WHAT TO DO BEFORE AND WHEN THE

DEPARTMENT OF LABOR CALLS:

A GUIDE TO OSHA REGULATIONS,

INSPECTIONS AND CITATIONS

TEXAS LAWYER’S IN-HOUSE COUNSEL SUMMIT

APRIL 4, 2013

Kenneth W. Bullock, II

1200 Smith Street, 14th Floor

Houston, Texas 77002

Telephone: (713) 654-9637

ken.bullock@chamberlainlaw.com

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WHAT TO DO BEFORE AND WHEN THE DEPARTMENT OF LABOR CALLS:

A GUIDE TO OSHA REGULATIONS, INSPECTIONS AND CITATIONS

It goes without saying that addressing workplace and worker safety is an absolute

requirement in all modern employment situations, not only from a legal perspective but also

from a moral and ethical perspective as well. Since the dawn of the Industrial Revolution,

workers migrating from the farms and fields of rural settings to the clang and clatter of

mechanized factories in densely populated metropolitan centers have faced constantly changing

and evolving workplace hazards. Not surprisingly, such workplace hazards and conditions have

made front-page news for centuries and still do today: Journalist-turned-novelist Upton Sinclair

brought international attention to poor working conditions in the meatpacking industry in his

1906 novel The Jungle;1 Apple has made recent headlines in dealing with allegations of child

labor at Chinese manufacturing facilities.2

In an attempt to regulate workplace and worker safety and address these varying and

ever-changing conditions, the United States Congress passed and President Richard M. Nixon

signed into law the Occupational Safety and Health Act of 1970 (“OSH Act”).3 Under the OSH

Act, Congress empowered the Secretary of Labor to, among other things, promulgate and

enforce a set of comprehensive “occupational safety and health standards applicable to business

affecting interstate commerce, and by creating an Occupational Safety and Health Review

Commission for carrying out adjudicatory functions under the Act.”4 Congress also empowered

the Secretary of Labor to “encourag[e] employers and employees in their efforts to reduce the

number of occupational safety and health hazards at their places of employment,” “provid[e] that

employers and employees have separate but dependent responsibilities and rights with respect to

achieving safe and healthful working conditions” and “provid[e] for research in the field of

occupational safety and health.”5

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Despite these lofty goals, the Occupational Safety and Health Administration (“OSHA”)

has risen to the task. OSHA reports that, since implementation of the OSH Act in 1971,

workplace fatalities have declined by sixty-five percent (65%) and reported incidents of

occupational injuries and illnesses have declined by approximately sixty-seven percent (67%).

Similarly, and although the workforce has essentially doubled in size, workplace fatalities have

decreased from approximately thirty-nine (39) per day in 1970 to approximately thirteen (13) per

day in 2011.

In light of the significant advances in workplace and worker safety realized as a result of

OSHA’s over four (4) decades of work, it is not surprising that the OSH Act, and its enforcement

agency OSHA, play an important role in the modern workplace. With this in mind, the prudent

employer will not only recognize the beneficial impact of the OSH Act on daily workplace

activities, but will also be mindful of the fact that compliance with the OSH Act and its

standards, regulations and directives must be a critical focus of company policy.

This paper will offer the reader with a general background of understanding concerning

the OSH Act, its application to the domestic workforce and an overview of the regulatory

framework defining the workplace and worker safety standards promulgated under the Act.

Additionally, practical tips and strategies for addressing the OSH Act’s requirements and

working with OSHA are provided.

I. APPLICATION OF THE OSH ACT.

Effective April 28, 1971, the OSH Act defined a broad mission for the newly created

federal agency overseeing workplace and worker safety:

To assure safe and healthful working conditions for working men and women; by authorizing enforcement of the standards developed under the Act; by

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assisting and encouraging the States in their efforts to assure safe and healthful working conditions; by providing for research, information, education, and training in the field of occupational safety and health ….6

Not to be overshadowed by the breadth of such an all-encompassing mission statement,

Congress’ grant of jurisdiction and authority under the OSH Act is even broader still:

This Act shall apply with respect to employment performed in a workplace in a State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, the Trust Territory of the Pacific Islands, Outer Continental Shelf Lands ….7

Thus, the OSH Act applies to virtually every employer and employee in nearly all workplace

scenarios under United States control.

While the application of the OSH Act is unmistakably broad, there are, however, three

(3) broad classes of employers and employees expressly excluded from the Act: 1.) The self-

employed; 2.) family farm workers with no other outside employees; and 3.) those employees

whose conditions of work are otherwise regulated by another Federal agency.8

Although the first and second classes of excluded workers are self-explanatory, the third

class of excluded workers is, by definition, dependent upon the jurisdictional grants of other

Federal regulations. For instance, workplace and worker safety regulations governed or overseen

by the Mine Safety and Health Act (“MSHA”), Federal Aviation Administration (“FAA”),

United States Coast Guard (“USCG”) and the Bureau of Safety and Environmental Enforcement

(“BSEE”) all preempt application of the OSH Act to their respective workforces and places.9

Thus, it is incumbent upon the employer to determine whether and to what extent the

requirements of the OSH Act may be preempted by other Federal regulation.

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II. THE OSH ACT AND SUPPORTING REGULATORY FRAMEWORK.

