OSHA 101: A PRIMER - Ogletree DeakinsWhen an OSHA Compliance Officer (“CSHO”) arrives at your...

2019 WORKPLACE SAFETY SYMPOSIUM

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 1-1

OSHA 101: A PRIMER

Tom Pritchett – Universal Recycling Technologies, LLC

William S. Rutchow – Ogletree Deakins (Nashville)

Karen F. Tynan – Ogletree Deakins (Sacramento)



INTRODUCTION

Every company cares about safety and health in the workplace. No company wants

anyone to become ill or get hurt. Companies invest substantial time, effort and money in trying

to achieve safe and healthful operations. They would do this without regard to government

regulation. However, managing compliance with federal and state OSHA requirements is an

integral part of managing safety in this day and age.

When an OSHA Compliance Officer (“CSHO”) arrives at your workplace, you could

think of the event as a visit, an inspection, an audit or an investigation. It is almost always an

enforcement event and therefore more than a visit. You could call it an inspection if the agency

confines its activities to just looking at conditions to determine compliance. You could call it an

audit, if the CSHO is just looking at your injury log and comparing it with your records of

accidents. But it is best to recognize that most OSHA events are actually investigations.

In an investigation, there is not only a review of onsite conditions or records, but also a

concentrated effort to unearth information from the past as well as the present. This is done

partially through observation and casual questioning regarding conditions, but more importantly,

it is done through in-depth examination of documents and utilization of private one-on-one

interview techniques with witnesses, including both hourly and supervisory personnel. When

these law enforcement investigative techniques are used by OSHA, the company is at a serious

disadvantage. The CSHO is a professional investigator. The company is not.

It is in every company’s interest not only to be safe, but also to have a good safety

compliance record. It is also in every company’s interest that it not be subjected to unfair

investigative techniques and that factual findings by OSHA are not based on inappropriate

speculation. It is important to safeguard the company’s interest in all types of OSHA events.

Many companies receive regular OSHA inspections. Many companies never get inspected. All

companies have continuing affirmative obligations and all are potentially subject to investigation

by OSHA at any time.

Inspections and investigations by OSHA are initiated for any number of reasons. If a

CSHO is at your door, you need to know, first of all: Why? The answer to that question can

significantly affect how you respond. If there has been a fatal accident or other reported incident,

of course, you know why an investigation is being initiated.

A fatal accident is the worst thing that can happen in the workplace. It affects every

employee. One minute everything is fine and no one can imagine that something terrible is about

to happen. The next minute, everyone on the property is in shock. The unimaginable has

happened. Not only is the event emotionally devastating, it throws the company immediately into

a legal morass.

Company officials need to be prepared to respond to serious situations that they hope will

never happen. They need to be prepared and then hope that their preparations are merely

“insurance” – that their plans will never have to be implemented. Accidents and all other

circumstances that prompt OSHA investigations must be planned for ahead of time so that the

company will know what to do immediately in dealing with the unexpected.



No OSHA inspection is routine. Agency investigations and audits can give rise to very

serious legal consequences. Civil penalties can be extremely costly. Even criminal prosecutions

are a possibility in extreme circumstances – and you never know what is extreme until the facts

are uncovered during investigation. Accidents can give rise to civil liability, and can raise

potentially complicated workers’ compensation and insurance issues, as well as lead to

regulatory liability. All inspections conducted by OSHA can have an impact on workforce

morale and can result in major sanctions against the company.

Our goal in these written materials is to provide supplemental information, which will be

beneficial later. Accordingly, we have included materials, which we believe meet that goal,

including FAQs.

OSHA RECORDS REQUESTS

In every investigation, OSHA is likely to request a wide variety of records, including

OSHA 300 logs and records related to many OSHA programs, such as hazard communication,

lockout/tagout, emergency evacuation and personal protective equipment.

Before and during an OSHA inspection, employers should implement the following:

1. Routinely review logged cases carefully, scrutinizing all supporting documentation

and justifying the conclusion against the most current regulations and guidance.

2. Maintain up-to-date training of all involved personnel and maintain detailed training

records; occasionally challenge record keepers and other involved personnel to ensure

a high standard of knowledge and practice.

3. Conduct your own independent audit of logs in the same manner OSHA would do in

an audit: generate entries from a sufficiently large selection of employees, review all

records and compare to actual log. Do not overlook records that might exist in other

areas of the business, such as in risk management. If a concerning number or quality

of discrepancies exist, a more thorough evaluation should follow, possibly with the

help of counsel and/or an outside vendor specializing in identifying and assisting in

these compliance issues.

4. Correct all deficiencies and ensure training is up to date and thorough.

5. Keep in mind that internally generated audits as well as ordinary outside audits are

most likely to be discoverable by OSHA, and could become evidence in a court

proceeding.

