Dale Explains How to Manage the OSHA Inspection Process
INDIANAPOLIS, IN Gregory N. Dale, a Partner in the law firm of Faegre Baker Daniels provided members of the Coalition for Construction Safety (CCS) (formerly the Metro Indianapolis Coalition for Construction Safety, or MICCS), with a detailed presentation about how contractors can most effectively and efficiently manage the process of undergoing an OSHA inspection.
Dale has more than 25 years of experience representing management in labor and employment law matters. He regularly represents businesses in employment discrimination matters, labor arbitrations, employment contract issues, supervisory training and wrongful discharge litigation.
He is the management-side Editor-in-Chief of the Occupational Safety and Health Law treatise (Third Edition) published by Bloomberg BNA and the American Bar Association through its Section of Labor and Employment Law and the Occupational Safety and Health Law Committee.
Among the many circumstances he addressed is what to do if your key person is not at the job site when an inspector comes calling. Dale said that asking the inspector to wait a reasonable amount of time is appropriate but cited an unofficial "hour rule" as the limiting factor. He said that the inspector and the contractor both have an interest in having the appropriate people present since under those circumstances the inspection is likely to be more fruitful in terms of an immediate ability to see to it that any fixable problems are immediately addressed.
He encouraged contractors to imagine at any given point that an inspector will be at a job site soon: what, if anything, would they immediately check? Such a practice is preparation should an inspection actually occur.
Dale warned of being lulled into a false sense of security if the inspector is, as they are trained to be, polite. "Be careful," he warned, "let's not forget that they are inspectors. They can be nice and easy-going, but you can still get fined."
Investigators can question hourly employees and if they do, then the employees have a right to do so in private. But, they do not have to talk to them absent the presence of a summons or subpoena. Dale suggested that employers not impose any rules that would hinder employees' access to be questioned by inspectors. He also said that employers should refrain from asking them about what they said.
Since management officials can bind the company by their remarks, a company's legal counsel should always be present if an inspector wants to talk to them.
In a typical random inspection, Dale believes that legal counsel need not be present. However, if there has been an incident and a fatality or serious injury has occurred, counsel should be present. In addition, counsel is needed if there are multiple employers involved or if there has been a large-scale event.
If an informal conference occurs subsequent to an inspection, then Dale says that an attorney for the company is not needed. "Informal means informal," he said.