As noted above, the OSH Act provides a basis for authority to develop and issue

regulations affecting workplace safety by charging the Secretary of Labor to “promulgate as an

occupational safety or health standard any national consensus standard, and any established

Federal Standard ….”10

In general terms, the OSH Act imposes several affirmative, non-delegable duties upon

employers regarding workplace and worker safety. These duties include, but are not limited to:

1. Provide employees with a workplace free from serious hazards;

2. Inform employees about potential workplace hazards through training, labels, alarms and related systems and processes;

3. Maintain accurate records of work-related injuries and illnesses;

4. Monitor and test workplace conditions;

5. Provide hearing examinations and other medical tests where required;

6. Post OSHA Citations, injury and illness data and related safety documentation in the workplace; and

7. Notify OSHA of workplace incidents involving a fatality or catastrophic event.11

In application, however, the framework from which all specific OSHA regulations are derived is

somewhat byzantine in nature and has, not surprisingly, continued to grow in length and

complexity during the past four (4) decades of application and enforcement.

A. The General Duty Clause

The basic duty imposed upon all employers under the OSH Act is set forth in Section 5 of

the OSH Act itself.12 Known as the “General Duty Clause,” Sec. 5(a)(1) provides, in relevant

part: “Each employer shall furnish to each of his employees employment and a place of

employment which are free from recognized hazards that are causing or are likely to cause death

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or serious physical harm to his employees.”13 This basic requirement serves as the foundation

upon which all supporting regulations are based.

B. Title 29, Code of Federal Regulations

In order to effectuate the application of this general duty placed upon employers to

provide all employees with a workplace free from recognized hazards and conditions likely to

cause death or serious injury regardless of industry or type of employment, specific standards

applicable to particular tasks and industries are set forth in Title 29, Subtitle B, Chapter XVII of

the Code of Federal Regulations. Of particular interest are the following safety standards

applicable to certain industries:

• 29 CFR 1910 – General Safety Standards

• 29 CFR 1915 – Maritime Standards for Shipyard Employment

• 29 CFR 1917 – Standards for Marine Terminals

• 29 CFR 1917 – Safety and Health Regulations for Longshoring

• 29 CFR 1926 – Construction Safety Standards

• 29 CFR 1928 – Agriculture

As can be gleaned from this general list, Title 29 contains literally thousands of

individual, specific standards applicable to virtually all types of employment scenarios and tasks

undertaken. Although a comprehensive review of the intricacies of Title 29 is well beyond the

purpose and scope of this paper, reference to certain often-cited standards reveals obvious areas

of focus and attention in many OSHA inspections and enforcement proceedings. The OSHA

frequently cited “Top 10” list:

• 1926.451 – General Requirements for Scaffolding.

• 1926.501 – Employer’s Duty to Have Fall Protection Systems.

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• 1910.1200 – Hazard Communication Concerning Chemicals (MSDS).

• 1910.134 – Employer’s Duty to Provide Respiratory Protection.

• 1910.147 – Control of Hazardous Energy (Lockout/Tagout Procedures).

• 1910.305 – Electrical Wiring Methods, Components and Equipment.

• 1910.178 – Powered Industrial Trucks (Forklifts).

• 1926.1053 – Standards Governing Use of Ladders.

• 1910.303 – General Electrical Requirements.

• 1910.212 – General Requirements for Machine Guarding.

III. ENFORCEMENT: THE OSHA INSPECTION PROCESS.

The OSHA inspection process constitutes the front line for enforcement of the workplace

and worker safety requirements established by the OSH Act and the myriad supporting

regulations.14 Conducted by OSHA Compliance and Safety Health Officers (“CSHO”), OSHA

workplace inspections are typically unscheduled inspections and can cover all aspects of OSH

Act compliance.

A. OSH Act, Section 8

Section 8(a) of the OSH Act sets forth the general grant of authority to conduct

workplace inspections:

In order to carry out the purposes of this Act, the Secretary, upon presenting appropriate credentials to the owner …, is authorized to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed …; and to inspect and

investigate during regular working hours and at other reasonable times, and within

reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer … or employee.15

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As suggested by Section 8(a), virtually all OSHA workplace inspections are unscheduled

inspections performed without advance notice provided to the employer. In fact, the OSH Act

and Title 29 expressly provide for civil fines and penalties for providing advanced notice of a

routine inspection.16 Only where an imminent danger is reported, when a fatality or catastrophe

occurs or where advanced scheduling is necessary to assure the presence of necessary employee

and employer representatives may advanced notice of inspections be provided.

B. Categories of Inspections

Generally, OSHA workplace inspections fall within three (3) broad groups:

programmed, unprogrammed and mandatory. “Programmed” inspections are those inspections

conducted randomly as a part of an OSHA National or Regional Emphasis Program (“NEP”).

“Unprogrammed” inspections, in contrast, are those inspections conducted specifically in

response to a complaint or imminent danger situation. “Mandatory” inspections are those arising

from a reported fatality17 or catastrophe, as defined under the Act, 18 in which instance the

employer is required to make formal notification to OSHA.19 Programmed, unprogrammed or

mandatory inspections can be either partial in nature, where the inspection is focused on one or a

few specific hazards or conditions, or comprehensive in nature, providing the CSHO relatively

unfettered access to all potentially hazardous conditions or practices that may occur at the

workplace.

C. Legal Basis for Inspections

Significantly, although Section 8(a) of the OSH Act provides that CSHO’s are authorized

“to enter without delay …” any workplace or site for the purpose of conducting an inspection,

such authority is ultimately subject to the Fourth Amendment of the United States Constitution

providing protection against unreasonable searches and seizures. Every employer has the

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Constitutionally-protected right to refuse entry and access to any CSHO for an unscheduled

inspection absent a properly authorized search warrant.20 This limitation is subject, however, to

the same Constitutionally-based exceptions to the warrant requirement as seen in criminal

procedure, such as consent, the open and obvious doctrine, or the existence of exigent

circumstances.21 The exclusionary rule is likewise applicable.22

D. Inspection Procedure

The OSH Act further provides basic requirements and safeguards that CSHO’s must

follow when conducting a workplace inspection. Specifically, before commencement of a

workplace inspection the CSHO must present his or her credentials, explain the nature and

purpose of the inspection, define the scope of the intended inspection, and must provide the

employer an opportunity to designate a representative to accompany the CSHO during the

inspection process.23 Likewise, every workplace inspection must be concluded with a closing

conference, during which the CSHO must provide the employer with a basic explanation of

violations observed and possible abatement scenarios regarding such violations. 24 These

requirements are absolute, providing the CSHO with no discretion to proceed otherwise.

