A man’s (sic) home is his castle, so they say.
Where he or she is able to make the rules and reign supreme over their subjects.
But is a workplace an employer’s castle where monarchs employers are allowed to reign supreme over their subjects workers without interference from intrusive government invaders?
Some law firms seem to think so.
And they’re offering advice for self-respecting castle-owners who are concerned about defending their realm against barbaric OSHA inspectors who seek to breech the fortress walls, stir unrest among the peasants workers, and force them to eliminate hazards and protect workers from injury, illness and death.
Luckily for corporate monarchs, Adam Young and Mark Lies II, attorneys at the corporate law offices of Seyfarth Shaw LLP, present solutions to these problems in their recent article entitled “Be Ready to Defend the Castle: Employers Need a Written OSHA Inspection Management Policy.”
And none too soon! The barbarians are at the gates!
OSHA has been “gearing up with a new generation of compliance officers,” warn Young and Lies, “training them to pursue an aggressive enforcement-first strategy, and gunning to issue the numerous and easy-to-prove citations.”
True, they admit, penalties may be inconsequential, but “potential adverse effects include liability for Repeat or Willful citations down the road, adverse evidence in tort or third party litigation, and damaging reputational harm.”
And “worse still, OSHA pursues criminal charges against operations and safety managers for willful violations issued in connection with fatalities, and for misstatements during OSHA inspections.”
In other words, if you violate OSHA standards, repeat those violations, knowingly fail to comply with a legal requirement or act with plain indifference to employee safety, or if you willfully kill a worker, or lie to an OSHA inspector — the walls of your castle may be crumbling.
How unfair.
And worst of all, your otherwise stellar reputation may be damaged and your executives may be shamed. Not because some of your workers have been injured or killed in your unsafe workplace, but because of the disgrace caused by unwelcome OSHA inspectors storming the ramparts and catapulting citations over the walls of your castle.
YOUR castle.
What is to be done?
How to prevent unpleasant OSHA inspections and citations?
Maybe making your workplace safe? Preventing injuries, illnesses and deaths? Implementing a robust health and safety management program?
Nah!
According the Seyfarth Shaw LLP attorneys, there is only one way: “The probability of receiving citations can be greatly reduced through a robust OSHA inspection management strategy and written program… to prepare your organization for an onsite inspection by OSHA.”
Sure, your employees may be getting hurt, mangled or killed, but never fear. If the OSHA inspectors show up, “An organized, professional response will ensure that the employer is presented in the best possible light.”
How to prevent unpleasant OSHA citations? Maybe making your workplace safe? Preventing injuries, illnesses and deaths? Implementing a robust health and safety management program?
Nah!
What is an “OSHA Inspection Management Plan?”
What are the highlights of an “OSHA Inspection Management Plan?”
- Professionalism: Whatever workplace carnage your unsafe workplace may have caused, “The employer should demonstrate off the bat that it is highly sophisticated and takes occupational safety and health extremely seriously.” (But somehow the authors fail to suggest that after a serious injury or fatality, the employer should always issue a statement offering “thoughts and prayers” for the families, and emphasizing that “health and safety is our highest priority.”)
- Diversion: OSHA inspectors are instructed to focus only on the specific location, machine or process that may have caused an injury or led to a complaint, but they are also allowed in investigate any problems they identify on the way over to that location. So, of course, the Young and Lies urge employers to find a way to get the inspector to the target location, while “minimizing exposure to other equipment or alleged hazards that OSHA will see. Sometimes the most efficient route will be walking outside, using a golf cart, or driving in a car to remote part of the facility.”
- Control: For God’s sake, don’t let OSHA inspectors just wander around your workplace. Nothing good can come of that: “The employer has the right to have a manager guide the inspection and stay with OSHA at all times. Where OSHA fails to stay with management and wanders off in an industrial area of the facility, the inspection should be suspended and counsel should contact OSHA’s Area Director as soon as possible.”
- Parallel Evidence: To ensure that OSHA doesn’t use A.I. to create Big Fake altered evidence, when OSHA inspectors take photos, management should take the same photos. Same with air monitoring.
- Control Interviews: OSHA is allowed to interview your workers, but be careful. While admitting that “non-management employees have the right to a confidential interview with OSHA, or to have the representative of their choice present,” the authors caution that “The employer must prepare employees for interviews to ensure that they understand their rights and responsibilities. They should also be refreshed on the substantive area that is being inspection [sic];If the inspection involves a forklift, employees should be reminded of the relevant policies and their training.” Furthermore, “Short preparation sessions will ensure that employees are truthful and know their rights during OSHA interviews. [emphasis added]
(OK, so maybe I’m just the suspicious type, but do all of these “preparation sessions” and “refreshers” and “reminders” to “prepare” the employees for interviews make anyone else nervous?)
