Handling Inspections: Tips from the Insiders
4/21/2002
 by Robert J. Grossman
Fear of the Occupational Safety and Health Administration (OSHA) doesn't have to paralyze you when an inspector turns up at your worksite. Plenty of employers have survived OSHA inspections, and some of those survivors are willing to share their insights and experiences to guide you through an impending inspection.
And you don't have to wait until you hear OSHA's footfalls on your front walk to start implementing that advice. There are many steps you can-and should-take immediately, before the first signs of trouble creep across your peephole.
Here then is a collection of tips-some you can use now, some you can use when OSHA officers show up-from those who have been there.
DEVELOP A TEAM
If you want your organization to be prepared for OSHA inspections, assign an employee that task. "Appoint an OSHA coordinator," advises Neville C. Tompkins, SPHR, a consultant and author of A Manager's Guide to OSHA (Crisp Publications, Menlo Park, Calif., 1994). "Where there's no full-time manager, it could be the HR guy."
Your coordinator must know the business well, he says. In addition, the coordinator will need to assemble an OSHA team, which should "include the production manager, maintenance manager and the plant nurse who keeps the records."
Once the team has been assembled, hold a rehearsal of an inspection, suggests Tompkins.
Lawrence Halprin, an attorney with Keller and Heckman in Washington, D.C., also endorses rehearsals. "We have a former compliance officer who goes out and runs mock drills for our clients," he says. "We run it just like a fire drill."
INVOLVE EMPLOYEES
Employers and HR professionals should make sure that employees are ready for inspections. Start by preparing workers in advance for the possibility that OSHA officials may ask them questions.
"During orientation, explain that the company is subject to inspections by the government and an inspector may want to speak to you about your work here," Halprin advises. He says "Tell them, 'Our policy is to make you available voluntarily [meaning the company won't require OSHA to get a subpoena]. If you want to speak to an inspector by yourself or with your union rep, that's fine.'"
June Brothers, group director of HR in Atlanta for forest products company Georgia-Pacific Corp., says that getting employees involved in training is key. "Have them really involved in the safety program-helping you do the accident investigations, doing walk-around inspections, helping do job analysis," she says.
She also suggests offering "very specific safety training-not just showing folks a video. If you take that kind of proactive stance, you're probably not going to get complaints." Georgia-Pacific, which has 48,000 employees, averages four or five OSHA complaints a year.
John Kipta, area human resource manager for Reliant Building Products in Dallas, agrees that establishing a good training program is vital. "Look at your safety program the same way you would look at other HR training programs," he suggests. "In an average company, there's plenty of off-the-shelf programs. The problem is most of these are simply a video. Instead, you need to move to applied learning where the employee has to demonstrate a level of competence. Companies doing this find that when OSHA shows up, they're in better shape. The employees are educated; they know the processes."
BUILD BRIDGES TO OSHA
Another smart preemptive step is to get to know your local OSHA compliance officers before problems arise; if they have confidence in your integrity, you'll be ahead of the game.
"You want to develop a relationship with the area office," says Eric Brett, corporate safety manager at Hitchiner Manufacturing, a metal casting firm in Milford, N.H. "We have a good comfort level, so now if there's a gray area, I don't hesitate to call them up for advice. And because they know us, when they receive a complaint, they follow up with a letter. Depending on our response, if they like the way we abated the problem, they won't come on site."
Brothers takes a similar approach. "We try to develop a partnership, a working relationship with OSHA. It can be as simple as dropping by the local office, picking up materials, asking them questions. A lot of people are afraid to ask OSHA a question, thinking if they do [OSHA] will descend on them. It doesn't happen that way. They'll give you the information and at the same time it will help you develop a working relationship so OSHA knows you're trying to do the right thing."
Patrick Kapust agrees. Kapust served as an OSHA compliance officer for eight years before recently becoming a safety and occupational health specialist in OSHA's Office of General Industry Compliance Assistance in Washington, D.C. "If someone calls up with a question, we're going to try to answer it. We don't go out there; our goal is to reduce hazards, not issue citations. It's better for us if we can take care of it on the phone."
GET THE FACTS
When an inspector arrives on site, ask to see his credentials-a photo ID on one side and the U.S. Department of Labor emblem on the reverse. "Make sure the person has official credentials," cautions Kipta. "There have been cases where it was an environmental or activist group just wanting to get into a company."
Next, ask for some time to assemble your team, designate who will accompany the inspector and notify company officials and legal counsel of the pending visit. The inspector, called a compliance safety and health officer, or CSHO, expects that you will need some time and is prepared to wait prior to convening the opening conference. "The rule of thumb is from the time I make entry, you've got an hour to call whoever you should call," Ka pust says.
Now's the time to assemble your safety team-safety official, record-keepers, plant managers and other people who can take steps to correct violations. If there's a union, the representative has a right to be included throughout the entire process. Multi-site employers like Georgia-Pacific encourage a call to headquarters for assistance.
Fax copies of the complaint for your legal counsel to review. "We called our attorney," says Gretchen Zierick, vice president at Zierick Manufacturing Corp., a maker of electronic connectors, in Mount Kisco, N.Y. "He said don't let them in until I'm there. It aggravated them but they came back later that day and conducted the inspection with him along."
Zierick also has a back-up if her lawyer is unavailable. "I called the lawyer from our trade association and he walked us through the process by phone," she recalls.
YOUR RIGHTS AND WHEN TO ASSERT THEM
At the opening conference, the OSHA inspector will explain the purpose of the visit. At that time, ask for a copy of the complaint and inquire about the nature of the inspection. Is it a wall-to-wall inspection' Is it limited to a specific complaint'
"If it's a complaint, we'll give you a copy of the complaint, absent the complainant's name," Kapust says. "Then we explain the nature and scope of the inspection. We say, 'We'll be looking at the specifics plus any hazards in plain view. Any hazards that we see along the way we have the right to address. You decide how to get us there.'"
