Occupational Health & Safety

How to Handle the Post-Inspection Process

Do not allow yourself or your people to be steamrolled.

• By Jon Phillips
• Jun 01, 2005

THIS article is the result of being involved in approximately 100 OSHA inspections and informal conferences and contests. My aim has been to counsel clients on how best to present a position with confidence. Note that the predominant type of counsel I have provided has been in the realm of the construction industry since 1996.

I have had the privilege of the tutelage of a former OSHA compliance officer (COSHO) in the course of my successes in this area. Walter Dennis spent many years in Region VII and, on his retirement, he and I worked together on a number of cases before his death in 2003.

Be Present
The starting point is always, if possible, to be present during the inspection. Your presence helps you to coordinate your defense of your position and to have the best and most diplomatic relationship with the OSHA office. Diplomatic has always been my watchword. I have found that angry confrontation will do little if any good to anyone.

Go into the inspection with the knowledge that your compliance officer has a legitimate reason to be there, and that he puts on shoes and socks every day just like you, we hope. This is my way of saying your compliance officer has a job to do, as you do.

When you get the call for the visit, understand that the compliance officer is on a schedule but that you have a schedule, too. They usually are agreeable. Tell them when you can be there and be reasonable about it. Do not allow the inspection to proceed until you or an authorized representative is on site. Prior to your arrival, the conversation is weather, fishing, kids--anything but the job or the company. People have a tendency to get wordy and say things that are inappropriate.

Employee Interviews
Walk the inspection, take pictures, and note all the issues the officer notes for his report. Make note of the people interviewed. Do not volunteer information unless asked specific questions. If you do not know the answer for certain, assure him an answer will be made available.

Counsel your employees that if they do not want to be interviewed, they do not have to be. If they are uncomfortable with a question, ask for an opportunity to answer later. At the closing conference on site, take notes on what is said and who was involved.

After the Inspection
Once the inspection is over, start researching what the standard says about the issues. Pay close attention to the interpretive letters and other documentation regarding the standard cited. It is possible the citation is based on something other than what the standard was written to accomplish.

Go to your company records of toolbox talks, training records, disciplinary files, etc. You need to document what you have done prior to the inspection to avoid the problem. Once you receive your citations, you may find other items to research, and you should follow the same process. It is time to set up your informal conference. Do not go for the expedited informal settlement! While the reduction in fines is attractive, the time spent in the informal conference is well worth it.

Evaluate at this point whether or not you need to involve corporate legal counsel. If there is a death or other serious injury, you really need the help of corporate legal. You also may find it helpful to engage the services of a safety professional who has experience in this area.

The informal conference is a place to discuss the citations, not to air personality likes or dislikes. If you have good evidence of positive prior action, present that evidence. Most likely, you will find up to a 50 percent reduction in penalty, possibly removal of a citation. What you are after is getting the classification changed. If possible, you want all citations classified as other than serious.

If in the informal conference you feel you are not getting a fair hearing of what you have been doing to prevent losses, have a letter of contest in your pocket ready to hand them in the event you cannot agree. Your letter should state that you disagree with the content classification or the penalty of the citations.

Ultimate Resolution
Once the letter of contest has been delivered, OSHA will now send your case to the solicitor. Do not be dismayed. Unless your history with OSHA is a bad one, you will have ample opportunity to talk this out with the solicitor and come to a reasonable solution.

You want the settlement agreement to have language in it that any citation paid is not an admission of wrongdoing. Your legal counsel, if involved, will handle this, but the solicitors know how to do it. I have found that the solicitors have been very fair and, like most people at OSHA, have a heavy workload. They want to settle, so talk to them and get things settled.

In closing:

• Be diplomatic.
• Stand up for yourself.
• Present your case in a positive manner.
• Do not allow yourself or your people to be steamrolled.
• Do not be afraid of the informal conference or to contest your citations.
• Use your judgment on whether or not to involve legal counsel. (It is often unneeded in non-injury cases unless there are large fines at stake.)

This column appears in the June 2005 issue of Occupational Health & Safety.

This article originally appeared in the June 2005 issue of Occupational Health & Safety.

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