Beyond these basic requirements, however, the remainder of the inspection procedure is

left largely to the discretion of the CSHO. For example, the CSHO may photograph or video any

relevant conditions or hazards observed during the inspection, may conduct interviews with

affected personnel and may otherwise “employ other reasonable investigative techniques …” to

fulfill the intended purpose of the inspection at hand.25 Such discretion also includes the right to

examine the employer’s recordkeeping required under the OSH Act and related Title 29

regulations, such as the required occupational illness and injury documentation26 and written

safety plans, where applicable.27

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IV. ENFORCEMENT: OSHA CITATIONS, PENALTIES AND PROCEDURE.

Upon conclusion of a workplace inspection and where violations are noted, the CSHO

will make recommendations to the Area Director concerning enforcement of any applicable

regulations through issuance of a Citation and Notification of Penalty.28

A. The Citation and Notification of Penalty

Issued pursuant to OSH Act, Section 9, the Citation and Notification of Penalty

(“Citation”) serves as legally operative notice to an employer of violations observed during the

course of a workplace inspection and resulting penalties assessed. The Citation must address,

“with reasonable particularity …,” the standard(s) violated, assessment of penalty(ies),

abatement requirements and deadlines and the particular requirements for posting of such

Citations at the workplace.29 A Citation, if issued, must be served upon the employer within six

(6) months of the time of inspection.30

B. Categorization of Violations and Available Penalties

As a result of any violations cited, OSHA may assess penalties against the employer

pursuant to Section 17 of the OSH Act. 31 Such penalties are based upon several factors,

including the seriousness of the violation, the size of the business, the employer’s history of

violations and the employer’s demonstration of a good faith commitment to workplace and

worker safety during the inspection process.

Generally, violations of the OSH Act and resulting penalties can be categorized as

“standard” violations/penalties and “heightened” violations/penalties, each with varying levels of

possible fines:

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• “De Minimis” Violations: Involves a violation of standards having no direct or immediate relationship to safety or health and is associated with no civil penalty.

• “Other than Serious” Violations: Includes violations having a direct relationship to occupational safety and health, but probably would not cause death or serious physical harm. Such violations can carry civil penalties up to $7,000 per violation.32

• “Serious” Violations: Includes violations having “a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.”33 Serious violations can carry civil penalties up to $7,000 per violation.34

Violations subject to heightened penalties include:

• “Failure to Abate” Violation: Invoked where a Citation has previously issued and the employer has failed to correct cited violation(s), carrying civil penalties up to $7,000 per day.35

• “Repeat” Violation: A violation of a standard, regulation, rule or order where an identical or substantially similar violation has been previously cited and deemed final within last five (5) years. Such violations can result in civil penalties up to $70,000 per violation.36

• “Willful” Violation: A violation knowingly or intentionally committed, exhibiting plain indifference to law, where employer has knowledge of violation or hazardous conditions but makes no reasonable efforts to eliminate hazard or condition. Such violations may carry civil penalties up to $70,000 per violation. Significantly, where a “willful” violation results in fatality, criminal sanctions may be imposed up to one year in prison and a $20,000 fine.37

• “Egregious” Violation: In certain instances, the civil penalties described above can be assessed per employee exposed as opposed to per violation.

C. The Informal Conference

Within fifteen (15) working days of the issuance of a Citation, the employer and/or

affected employee may request an “Informal Conference” with the issuing Area Director.38

While the stated purpose of the Informal Conference is simply to afford an employer or affected

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employee an opportunity to discuss the Citation, the Informal Conference often serves as the

single best opportunity to conduct a candid review of the entire inspection and enforcement

procedure and to negotiate a possible settlement of cited violations.

The benefits of preparing for and engaging in a meaningful Informal Conference cannot

be overstated. Specifically, the Informal Conference, if properly conducted from the employer’s

perspective, offers the only chance during the enforcement process for the employer to interact

with the issuing OSHA Area Director in a non-adversarial fashion and to gain critical insight into

the specific grounds for the cited violations, applicable standards and regulations and appraisal of

the factors considered in categorizing the nature of the violation and calculating the penalties

assessed. Additionally, issues concerning abatement measures and deadlines should be

considered during the Informal Conference, which can often ameliorate the necessity of pursuing

a Petition for Modification of Abatement at a later date.39

The Informal Conference offers the employer the perfect opportunity to raise issues

concerning categorization of the noted violations and the applicability of the cited standard. For

instance, in the event an issued Citation includes a noted violation of the General Duty Clause40

but a specifically defined standard under Title 29 of the Code of Federal Regulations more

closely relates to the identified hazard or condition, the Informal Conference provides the

employer an opportunity to negotiate amendment of the Citation to include reference to the

specific standard as opposed to the General Duty Clause. Such an amendment can also serve as

the first step in negotiating a reduced categorization of the violation and assessed penalties as, by

definition, a General Duty Clause can only be categorized as a “serious” violation, whereas a

violation of a specific standard can be categorized as a lesser violation, such as “other than

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serious.” This, in turn, can result in reduced penalties and preclude the potential for subsequent

“repeat” violations.

