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October 28, 2014 | by Steve Wilder

OSHA’s here! Know your rights

Having an Occupational Safety and Health Administration (OSHA) inspector walk through the door for an unannounced survey is enough to stress any administrator. When you hear: “I’d like to interview some of your employees,” those eight simple words can leave you feeling like the day cannot get any worse.

Although the administrator cannot refuse to make his or her employees accessible, Mark A. Lies II, a labor and employment lawyer and partner with Seyfarth Shaw LLP in Chicago, points out that both the employee and the employer have certain rights that they may exercise at any time. And sadly, many OSHA inspectors will not tell them what those rights are.

The general rights of each party involved in an OSHA inspection, according to Lies, are outlined below.

EMPLOYEE RIGHTS

  • The employee has a right to a confidential one-on-one interview with the compliance officer, which is considered “protected activity.” The employee cannot suffer any “adverse action” from the employer for exercising this right. The compliance officer cannot disclose the contents of the interview.
  • The employee has a right to refuse to be interviewed by the compliance officer. Many employees are reluctant to speak to compliance officers because they have been emotionally affected by an accident in which a fellow employee has been injured or they are fearful of speaking with a government representative. Some employees believe they may be intimidated or manipulated during the interview, exposing them to liability. In this situation, an employee cannot be forced to have a private one-on-one interview. These interviews are totally voluntary. If the employee declines to be interviewed (and the employee need not give any reason for the decision), then the agency will have to decide whether to obtain a subpoena to require the interview. If a subpoena is obtained, the employee has the full scope of rights to respond, including the right to counsel.
  • The employee has a right to decline a one-on-one interview and has the right to have a person of his or her choice attend the interview. If the compliance officer refuses to allow this person to attend, then the employee can decline the interview without giving a reason. Some employees feel more comfortable if another person is present during the interview.
  • The employee has a right to end the interview at any time for any reason. Because the interview is completely voluntary (unless OSHA has obtained a subpoena, in which case the employee has additional rights and should consult legal counsel), the employee can terminate the interview at any time and can leave without any explanation.
  • The employee has a right to refuse to sign a statement, be tape-recorded or be photographed. Again, because the interview is voluntary, the employee cannot be required to sign a statement. Under most state eavesdropping laws, any individual can refuse to be tape-recorded without giving a reason. In several states, it is a criminal offense to tape a conversation without the permission of all persons involved in the discussion. Finally, any person can refuse to have his or her photograph taken.
  • The employee has the right to refuse to provide any private contact information, such as home address and telephone number.
  • The employee has the right to require the interview to occur at the workplace.

EMPLOYER RIGHTS

  • The employer has the right to inform its employees of their rights during an inspection.
  • If the employee consents, then the employer must allow the employee to be interviewed by OSHA.
  • The employer has the right to participate in non-private employee interviews (those attended by a third party, such as a union representative) and, if the compliance officer refuses, to require that the interviews occur on non-paid work time.
  • The employer has the right to attend interviews of the company’s management representatives, because they are agents of the employer.
  • The employer has the right to end the interviews if they become disruptive, that is, unreasonably interfere with ongoing work or become confrontational, in which case the employer should consult legal counsel regarding the termination of the inspection.

OSHA RIGHTS

The compliance officer has the right to interview the employee in private, if the employee consents. In addition, the compliance officer has a right to receive truthful responses to his or her questions.

Lies, a personal friend with whom I have worked many times over the years, also created a two-page summary checklist that employers can give to employees in preparation for an OSHA interview. Although it is too long to share here, I will gladly share it, with his permission. Just send me an email.

CONCLUSION

Contrary to rumor, OSHA surveyors are not bad people. Although we know some overzealous ones exist, most are good people just doing their jobs. Every now and then, however, we meet that one person who seems bent on making a name for himself or herself and tries every trick in the book to do so at a facility’s expense. When that happens, knowing your rights, the rights of your employees, the rights of the company and OSHA’s legal rights becomes critical.

Stay safe, and stay in touch!

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Topics: Executive Leadership , Regulatory Compliance