OSHA Inspection Defense Lawyers
Preparing For OSHA Workplace Inspections
When OSHA knocks on the door, employers all too often allow an inspection of their worksite, and then wait for days, weeks, or months to learn whether they will be cited for violations. It’s not until they receive citations when they call an attorney for help. However, working with attorneys long beforeany citation, or any inspection, actually occurs is a far better approach to protecting a business.
At Hendershot Cowart P.C., we advise clients to call our team before OSHA arrives – whether that’s proactively during times of compliance and smooth-sailing, or immediately after workplace injuries, catastrophes, and other potential inspection triggers.
Backed by decades of experience, our OSHA inspection attorneys help employers navigate all phases of the inspection process, tailor our work to employers’ unique circumstances, and deliver immediate support when there are timely issues at hand. Whether you need counsel to construct a comprehensive compliance plan, have an impending inspection, or have already been cited, the best time to call is now.
We’ve counseled businesses across Houston, the state of Texas, and beyond for over 30 years. Call (713) 489-2028 or contact us online for a consultation with our firm.
Is Your Business at Risk of an OSHA Citation?
While any employer can be cited for OSHA violations of safety regulations, OSHA inspections are especially common at certain types of businesses. Our lawyers have represented manufacturers, employers with warehouses, employers in the food manufacturing industry, in construction, roofing, trenching, excavation, refurbishing, scrap metal, rail industry, health care sector, and similar businesses in which workers are routinely exposed to danger.
Common dangers our firm has experience with include:
- Fall protection
- Scaffolding or other risks of falls
- Electrical exposure
- Heavy equipment
- Trenches or holes
- Confined spaces
Employers must comply with a complex maze of OSHA regulations, and some must comply with General Industry requirements or industry-specific guidance, such as those applicable to construction. HC understands OSHA's safety standards and what inspectors look for during these and other inspections.
Common Reasons for OSHA Inspections
Inspectors may appear at a worksite for several reasons, including:
- An injury or death on the site;
- A complaint from an employee or former employee;
- To determine whether an employer is in compliance after a previous citation; and
- Random inspections.
OSHA Inspection Process & Procedures
Site inspections are a crucial tool for OSHA – both to achieve its objective of protecting workers from potential risks, and generate additional revenue. In short, they’re not going anywhere, and employers would be wise to familiarize themselves with the process, procedures, and what to expect.
Though inspections can vary widely depending on the reason, employer, and industry, OSHA inspections generally begin to form with certain processes and procedures, including:
- Phone & Fax: OSHA has finite resources, and therefore must allocate its attention judiciously to the most concerning matters. To reduce caseload, local OSHA offices may expedite inspections through the use of phone and fax procedures, or take a different approach to complaints which are objectively low risk, such as notifying an employer, and following up with a request for a response within 10 days. Employers should furnish a thorough, timely response to these requests, and provide relevant evidence of correction / compliance, including photos, invoices for safety materials, or proof of worker training. Many phone or fax procedures, if they’re being used by the office where an employer is located, can be closed with an employer response.
- OSHA Complaint Letter: When OSHA area offices don’t utilize phone or fax procedures, or consider situations to be higher risk, they will take more action. This could mean sending an employer a formal complaint letter. Employers should still respond in a thorough and timely manner, albeit by more traditional means than phone or fax.
While employers may be able to avoid on-site inspections by complying with the procedures above, OSHA can still choose to conduct inspections nearly at will. The OSHA Field Inspection Reference Manual (FIRM), as well as state manuals, provide guidance on the inspection process and the duties of Compliance Safety and Health Officers (CSHO). Typically, that means:
- Opening conferences where credentials are presented and the inspection procedure explained;
- Records review, where safety records and other relevant documentation is requested;
- Walk-around inspection where officers gather potential evidence for citations, including measurements and sampling;
- Employee and officer interviews and informal questioning;
- Closing Conferences where officers conclude inspections (or delay, if more information is needed) and provide employers with opportunities to ask questions.
As soon as an OSHA inspector appears at your work site, our OSHA inspection defense attorneys at HC can gather evidence, answer questions, and present your position to OSHA. We can also be present during interviews with management and employees, and prepare a defense against any potential citations that are issued.