Thus, when properly conducted from the employer’s perspective, the Informal

Conference can serve as a critical step in obtaining a mutually-acceptable resolution to the

Citation, associated penalties and abatement requirements.

D. Contesting a Citation

In the event an agreed settlement of the Citation and associated penalties is not reached

during the informal conference, the employer must choose how to proceed with respect to the

Citation: 1.) Accept the Citation, pay the assessed penalties and comply with all mandated

abatement requirements; or 2.) contest the Citation before the Occupational Safety and Health

Review Commission (“OSHRC”).

In the event the employer chooses to contest the Citation, the employer must serve a

Notice of Contest upon the issuing Area Director within fifteen (15) working days of receipt of

the Citation.41 Service of the Notice of Contest commences the formal contest procedure before

the OSHRC and operates the stay the required abatement period specified in the Citation.

Significantly, the deadline for service of a Notice of Contest is jurisdictional in nature in

that it may not be extended and must be met in order to initiate the formal contest procedure.42

Additionally, participation in an informal conference does not stay the fifteen (15) working day

Notice of Contest deadline.43

In the alternative and as referenced above, a Petition for Modification of Abatement may

be served upon the issuing Area Director should the employer choose only to contest the

required abatement procedures specified in the Citation.44 The Petition for Modification of

Abatement must be filed “no later than the close of the next working day following the date on

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which abatement was originally required.”45 Unlike the Notice of Contest, which places the

burden of proof upon the Secretary of Labor with respect to the cited violations and assessed

penalties, the Petition for Modification of Abatement requires the employer to carry the burden

of proof in establishing that, although it has made a good faith effort at abatement, such

abatement has not been completed due to factors beyond the employer’s reasonable control. The

Petition should specify the steps taken, the reasons why additional time is needed to complete

abatement, and the interim steps taken to safeguard employees.46

E. Contest Procedure

Upon service of a Notice of Contest, all proceedings will occur before the OSHRC,

which typically assigns the contest to an Administrative Law Judge for hearing. While

evidentiary concerns are addressed pursuant to the Federal Rules of Evidence, procedural matters

are governed exclusively by the OSHRC Rules of Procedure.47

Within twenty (20) days of service of the Notice of Contest, the Secretary of Labor,

through the Solicitor’s Office, must file a complaint setting forth all alleged violations and

proposed penalties contested and must “state with particularity” the basis for jurisdiction, the

“time, location, place and circumstances of each such alleged violation,” and “the considerations

upon which the period of abatement and the proposed penalty of each such alleged violation are

based.”48 Similarly, the employer is then required, within twenty (20) days after service of the

complaint, to file an answer containing “a short and plain statement denying allegations in the

complaint which the party intends to contest,” as well as “all affirmative defenses being

asserted.”49

As with any typical legal proceeding, the parties may then engage in the discovery

process concerning the claims at issue, 50 at the conclusion of which the ALJ will hold an

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evidentiary hearing and will issue a written decision.51 Upon contest, the Secretary of Labor has

the burden to prove the following basic elements: 1.) Applicability of cited standard; 2.)

Employer’s non-compliance with standard and feasible abatement means; 3.) Employee access to

violative condition; and 4.) Employer’s actual or constructive knowledge of violation. 52

Discretionary review of the ALJ’s decision may be provided by the three (3) judge Commission

or, if denied, may proceed in the United States Court of Appeals for the Circuit in which the

violation(s) occurred.53

F. Affirmative Defenses

As noted above, the employer bears the burden to specifically plead and prove any

applicable affirmative defenses to the contested violations and penalties. While all available

affirmative defenses are not specifically enumerated by the OSHRC Rules and include all such

defenses available under the law, several affirmative defenses are particularly relevant to

OSHRC proceedings:

• Isolated Employee Misconduct: In support of this defense, the employer must generally prove it had in a place an adequate plan for training and supervision of its employees with specific instructions as to the cited hazard and/or condition, yet the cited hazard and/or condition was the result of employee misconduct occurring without the employer’s knowledge.

• Impossibility/Greater Hazard: In support of this defense, the employer must generally prove compliance with specific requirements would have been functionally impossible or would have precluded the task at issue and no alternative means for addressing the cited hazard and/or condition were available.

• Infeasibility of Abatement: In support of this defense, the employer must generally prove the means of compliance would have been infeasible or necessary work would be infeasible after compliance, and that alternative means to address the cited hazard and/or condition were utilized or that no other feasible alternative means existed.

• Multi-Party Citation Policy: Often applicable in contractor/subcontractor or borrowed servant scenarios, the employer must generally prove it did not cause or have control over the cited hazard and/or condition but otherwise took reasonable steps to notify the causing party and to protect its employees.

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V. PRACTICAL SUGGESTIONS FOR WORKING WITH OSHA.

As should be readily apparent from above, the OSHA inspection and enforcement

process and related procedures can quickly become a dangerous quagmire for the uninitiated and

unprepared. To that end, the following practical suggestions for working with OSHA during the

inspection and enforcement process can, if timely undertaken and enacted, lessen the strain often

associated with responding to and addressing an unannounced inquiry from the Department of

Labor.

Be Proactive and Prepare Beforehand!

1. The age-old adage that “an ounce of prevention is worth a pound of cure” is never more applicable than in making proper and timely preparations for responding to OSHA inspections and Citations.