And it’s nice that the authors are so concerned about employees knowing their rights, but I see nothing here reminding employers that it is illegal to retaliate against employees for candidly discussing health and safety issues or pointing out other problems in the workplace that OSHA inspectors might want to take a look at.
Maybe I’m must the suspicious type, but after decades working with and training workers, these “short preparation sessions” to “preparing” your employees for interviews send shivers up my spine.
6. Be Prepared: “Defenses to an OSHA citation should be developed before the citation is issued – starting after an accident takes place and during OSHA’s inspection. Employers should have a written Inspection Management Policy in place to ensure that the employer and the boots on the ground representing the employer defend inspections appropriately and manage all information provided to the government.” [emphasis added]
One the other hand, maybe the best “defense to an OSHA citation” should begin not “after an accident takes place,” but before an accident takes place. By making sure there is nothing in your workplace that might cause an “accident” or lead to an OSHA citation.
And, finally, where can one find this handy OSHA Inspection Management Policy?
Young and Lies recommend that you “work with qualified outside counsel.” And not coincidentally, “We conduct complementary training in person or virtually on all inspection management issues.”
Good to know. How else are poor starving corporate attorneys going to put their kids through college?
Inspection Management Plan or Health and Safety Management Program?
All of this sounds great. But I’ve got some better (and cheaper) advice:
- Instead of spending big bucks on OSHA defense attorneys, (and paying OSHA penalties) after one of your employees is injured, killed or files a complaint, try spending fewer bucks by ensuring the safety of your workplace before workers get hurt. Or, if you’re a small business, check out OSHA’s free Onsite Consultation Program.
- Instead of stuffing an expensive Inspection Management Plan on you bookshelf and pulling it out after one of your employees is injured, killed or files a complaint, check out and implement OSHA’s free online health and safety management program guidelines. Your tax dollars at work.
- Instead of treating your non-management employees as traitors-in-waiting, treat them as partners in identifying and fixing the hazards in your workplace. They are the real experts.
- Don’t view OSHA inspectors as barbarians at the gates. In fact, if you have a safe workplace, a health and safety management program and a good relationship with your employees, you — as an employer — should welcome an OSHA visit to your castle.
- Fire the court jesters. You can search long and hard, but not once in the entire Seyfarth Shaw article will you find any recommendation that employers prevent all of these problems by making their workplace safe — with the added benefit of protecting their employees. I’m no attorney, but that sounds like legal malpractice to me.
This law firm forgot #7 – “If cited, appeal citations and fight all the way to the Review Commission or even the Court of Appeals (or the state equivalent for OSHA State Plan states).” (I wonder if now that the infamous Court of Appeals judge who compared Orca trainers to pro football players is on the Supreme Court, they are willing to go that far?)
“Then hire consultants who are willing to be less than truthful as your expert witnesses – your law firm may have a list of these.”
Oddly reminiscent of Upton Sinclair’s comment about aiming for the heart and hitting the stomach- The Jungle was intended to bring to light the deplorable working conditions of the employees there, but instead the public was outraged first and foremost over how it affected their food. And you already nailed it at the end, but, what if – instead of paying retainer to attorneys for “dealing” with OSHA – they used free consultation services in tandem with professional safety engineering to address hazards directly (and by extension the conditions that would trigger an OSHA inspection in the first place)? What a concept!
Not that I’m in the practice of defending lawyers (these guys are obviously soulless sharks), I have spend a small part of a 40 year career working with and for law firms, who while working to minimize the financial liabilities of their clients, were primarily interested in having me solve the problems that led to the OSHA citations in the first place. Often, these businesses did not have OEHS professionals on staff and needed more technical expertise, sometimes I was engaged proactively by companies through their attorneys who wanted to find and solve problems before someone got hurt or a regulator came knocking. I have been deposed several times and testified in court once. I have been involved in clients’ OSHA opening and closing conferences. I was never given the Cassidy Hutchinson treatment by these attorneys nor was I ever induced to “look the other way.” Not all of them as as amoral as these lawyers.
I agree. I have known some very good ones who do want to solve problems (and who counsel the employer to fix things ASAP, even if they appeal). Unfortunately I have known some bad, high power attorneys and firms who loved to skate just inside the boundaries (and sometimes managed to go way outside of that). The good ones and the companies who try hard were good to work with, whether small firms or large multinationals.