6. Particularly where there may be concerns regarding compliance, an audit can be

performed in connection with legal advice, covered by the attorney-client privilege,

with the goal of keeping the results confidential.



7. Keep records separately maintained, so that when OSHA asks to review the required

records, OSHA is not immediately presented with the supporting documentation as

well, even though it had not been requested.

Then, during and after the inspection, here are some considerations in responding to

records requests:

1. Generally, it is not recommended that the employer volunteer records which have not

been requested.

2. Records, which are specifically required to be created and maintained by the OSHA

regulations (such as OSHA 300 logs) generally, should be provided when requested.

Documents requested which are required records under the recordkeeping rule must

be provided within four hours.

3. Documents, which are not specifically required to be created and maintained by the

OSHA regulations generally, should not be provided until after careful review and

consideration with the assistance of counsel.

4. Legal counsel should be involved as soon as possible, if a subpoena is served for

documents or testimony.

5. When documents not legally required to be maintained are requested, the employer

should ask OSHA to provide a written list of all items requested. An undisputed

record of what has been requested should be made, with clear indication of where and

how the production is to occur.

6. The request should be reviewed carefully internally and with assistance of legal

counsel for possible objections (unduly burdensome, irrelevant, privileged,) or other

considerations (alternative means may be available to provide needed information,

additional time or resources may be required).

7. Review all documents for accuracy; correct or supplement where appropriate.

8. No personal medical information should be shared with OSHA absent an MAO. The

MAO should be reviewed for accuracy or overbreadth. The employer should observe

any limitations in the MAO and ensure that OSHA remains within its bounds. Social

Security numbers should not be provided in absent legitimate authority for OSHA to

receive them.

9. Attend to any trade secret or other confidentiality issues before providing documents.

10. Keep a copy of all documents produced.



FREQUENTLY ASKED QUESTIONS ABOUT OSHA INSPECTIONS

In 28 states, OSHA inspections of private employers are conducted by compliance

officers of the U.S. Department of Labor’s Occupational Safety and Health Administration.

OSHA also conducts inspections in maritime, shipping and longshoring industries that operate in

U.S. navigable waters as well as inspections of contractors working at federal installations. In

the remaining states, OSHA inspections are conducted by compliance officers of a designated

“state plan” government agency, under the general oversight of Federal OSHA. These FAQs

apply to handling OSHA inspections conducted by Federal OSHA and state plans.

1. What types of investigations can I expect?

There are five types of OSHA inspections:

Programmed Inspections – OSHA generally conducts these inspections of

facilities on a random basis within industry sectors. Programmed inspections

may be part of a special or local emphasis program, or conducted to follow up

on a priority enforcement case under Federal OSHA’s Enhanced Enforcement

Policy.

Complaints – OSHA is required to follow up on complaints filed by

employees or other concerned parties. Complaints can be submitted to OSHA

in person or by phone, fax, mail, or through the agency’s internet site.

Referral – OSHA sometimes conducts a “referral” inspection following

receipt of information from another federal or state agency, a union, any non-

employee, or based upon media coverage of an accident or other event.

Imminent Danger – OSHA conducts an on-site investigation whenever it

receives a report of imminent danger (an immediate threat that an employee

will suffer death or serious physical harm).

Fatality/Catastrophe (FAT/CAT) – OSHA conducts an inspection following a

workplace accident resulting in the death of an employee or the in-patient

hospitalization of an employee, amputation or loss of an eye.

2. Will I receive advanced notice of an OSHA inspection?

No. To conduct an on-site inspection, the assigned OSHA compliance officer

appears at the facility without giving prior notice to the company.

3. What will be the scope of the inspection?

On-site inspections can be comprehensive (“wall-to-wall”) or partial in scope.

Programmed inspections are usually comprehensive in scope. A partial

inspection may result from a complaint, a report of a fatality or

hospitalization, a special or local emphasis program, or an Enhanced



Enforcement Policy follow-up inspection. When a partial inspection reveals

significant safety and health violations, the compliance officer can expand the

scope of his inquiry and conduct a comprehensive inspection (with the

concurrence of the OSHA area director).

4. What happens at the Opening Conference?

At the start of the inspection, the CSHO typically holds an opening conference

to discuss why he is there and the steps he expects to take in conducting the

inspection. The company is free to designate which management employees

participate in the opening conference. The top-level manager on site should

attend, since this helps to demonstrate the company’s commitment to health

and safety. Other local personnel can also participate, but it is best to keep the

number of participants manageable.