2. Create an OSHA Response Team:

a. Delegate responsibilities amongst company Safety Representatives and other trusted employees to undertake certain responsibilities critical to successfully negotiating an OSHA inspection.

b. Ideally, the OSHA Response Team should be led by Safety Representatives or management personnel with knowledge of company policies, procedures, plans and records and familiarity with OSHA inspection procedures.

c. Duties should include, but are not limited to: i. Notification of in-house or external counsel of an inspection;

ii. Install decision criterion for determining whether to require a valid warrant prior to allowing unscheduled inspection;

iii. Examine CSHO credentials, attend opening conference, and define the purpose and scope of the inspection;

iv. Accompany CSHO during the inspection, make detailed notes of inspection and take identical photographs, videos and/or samples obtained by CSHO during inspection;

v. Responsibility for document control during inspection, including production of required recordkeeping logs and written safety plans and memorialize all production.

3. Retain External Counsel:

a. Retain external counsel with experience in OSHA inspections and procedures prior to an inspection to provide training and advice for management, Safety Representatives and other personnel.

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b. Timely notification of external counsel following a fatality, catastrophe or imminent danger situation and in anticipation of subsequent litigation can effectively shield much of any investigation under the attorney work product privilege.

4. Maintain and Systematically Update Required Recordkeeping:

a. Maintain updated material safety data sheets (MSDS) in compliance with specific hazard communications standard requirements.

b. Ensure logs of Work-Related Injuries and Illnesses (OSHA 300), Summaries of Work-Related Injuries and Illnesses (OSHA 300A) and Injury and Illness Incident Reports (OSHA301) are properly completed and updated.

i. Work-related injuries and illnesses are those meeting one or more of the general recording criteria: Death, days away from work, restricted work, transfer to other duty, medical treatment beyond first aid, loss of consciousness, or diagnosis of significant injury or illness (e.g., chronic of irreversible disease such as silicosis, fractures, severe lacerations, etc.).

c. Where written safety plans are required pursuant to a particular standard, ensure that such plans are completed, posted and updated and that adequate training for personnel has been provided.

5. Consider implementation of an Illness and Injury Prevention Plan. a. Illness and Injury Prevention Plans (“I2P2”) are an identified focus of recent

OSHA publications and training. b. Implementation of an I2P2 can provide valuable support for proving isolated

employee misconduct and multi-party employer defenses if subsequent Citation contest is required.

c. An effective I2P2 should include: Management and Leadership responsibilities, employee participation, hazard identification and assessment, hazard prevention and control, education and training and program evaluation and improvement.

6. Take Advantage of OSHA Training and Compliance Assistance Programs:

a. Voluntary Protection Program (VPP). i. The VPP recognize employers and workers in industry and federal

agencies who have implemented effective safety and health management systems and maintain injury and illness rates below national Bureau of Labor Statistics averages for their respective industries.

ii. VPP participants are exempt from unscheduled OSHA programmed inspections while maintaining VPP status.

b. Safety and Health Achievement Recognition Program (SHARP). i. On-site consultation program for small businesses.

c. Strategic Partnership Program.

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i. Designed to encourage, assist and recognize the efforts of partners to eliminate serious workplace hazards and achieve a higher level of worker safety and health.

ii. Participants are exempt from unscheduled OSHA programmed inspections while maintaining status.

d. Alliance Programs. i. OSHA cooperation with industry groups committed to safety and

health, including trade groups, professionals, trade organizations, educational institutions to combine resources and develop compliance assistance tools.

7. Clarify OSHA Notification Requirements: a. The employer is required to notify OSHA within eight (8) hours of fatality or

catastrophe, defined as a work-related injury or illness resulting in death or in-patient hospitalization of three (3) or more employees: 1-800-321-OSHA.

b. The first and immediate priority should be to render first aid and attend to company personnel.

c. The second immediate priority should be to assess any imminent harm and address abatement of any continuing threat or hazardous condition.

d. In such a scenario, external counsel should be notified so as to attend resulting inspection and investigation and serve as designated liaison between the employer and OSHA.

Inspection Response: What to Do in the Heat of the Moment

1. Determine if warrant issued or should be required. a. Consent is always an option, but should be made on case-by-case basis as

circumstances dictate. b. Plain view and open and obvious exceptions to warrant requirement should be

considered.

2. Determine if programmed inspection or unprogrammed inspection resulting from complaint or referral.

a. If unprogrammed inspection, employer is entitled to copy of any written complaint (redacted for name complainant).

3. Demand that Safety Representative, management personnel or counsel accompany

CSHO during inspection. a. CSHO is required to allow employer representative to observe inspection. b. CSHO is required to make reasonable accommodations in delaying inspection

so that an employer representative may arrive and attend. c. Faithfully replicate every photograph, video and sample taken by CSHO

during course of the inspection.

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4. Determine if inspection to focus on safety considerations or industrial hygiene. a. Designation of appropriate an employer representative is necessary given

purpose of inspection. b. Allows the employer representative opportunity to assemble environmental

sampling equipment to replicate tests conducted by inspector.

5. Inquire as to scope of inspection. a. Carefully limit inspection to stated scope. b. Do not offer facility tour. c. Maintain an orderly inspection keeping business interests in mind: The

CSHO is required to abide by reasonable time/investigative limits.

6. Employee Interviews: a. CSHO can require that interviews with non-managerial personnel be

conducted privately. b. However, employees can request presence of counsel or employer

representative during the interview: The right to a private interview belongs solely to the employee.

c. The employer should demand an opportunity to prepare employees prior to any interview. Preparation should include admonition to tell the truth and that no retaliation can be made after the interview. Standard “deposition preparation” instructions apply: Do not volunteer information; provide short, plain answers; “I don’t know/can’t recall” are fine answers; listen carefully to questions and consider before answering; stick to the facts and refrain from speculation.

d. Employees can refuse to participate in interview, but CSHO may obtain subpoena to compel later attendance.

e. There exists no requirement that employee must sign written statement or consent to have interview videoed or recorded.

f. The employer does have a right to plan/schedule employee interviews at reasonable times for business interests.

g. The employer does have a right to protect employees and delay interviews after fatality or catastrophic event.

h. Debrief employees afterward.