When you face off with OSHA on legal grounds regarding an inspection, your chances of winning are slim. Invariably, OSHA's rights trump the employer's. Basically, the Occupational Safety and Health Act gives OSHA inspectors the right to go wherever they want, perform whatever tests they want and speak to workers outside your earshot (but with a union representative present). The act guarantees workers the right to express their views without retaliation.
You can demand as sur ances that the agency will guard your trade secrets, and you can encourage inspectors to conduct employee interviews in ways that won't hamper production. You also can accompany the inspector during the inspection and take your own photos, videos and tests to compare with his.
At any point during the visit, you have the right to deny access to OSHA, unless the agency has a warrant. But the demand for a warrant is a right that's rarely exercised because it only delays the inevitable.
"It's rare that someone demands a warrant," Kapust says. "I ask first if you're going to let me conduct the inspection. If you say yes, I show you the complaint; if you say no, it doesn't bother me. I get a warrant. There wouldn't be any discrimination against you for exercising your right, but by doing it you've increased your stress level more than ours.
You know we'll be coming back, but you don't know when and you don't know what we're looking for. If you're nervous to begin with, it doesn't get any easier."
Attorney Halprin agrees, noting that "demanding a warrant is a bad tactic," but he offers different reasons. He asserts that "There are some inspectors who will be annoyed. When you invite them to get [a warrant], they'll return with a document that arms them with more authority than before. You're giving up the ability to control for purposes of delay. It's very rare, in the big scheme, that the delay is going to help you. Best advice: Cooperate and maintain control."
BE PROFESSIONAL AND COURTEOUS
Veterans of site visits report that, because the deck is stacked in OSHA's favor, you can't afford not to be cooperative. "Your watchwords should be professionalism and cooperation," advises Tompkins, who has lived through 30 inspections. "Avoid being obstreperous or not providing responses to legitimate questions."
Murray Dalziel, global managing director for management consultants the Hay Group, in Philadelphia, says, "Remember, your reaction will be observed by other employees. If you get nervous, so will they."
Don't volunteer too much information, don't be hostile and-whatever you do-don't lie, Halprin counsels. "If you don't know an answer, say 'I've got to check.' Don't make something up or tell something untrue. It will take away your credibility and you may be liable criminally."
Kapust says that lying probably won't work anyway. "You can sense when someone isn't upfront and is misleading you," he says. "They're not helping themselves. It will just make the investigation go longer. There's certain information that the compliance officer has to get, and unless you're a very good liar and have all your ducks in a row, we're ultimately going to get it. It will take time, but we'll get it.
"And don't yell at us," he adds. "It doesn't get you anywhere. Remember, the compliance officer is not there as the representative of everything that's wrong with the federal government. You can tell me that you think the inspection is another example of your tax dollars being wasted. Fine. If you think that, you can say it. But then we've got to move on. It's out of the CSHO's hands.
"Relax," he advises. "No one is out to get you. The compliance officer has a job to do and he's going to have to get it done. Ask questions and get a dialogue going. It builds mutual trust; the more you talk to us, the more you'll understand what we're about. Take it as a learning experience. It's not a gotcha-type activity."
On some visits, especially when they've had no prior OSHA visits, the employer's attitude is combative. "There's this perception that you're using gestapo-type tactics just to find violations," Kapust says. But he adds that an inspection can be "a positive learning experience rather than a negative one. Plenty of people thank me."
THE SHORTEST ROUTE AND FASTEST SOLUTION
Once an inspector arrives on site, if it's not a wall-to-wall inspection, you decide the route he takes to his target, which means you control his ability to see additional conditions in plain sight that might pique his interest. At any time, based on what they see or hear, CSHOs can expand the visit into a wall-to-wall. Authorization is only a phone call away.
"We show them the areas they ask to be shown using the most direct route," says Hitchiner Manufacturing's Brett.
You should also try to resolve violations as quickly as possible, says Brett. "Do everything you can as fast as you can to correct violations as the inspector notes them," he says. "Provide the inspectors with people who can effect change immediately if a deficiency is found. Have the senior-most person there who can get people fixing the deficiency as soon as possible."
Prompt attention to violations can save you money and paperwork, Kapust confirms. In the end you'll still be cited, but you may not be penalized.
THE CLOSING CONFERENCE
When the inspection is completed, the CSHO will hold a closing de-briefing and go over the violations discovered. Don't expect to hear about potential penalties at this meeting; penalties cannot be discussed until the CSHO's supervisor reviews the report and issues written citations with penalties.
At that point, some employers may be eligible for an Expedited Informal Settlement Agreement. "It's offered only to employers where there were no repeat, willful or failure-to-abate violations identified in their audit and where they were willing to correct the violation found no later than the dates indicated in the citation," says Kapust. He adds that the settlement can cut an employer's penalties by as much as 30 percent.
If you disagree with the citation for any reason, request an informal conference with the area director within 10 days of receiving the citation. Kapust says, "You sit down with the area director and tell him what your grievance is with the citation, say, 'The penalty is too much' or 'We need more time.' He signed it and he can adjust it. He can reduce penalties and extend abatement."
Tompkins adds that, in this meeting, "You go through the items in the citation, demonstrate what's been taken care of since the visit and present evidence to prove it-photos of the repairs, completed maintenance work orders. After listening, the area director may offer to reduce some or all of the fines and offer a settlement that you can agree to on the spot." If you don't reach a settlement, the law provides for a formal appeals process.
Robert J. Grossman, a contributing editor of HR Magazine, is a lawyer and a professor of management studies at Marist College in Poughkeepsie, N.Y.
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