5. What else should you be doing while the Opening Conference is taking place?

While the opening conference is taking place, management should ensure that

someone makes any special arrangements necessary for allowing the CSHO to

do his job. For example, if an all-employee meeting is scheduled to be held in

the department where a CSHO must conduct employee interviews, consider

rescheduling the meeting so the compliance officer can do his job without

delay. Also, if possible, make sure that a digital camera is available for use by

a member of management to take photographs from the same vantage point as

any photographs that the compliance officer may take. A member of the safety

team should also walk the “path” the CSHO is likely to take during the

inspection to ensure there are no open or obvious hazards present (and all

required posters are posted).

6. What should an employer do during the CSHO’s walk around?

One or more management representatives must accompany the CSHO at all

times when he is present in the facility. Having two management

representatives present will allow one of them to concentrate on the

conducting of the inspection and answering the CSHO’s questions, while the

other takes notes and photographs and contacts other personnel as needed.

These management representatives will also be tasked with monitoring the

scope of the inspection to ensure that it remains within the scope previously

discussed with the CSHO, as appropriate.

As a general rule, the compliance officer should be provided with the

opportunity to visit any part of the facility that is necessary given the scope of

the inspection. Ensure that the compliance officer is aware of and complies

with the company’s safety rules (use of PPE, no eating of product in

production areas, etc.).



7. What are the employer’s rights during interviews?

The CSHO will want to talk to various employees during the walk-around and

may want to formally interview some of those employees. The employer can

insist that any questioning during a walk-around not interfere with normal

production operations. The company has the right to have a representative

present during interviews of management employees. That representative

should be legal counsel, another member of management or some other

company representative designated by management. Having a third person

present can help ensure that no miscommunication takes place due to leading

or unclear questions, and can keep the person being interviewed from feeling

intimidated.

The CSHO will also seek to interview one or more hourly employees. These

interviews are generally conducted in private, unless the employee requests a

supervisor or other member of management to be present. If an hourly

employee makes such a request, management should work with the CSHO to

honor that request.

8. Can the CSHO take photographs or videos?

Yes. The CSHO may take photographs, and perhaps video, during the walk-

around. Management should use a digital camera (if available) to duplicate

these photographs, and a video recorder to duplicate footage as the CSHO is

taking her video, matching the location and angle of view as closely as

possible. Management personnel may also want to take some additional

photos to help ensure that the photos taken are representative of the area or

process in question. Management must be sure to keep track of the photos that

replicate OSHA’s photos. Further, management personnel accompanying the

CSHO must be sure to tell the CSHO when she is attempting to take a photo

of a trade secret, and obtain the agreement of the CSHO to treat the photo as a

trade secret.

9. Can the company correct alleged hazards during the onsite visit?

Yes. If the CSHO points out perceived safety or health deficiencies during the

walk-around, management should attempt to correct these alleged deficiencies

immediately. The appropriate action may be as simple as correcting someone

who is not wearing the appropriate PPE, or installing a simple machine guard.

If possible, make the change before the CSHO leaves the site, and let him

know that the correction has been made. It is a good idea to have a member of

maintenance or plant engineering standing by to fix alleged deficiencies

identified by the CSHO, as appropriate. BUT, no supervisor or member of

management should admit to any violation of an OSHA standard.



10. How should the employer act during the Closing Conference?

OSHA typically conducts a closing conference at the end of each inspection.

The CSHO will conduct the closing conference either at the company’s

facility or by telephone. During the closing conference, the CSHO discusses

her initial findings and conclusions, which she will submit to her supervisor

along with her recommendation for further action by the agency. To help

shape the recommendation she passes along, the CSHO may ask the employer

how long it will take the company to abate, or correct, a condition or work

practice discovered during the inspection that could be a violation of OSHA

rules. In responding to such a request, management must be sure to specify a

sufficient amount of time it will take to implement the required corrective

action.

As with the other stages of the inspection, it is important to designate someone

to take notes during a closing conference. Management should ask the CSHO

to fully explain any alleged deficiency, and to suggest steps that the company

can take to correct it. The management representatives must be sure that they

understand what the CSHO says.

During the closing conference, the CSHO may make observations or state

conclusions that the company does not agree with. The closing conference is

no time to argue with a CSHO. The company will have the opportunity to

“state its case” after OSHA issues a citation, if any.