7. Managerial Interviews: a. The employer is entitled to have counsel present for interviews of all

managerial personnel. b. The employer has an absolute right to prepare all managerial personnel before

an interview as managerial statements can be considered binding admissions on company.

8. Demand Trade Secret Protection where applicable.

a. OSHA required to protect confidentiality of items claimed as trade secrets.54 b. Verification of trade secrets should be done during opening conference and by

follow-up correspondence to Area Director.

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9. Limit Document Production:

a. Documents and records produced at inspection should be limited only to those itemized in warrant, where applicable.

b. Do not open company files/books for scrutiny beyond scope of inspection. c. Retain copies of all documents and records produced and memorialize those

produced. d. The employer is obligated to produce required recordkeeping documents (e.g.,

OSHA 300, 300A, 301 logs and written safety plans) at time of inspection. e. For subsequent document requests, demand that CSHO make request in

writing to counsel, conduct review of documents before production and affix document numbers (Bates labels) for ease of reference.

10. Imminent Hazards:

a. Should correct immediately. b. CSHO has no legal authority to stop/enjoin work in progress.

11. Quick Fix:

a. For hazards or conditions observed during inspection, employer can correct on the spot to demonstrate compliance and good faith.

12. Closing Conference:

a. Note violations observed by CSHO and suggested abatement. b. Do not volunteer target abatement dates until opportunity provided to conduct

further investigation. c. Correct obvious factual errors and omissions with CSHO. d. Be an advocate: Promote compliance and positive aspects of inspection and

company procedures where appropriate. e. Obtain copies of all test results completed during inspection.

Informal Conference: Take Advantage of This Important Opportunity

1. Preparation for informal conference can be the key to obtaining positive outcome.

a. Perform due diligence concerning applicable standards versus reference to General Duty Clause.

b. Research OSHRC decisions and penalty assessments in past cases involving similar violations, identified hazards or conditions.

c. Retain expert(s) where appropriate to defend against identified hazards or conditions where causation or control issues are important.

d. Evaluate factors considered in categorization of violation as “other than serious,” “serious,” “repeat” and/or “willful.”

2. Take a collaborative approach.

a. Discuss Citation and factual basis for noted violations. b. Offer suggestions for reference to specific standards.

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c. Request abatement assistance/clarification and extended deadlines. d. Offer evidence of abatement completed to show good faith. e. Request reclassification of violation to lower category. f. Negotiate assessed penalties.

VI. CONCLUSION.

As with any legal process or procedure, developing a knowledge and understanding of

the subject matter and associated procedure is a crucial first step in answering calls from the

Department of Labor regarding worker and workplace safety. Hopefully, this paper has provided

the reader with a foundation for continuing his or her study into the OSH Act, its application to

the domestic workforce and the regulatory framework defining the workplace and worker safety

standards. Perhaps most importantly, with these practical suggestions and tips in hand, the

reader’s next encounter with OSHA during the inspection and enforcement process will be a

much more positive and rewarding experience.

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1 Sinclair, Upton, The Jungle, Doubleday, Page & Company, 1906. 2 Garside, Juliette, “Child Labour Uncovered in Apple’s Supply Chain.” The Guardian 25 Jan. 2013: A1. 3 29 U.S.C. §§ 651, et seq., effective April 28, 1971. 4 29 U.S.C. § 651(b)(3); 29 U.S.C. § 651(b)(9). 5 See generally, 29 U.S.C. § 651(b). 6 29 U.S.C. § 651. 7 29 U.S.C. § 653(a). 8 29 U.S.C. § 653(b)(1). 9 Notably, the OSH Act’s application to offshore oil and gas operations can be notoriously convoluted and forms the

basis for many contested OSHA proceedings in the industry. By way of example, the OSH Act expressly does not apply to workplace hazards regulated by the United States Coast Guard. See 29 U.S.C. § 653(b)(1). However, a March 4, 1983 Memorandum of Understanding between OSHA and USCG makes a further delineation as to whether offshore workers are serving aboard an “inspected” or “uninspected” vessel: Where serving aboard an inspected vessel (as defined by 46 U.S.C. § 3301, including passenger, tank, cargo and special purpose vessels), the USCG regulates all working conditions; whereas OSHA regulations apply to working conditions on uninspected vessels (all non-recreational vessels not specified in 46 U.S.C. § 3301). See Chao v. Mallard Bay

Drilling, Inc., 534 U.S. 235 (2002). Thus, the oil and gas operator must carefully analyze all relevant regulations and available resources in making a final determination as to the applicability of the OSH Act or other Federal regulation.

10 29 U.S.C. § 655. 11 See generally 29 CFR 1910. 12 29 U.S.C. § 654. 13 29 U.S.C. § 654(a)(1). 14 According to OSHA’s “Commonly Used Statistics” website, more than 92,000 OSHA Federal and state program

administered inspections occurred in 2011. http://www.osha.gov/oshstats/commonstats.html 15 29 U.S.C. § 657(a) (emphasis added). 16 See 29 U.S.C. § 666(f) (providing penalties for providing advanced notice of inspection); see also 29 CFR 1903.3;

29 CFR 1903.6. 17 The OSHA Field Operations Manual (“FOM”) defines a “fatality” as “[a]n employee death resulting from a work-

related incident or exposure; in general, from an accident or illness caused by or related to a workplace hazard.” Field Operations Manual, Directive Number CPL-02-00-150, April 22, 2011, at 11-6.