We provide representation at all stages of the inspection and citation process, including administrative hearings and appeals.
Managing OSHA Inspections
OSHA is just one of many agencies which may have regulatory oversight over a business. However, because their inspections are often unannounced, and because penalties and fines for citations can be steep, it becomes critical for employers to manage their businesses properly. That means proactively preparing and having a strategy in place to manage an inspection, as well as taking appropriate action during an inspection to place themselves in a favorable legal position.
Should an OSHA inspector arrive at your business, consider the following management steps:
- Wait for Management Personnel: It may behoove employers to establish policies to restrict admittance (i.e. not allowing an opening conference or inspection) until pre-designated management personnel are present. Employers can create and train workers (including security or reception) on specific procedures in the event OSHA arrives. Employers can also pre-designate an employee representative to participate in inspections (especially in the absence of Union officials).
- Determine the Cause for Inspection: Was the inspection based on a recent event? Is it part of a larger targeted focus on certain industries? Was it the result of a media-reported matter or complaint, or is it simply random? Well-prepared employers should be able to determine the reason for an inspection intuitively, but should nevertheless confirm with officials. Additionally, employers should determine whether inspections are related to safety (which would be the case if officers are safety specialists or compliance officers) or industrial hygiene (in which case hygienist inspectors will conduct sampling, such as noise monitoring, air sampling, etc.). Employers should perform sampling of their own simultaneously to verify OSHA results.
- Obtain Copies of Complaints: Most OSHA inspections stem from complaints, and employers should request copies of the specific complaint from any inspector or compliance officer. Names will not appear on complaints, and employers should not comment about complaints or the party who they suspect filed them. Workers who file complaints are protected against retaliation and discrimination by the Occupational Safety and Health Act. OSHA may also be assigned to conduct investigations into discrimination / retaliation complaints for protected whistleblowers; these inspections usually don’t have a physical inspection component.
- Limit the Scope of Inspection: It’s a best practice to clearly define the scope of an inspection, and compartmentalize inspections only to areas or departments where it is necessary. Employers who willingly allow inspectors to tour facilities or volunteer information can put themselves at risk for violations in “plain view,” even if they are unknown to the employer, a random or momentary occurrence, or unrelated to the underlying inspection. For most inspections, employers can escort OSHA officers to target areas via pre-designated or strategic routes. During both document review and inspection walk-arounds, it’s important for employers to keep inspectors focused on what’s relevant to the inspection.
- Protect Your IP: As a firm with an active intellectual property practice, HC knows it is crucial for employers to protect their most critical assets. OSHA is mandated by law to protect the confidentiality of products, services, processes, and other assets deemed to be trade secrets, and employers should be prepared to verify trade secrets from the very moment OSHA officers arrive, and send follow-up letters re-iterating the same following a site inspection.
- Document, Document, Document: Documentation is a crucial part of any comprehensive workplace compliance plan. That means maintaining well-organized records (which will almost always be reviewed by inspectors), having OSHA guidance posted, and showing materials for training, emergencies, hazard communication, lockout/tagout, and other safety plans. Documentation during an inspection can be just as important as before one, which means employers, unless prohibited by security or IP issues, should take photos and videos simultaneously with OSHA inspectors during the walk-around inspection.
- Post-Inspection Debrief: OSHA will interview employees during inspections, and while representatives can be present during these interviews, employers should still have plans for debriefing employees after OSHA leaves a worksite. This can provide employers with insight regarding the scope of questioning, prepare them for what lies ahead, and prepare employees for any follow-up.
Learn more about how to prepare for an OSHA inspection.
Experienced OSHA Inspection Lawyers at Hendershot Cowart P.C.
Whether you are preparing for the possibility of an inspection or you have just received a citation, our law firm will provide you with the advice and guidance you need. We serve clients throughout Texas. In addition to our main offices in Houston, we have offices where we are available by appointment in Galveston, Austin, Sugar Land and Corpus Christi.
Call us today at (713) 489-2028 or contact us online through our short, simple form.