. Cas. (BNA) ¶ 1121 (O.S.H.R.C. Oct. 5, 2000).
In McNulty, the CSHO held an opening conference with each contractor and subcontractor on the first day of the inspection. McNulty, a subcontractor, did not attend the conference. However, the CSHO informed both a foreman and project manager that they or other company representatives could accompany him during the inspection. Thereafter, during multiple days on site, the CSHO located and notified a McNulty representative each time he observed a hazard where the company was working.
McNulty argued that the CSHO was required to alert each contractor prior to the inspection occurring on each subsequent day. The Commission, however, rejected that argument. It held that a CSHO “need not alert an employer prior to inspecting its work area if he informs the employer of the accompaniment right at the outset of the inspection and makes an effort within a reasonable time to report any violations to the employer. (Id.).
The CSHO’s conduct, the Commission held, “substantially complied” with § 8(e) because the CSHO immediately notified McNulty after discovery of each hazard, giving the McNulty representatives “an opportunity to ask [the CSHO] what he had observed, including which employees were exposed to the hazard when it was detected” (Id.).
The Commission further held:
“Moreover, a compliance officer’s failure to do one or both of these things to achieve substantial compliance with § 8(e) does not warrant vacating a citation item unless the employer makes a specific showing that the misbehavior prejudiced it in preparing or presenting its defense” (Id.).
The Commission held that McNulty was not prejudiced because “its representatives learned of possible violations almost immediately after [the CSHO] observed them” (Id.).
Federal courts too have found substantial compliance with § 8(e) in the following circumstances:
• The CSHO did not take a representative of the prime contractor on the walk-around but had informed the company that an inspection was about to begin and had provided it with the OSH Act and an informational pamphlet explaining the Act, and the contractor did not assert its right to be present (Chicago Bridge & Iron Co. v. OSHRC, 535 F.2d 371, 7th Cir. 1976).
• The employer’s superintendent did not learn of the inspection until part of it had been completed, although the CSHO had made an unsuccessful attempt to locate the superintendent prior to the walk-around (Hartwell Excavating Co. v. Dunlop, 537 F.2d 1071, 9th Cir. 1976).
• The CSHO did not “seek out” an employer’s representative to join him during the walk-around, but the employer knew of the CSHO’s presence and “made no effort to participate in” the walk-around (Frank Lill & Son Inc. v. Sec’y of Labor, 362 F.3d 840, D.C. Cir. 2004).
As noted above, courts will not vacate citations unless an employer can specifically demonstrate that it was prejudiced by OSHA’s failure to provide an opportunity to attend the walk-around. Prejudice can be shown where “further material or mitigating facts might have emerged” if the employer representative had accompanied the CSHO on the walk-around (Accu-Namics Inc. v. Occupational Safety & Health Review Comm’n, 515 F.2d 828, 5th Cir. 1975). Generalized claims of prejudice that don’t specifically identify the nature of the prejudice are insufficient to have a citation vacated based upon violation of the walk-around right.
Best practices for protecting walk-around rights
While employers have a clear right to be present for any walk-around inspection, case law suggests that OSHA may not need to use specific language to notify employers of this right, as there is no Miranda requirement that would exclude subsequent conduct in the absence of the reading of certain words. As long as OSHA substantially complies with § 8(e) of the OSH Act, subsequent citations will not be vacated under any exclusionary rule unless employers can demonstrate specific prejudice regarding the violation of their walk-around rights.
To safeguard your company’s walk-around rights:
• Be proactive. If you learn about an OSHA inspection occurring where your employees work, insist on walking around with the CSHO, even if he has not specifically informed you of your right to participate.
• Communicate with other companies on site. Make sure a process is in place for companies at the worksite to notify each other if OSHA shows up.
• Be able to identify and articulate prejudice. If you believe OSHA violated your walk-around rights, think about what specific prejudice you were caused – such as providing additional information to the CSHO – because the Commission will require a showing of actual prejudice in order to vacate have any citation.
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 .