18 The FOM defines a “catastrophe” as “[t]he hospitalization of three or more employees resulting from a work

related accident; in general, from an accident or illness caused by a workplace hazard.” Field Operations Manual, Directive Number CPL-02-00-150, April 22, 2011, at 11-6.

19 29 CFR 1904.39 (“Within eight (8) hours after the death of any employee from a work-related incident or the in-

patient hospitalization of three or more employees as a result of a work-related incident, you must orally report the fatality/multiple hospitalization by telephone or in person to the Area Office of the Occupational Safety and

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Health Administration (OSHA), U.S. Department of Labor, that is nearest to the site of the incident. You may also use the OSHA toll-free central telephone number, 1-800-321-OSHA (1-800-321-6742)).”

20 See, e.g., 29 CFR 1903.4 recognizing OSHA’s ability to obtain, ex parte, a search warrant in order to conduct

unscheduled inspections. Furthermore, OSHA may issue subpoenas or other compulsory process to obtain documents and tangible things. See 29 U.S.C. § 657(b).

21 See Marshall v. Barlow’s, Inc., 436 U.S. 307 (1982). 22 The United States Court of Appeals for the Fifth Circuit has held in past that the exclusionary rule does not apply

to proceedings correcting violations, but does apply to OSHA proceedings to punish past violations (e.g., can compel employer to correct violation but cannot issue citation). See Smith Steel Casing Co. v. Brock, 800 F.2d 1329 (5th Cir. 1986).

23 See 29 CFR 1903.7(a); 29 CFR 1903.8(a). 24 See 29 CFR 1903.7(e). 25 See 29 CFR 1903.7(b); see also 29 U.S.C. § 657(a)(2) and 29 CFR 1903.10 regarding interviews with employees. 26 See generally 29 CFR 1904.4 requiring completion of records concerning work-related fatalities, injuries and

illnesses, commonly referred to as an “OSHA 300 Log”; see also 29 CFR 1904.32 requiring completion of an annual summary of work-related fatalities, injuries and illnesses, commonly referred to as an “OSHA 300A Log.”

27 See, e.g., requirement for written safety plans for hazardous conditions concerning bloodborne pathogens 29 CFR

1910.1030(c); hazard communication 29 CFR 1910.1200(e); lockout/tagout energy control procedures 29 CFR 1910.147(c)(4); respiratory protection 29 CFR 1910.134(c)(1); personal protective equipment 29 CFR 1910.132(d); emergency action plan 29 CFR 1910.38(b); permit-required confined spaces 29 CFR 1910.146(c)(4); and fire prevention plans 29 CFR 1910.39(b).

28 See 29 U.S.C. § 658. 29 29 U.S.C. § 658(a). 30 29 U.S.C. § 658(c). 31 See generally 29 U.S.C. § 666. 32 29 U.S.C. § 666(c). 33 29 U.S.C. § 666(k). 34 29 U.S.C. § 666(b). 35 29 U.S.C. § 666(d). 36 29 U.S.C. § 666(a). 37 29 U.S.C. § 666(e). 38 29 CFR 1903.20. 39 29 CFR 1903.14a; see also OSHRC RULE OF PROCEDURE 2200.37. 40 29 U.S.C. § 654(a)(1).

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41 29 U.S.C. § 659(a); 29 CFR 1903.17(a); see also OSHRC RULE OF PROCEDURE 2200.33. 42 Id. 43 29 CFR 1903.20. 44 29 CFR 1903.14a. 45 29 CFR 1903.14a(c). 46 29 CFR 1903.14a(b). 47 The OSHRC Rules of Procedure are codified at 29 CFR, Parts 2202 and 2204. 48 OSHRC RULE OF PROCEDURE 2200.34(a). 49 OSHRC RULE OF PROCEDURE 2200.34(b). 50 See generally OSHRC RULE OF PROCEDURE 2200.52. 51 See generally OSHRC RULE OF PROCEDURE 2200.90. 52 See, e.g., Safeway, Inc. v. OSHRC, 382 F.3d 1189 (10th Cir. 2004); Caterpillar Inc. v. OSHRC, 122 F.3d 437, 440

(7th Cir. 1997). 53 OSHRC RULE OF PROCEDURE 2200.91. 54 29 USC § 664; 29 CFR 1903.9.

Kenneth Wayne Bullock IISenior Counsel

Houston

1200 Smith Street

14th Floor

Houston, TX 77002-4310

Tel: 713.654.9637

Fax: 713.658.2553

ken.bullock@chamberlainlaw.comwww.chamberlainlaw.com

Practice Areas

Admiralty & Maritime

Energy and Maritime

Construction Law

Litigation

Education

Centre College, Danville,

Kentucky. B.S., 1998.

Texas A&M University,

College Station, Texas.

Master of Agri-Business,

2001, with honors.

South Texas College of

Law, Houston, Texas.

Juris Doctorate, 2006,

cum laude, Order of

Lytae

Honors

“Texas Rising Star” by

Texas Monthly Magazine

– publisher of Texas

Super Lawyers (2012,

2013)

Order of Lytae and Phi

Delta Phi Legal Honors

Fraternity, South Texas

College of Law.

President, Federalist

Society Student Chapter,

South Texas College of

Law.

Officer, Board of

Advocates, South Texas

College of Law.

