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