When a Compliance Officer (OSHA Inspector) appears at your workplace, employers should be aware that everything a supervisor or manager says at any point in time to the inspector could, and probably will, bind the company to support a citation.
Imagine that an OSHA Inspector appears at your place of business based on a complaint of safety concerns by employees. The OSHA Inspector presents credentials, and the opening conference begins. The Inspector indicates that he received a complaint of amputation hazards due to guards being removed from certain machines. However, the complaint is vague and does not specify where in the facility the machines are located. The 1st shift supervisor, trying to be helpful and courteous to OSHA, says that “I know the area where they’re located. It’s just a recent issue. Some employees removed the guards so they could do the job quicker but we’re in the process of putting the guards back on.” OSHA can rely on the statement from the supervisor to hold the employer liable for knowledge of the hazard.
The law requires OSHA to prove the following four elements in order to establish a prima facia case that a safety standard was violated: (1) the standard applied to the cited condition; (2) the terms of the standard were violated; (3) one or more employees had access to the relevant hazard; and (4) the employer knew or, with exercise of reasonable diligence, could have known of the presence of the violation. EMCON/OWT, Inc. v. Sec’y of Labor, 224 Fed. App. 875, 875-875 (11th Cir. 2007). So, the statement of the supervisor in the illustration above could satisfy OSHA’s burden for element number 4 imputing knowledge of the violation to the employer. Further, it could possibly also be used to satisfy OSHA’s burden for element number 3 establishing that employees had access to the relevant hazard.
OSHA can rely on statements made by supervisors or managers at any time during the inspection process. There are few guidelines and prohibitions on OSHA using any and all statements made by supervisors or managers. However, in contrast, OSHA’s Field Operations Manual has detailed guidelines for conducting interviews of non-supervisory employees. The purpose of those guidelines is to maintain the confidentiality of the contents of those interviews from the employer.
In the example above, the OSHA Inspector has not conducted an official “interview” of the 1st shift supervisor. Yet his statements helped OSHA’s case for a citation. While the supervisor was simply trying to be helpful, his statement may have bound the company and assisted OSHA’s case for a valid citation.
We recommend that employers develop procedures and “best practices” to minimize the risk of statements of management and supervisors being used by OSHA to support citations. Here are some suggestions:
- If time permits, have an attorney present during the OSHA inspection and have the attorney provide most of the information to the OSHA Inspector. OSHA generally cannot use statements made by attorneys as evidence. Formal interviews of management personnel can be scheduled later.
- Managers must limit what is said to the OSHA Inspector to matters that are necessary to directing the Inspector to the area within the scope of the inspection. Arrangements should be made for formal interviews of hourly employees at times that do not interfere with production.
- Managers and Supervisors should not make any comments about hazards such as the guarding of machines, how machines are locked out, environmental concerns and other such issues. The company should simply direct the OSHA Inspector to the area of concern and leave the providing of information to a later formal interview.
Companies should seek legal counsel or consult with a safety specialist regarding these issues.