Born in Lexington, Kentucky, Ken earned his

Bachelor of Science degree in Biology from Centre College in June, 1998. Ken then

attended Texas A&M University where he earned a Masters degree in Agri-Business

in May, 2001, graduating second in his class. Ken was also selected for membership

in the Phi Kappa Phi and Gamma Sigma Delta Honor Societies during his graduate

studies at Texas A&M. Ken then attended South Texas College of Law in Houston,

Texas, where he graduated cum laude and as a member of the Order of Lytae in May,

2006. During law school, Ken was a Director of the South Texas College of Law Board

of Advocates, President of the Federalist Society Law Student Chapter and member

of the Phi Delta Phi Legal Honors Society.

Bullock’s practice focuses primarily on energy and maritime matters, where he has

wide-ranging experience in representing upstream and midstream entities, including

drilling and exploration companies, pipeline operators, heavy construction companies,

supply vessel owners and seismic/geophysical operators in commercial, personal

injury and toxic tort litigation in state and federal court under Texas, Louisiana and

Maritime law, as well as the Outer Continental Shelf Lands Act (“OCSLA”) and

Longshore & Harbor Workers’ Compensation Act (“LHWCA”). Ken also counsels

clients in various corporate and transactional matters, and practices in commercial

litigation with an emphasis in construction, complex business litigation and first and

third party insurance claims.

Ken is a member of the State Bar of Texas and is admitted to practice before the

Southern and Eastern Districts of Texas and the United States Court of Appeals for

the Fifth Circuit. Ken is also an active member of the Garland Walker American Inn of

Court, the Houston Federalist Society and the Houston Young Lawyers Association.

Representative Matters

Represented numerous energy exploration and drilling clients throughout Texas,

Louisiana and Mississippi against claims under the Jones Act, Outer Continental

Shelf Lands Act ("OCSLA") and 905(b) of the Longshore and Harbor Workers'

Compensation Act ("LHWCA").

Phi Kappa Phi and Gamma

Sigma Delta Honor

Societies, Texas A&M

University.

Guest Lecturer, Agricultural

Economics and Food &

Agricultural Sales, Texas

A&M University.

Executive Board Member,

Sigma Alpha Epsilon

Fraternity, Centre College

Bar Admissions

Texas

Court Admissions

United States District Court

for the Eastern District of

Texas

United States District Court

for the Southern District of

Texas

United States Court of

Appeals for the Fifth Circuit

Clerkships

Hon. Kent Sullivan, 80th

Judicial District Court,

Harris County, Texas

Counseled clients regarding drafting of defense and indemnity provisions in various

energy and construction-related contracts and transactions.

Represented various clients in marine construction, construction defect, maritime

contract and maritime tort litigation.

Won dismissal of Jones Act claims for energy exploration and drilling clients based

upon lack of vessel status of deepwater floating gas production, drilling and

quarters platform. (slip copy: 2011 WL 3021043)

Represented ship building, fabrication and heavy construction facility in

multi-phased litigation regarding alleged defects in construction of offshore drilling

platform.

Represented maritime client in action for damages sustained to wharfage and pier

structures.

Counseled maritime construction and fabrication client regarding construction lien

practices in connection with construction and modification of offshore structures.

Successfully prosecuted claim for hull and loss of use/profits damages on behalf of

maritime client resulting from vessel allision.

Represented international pipeline company in catastrophic injury litigation following

pipeline installation accident.

Achieved complete dismissal of claims in wrongful death lawsuit brought by

seaman's survivors under the Jones Act.

Successfully represented maritime client in achieving favorable settlement in

wrongful death and survival claim litigation following accident in the Houston Ship

Channel.

Represented numerous clients in premises liability and Jones Act toxic tort litigation

in connection with alleged fume and chemical exposure claims.

Represented energy exploration and drilling company in litigation arising from fatal

accident occurring in territorial waters of Angola.

Counseled numerous clients in vessel lease agreements and drafting of charter

party agreements.

Counseled international maritime client regarding manning requirements and

immigration issues under OCSLA.

Represented freight forwarder in contact, quantum meruit and promissory estoppel

litigation.

Kenneth Wayne Bullock II, Continued

Counseled and represented client in environmental permitting process under Texas Clean Water Act and Comprehensive

Environmental Response, Compensation and Liability Act ("CERCLA").

Counseled client in partnership dissolution procedure and drafting of dissolution agreement.

Counseled client in share buyback and purchase transaction and drafting of buyback agreement.

Publications, Seminars and Presentations

"Premiums and Risk Management in the Post-Macondo Era." Offshore Magazine, February 2013

“Brief Overview of Indemnity Provisions and Allocation of Risk in Energy Agreements.” Texas Lawyer In-House Counsel Summit

Presentation and Paper, May 17, 2012.

"What do You Mean They Can Have my E-Mails? And my Text Messages? And my …. Electronically Stored Information and the

Revised Federal Rules of Civil Procedure." Houston Claims Association CLE Presentation and Paper, 2007.

Libertarian Paternalism: The Cocaine Vaccine as a Test Case for the Sunstein/Thaler Model, 3 Rutgers J.L. & Urban Pol 'y 1 (2005)

(research assistant to author Professor Dru Stevenson).

News

Houston-based Chamberlain Hrdlicka Attorneys Recognized as 2013 Texas Rising Stars

Houston-based Chamberlain Hrdlicka Attorneys Recognized as 2012 Texas Rising Stars

Professional Affiliations

Texas Bar Association

State Bar of Texas Oil, Gas & Energy Resources Law Section.

State Bar of Texas Construction Law Section.

State Bar of Texas Litigation Section.

Houston Young Lawyers Association

Houston Young Lawyers Foundation

Texas Young Lawyers Association

American Inns of Court, Garland Walker Inn

Kenneth Wayne Bullock II, Continued