1

William S. Rutchow (Nashville)Karen F. Tynan (Sacramento)

Tom Pritchett, CSP, Director of EHS & Compliance, Universal Recycling Technologies, LLC

OSHA 101: A Primer

Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans

Reporting Requirements

• Report to OSHA within 8 hours:– Any work-related fatality

• Report to OSHA within 24 hours:– Work-related in-patient hospitalization for care or

treatment of one or more employees • Not if just for observation or diagnostic testing

– Work-related amputation– Work-related loss of an eye

• But not loss of sight without loss of eye

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How to Report

• Call your closest Area Office during normal business hours and speak to a person – don’t leave message

• Call OSHA’s free and confidential number at 1-800-321-OSHA (6742)

• Report online

– https://www.osha.gov/pls/ser/serform.html


What to Report

• Establishment name

• Location of the work-related incident

• Time of the work-related incident

• Type of reportable event (i.e., fatality, in-patient hospitalization, amputation or loss of an eye)

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What to Report

• Number of employees who suffered the event

• Names of the employees who suffered the event

• Contact person and his or her phone number

• Brief description of the work-related incident


Recording Requirements

• Most employers with more than 10 employees at any time during the last calendar year are required to record serious work-related injuries and illnesses

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Recordkeeping Exemptions

• Partially exempt industries are excluded based on North American Industry Classification

– Unless asked in writing by OSHA, the Bureau of Labor Statistics, or a state agency with such authority.


Recordkeeping Exemptions

• All industries in agriculture, construction, manufacturing, utilities, and wholesale trade sectors are covered.

• Check your status: www.osha.gov/recordkeeping/ppt1/RK1exempttable.html

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Recordkeeping Forms

• Four Recordkeeping Forms

– OSHA 300 (Log)

– 300A (Summary)

– 301 (Injury & Illness Incident report)

– Privacy Concern List


Recordkeeping Deadline

• Employers must enter each recordable case on the forms within 7 calendar days of receiving information that a recordable case occurred

• Forms can be kept on a computer as long as they can be produced when they are needed

– Four hours

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Privacy Protection

• Do not enter the name of an employee on the OSHA Form 300 for “privacy concern cases”

• Enter “privacy case” in the name column

• Keep a separate confidential list of the case numbers and employee names


Privacy Protection

• An injury or illness to an intimate body part or reproductive system

• An injury or illness resulting from sexual assault

• Mental illness

• HIV infection, hepatitis, tuberculosis

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Privacy Protection

• Needle stick and sharps injuries that are contaminated with another person’s blood or other potentially infectious material

• Employee voluntarily requests to keep name off for other illness cases


Recording Criteria

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General Recording Criteria

• Death

• Days away from work

• Restricted work or transfer to another job

• Medical treatment beyond first aid

• Loss of consciousness

• “Significant” injury diagnosed by a physician or other licensed health care professional


General Recording Criteria

• Death

• Days away from work

• Restricted work or transfer to another job

• Medical treatment beyond first aid

• Loss of consciousness

• “Significant” injury diagnosed by a physician or other licensed health care professional

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Days Away From Work

• Record on 300 Log with check mark in space for days away cases

• Enter number of calendar days away from work in the number of days column; when case is initially entered on Log estimate the length of absence and update Log when actual count is known

• Do not count the day on which injury occurred –start counting the day after


Days Away from Work

• If physician or licensed care provider recommends day(s) away but the employee works anyway, recommended “day(s) away” must be counted

• Even if not scheduled to work, record if information is received from doctor that employee should not work or work should be restricted

• Total “Days Away” may be capped at 180 days

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Restricted Duty

• Employee is restricted by employer from performing one or more “routine functions” or from working a full shift or transferred to a different job (non-permanent transfer)

• A doctor recommends that employee not perform one or more routine functions or not work the full shift or be transferred to a different job (non-permanent transfer)

• “Routine Functions”: An activity employee regularly performs at least once per week (§1904.7(b)(4)(ii))


Medical Treatment Beyond First Aid

• “Medical treatment” – “The management and care of a patient to combat disease or disorder.”

• Does not include:– Medical visits solely for observation or counseling

– Diagnostic procedures (x-rays, blood tests, prescription eye drops to dilate pupils)

– First aid, which is defined completely and exclusively by a list of 14 specific treatments

– First aid administered by a doctor is still first aid; medical treatment by a non-doctor is still medical treatment

– Medical treatment prescribed but not followed is still medical treatment

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First AidUsing non-prescription medication at a non-prescription strength

Cleaning, flushing, soaking surface wounds

Using wound coverings: bandages, Band-Aids, gauze pads, butterfly bandages, steri-strips

Removing foreign bodies from eyes using only cotton swabs or irrigation

Removing non-eye foreign materials or splinters by irrigation, tweezers, cotton swabs, or other simple means

Tetanus immunizations

Hot/cold therapy

Non-rigid supports (e.g., elastic bandages, wraps)

Temporary immobilization devices while transporting

Drilling finger/toe nails, draining blisters

Eye patches

Finger guards

Massages (not physical therapy or chiropractic treatment)

Drinking fluids for heat stress relief


Electronic Filing

• Required to submit OSHA Form 300A– Establishments with 250 or more employees

– Establishments with 20-249 employees classified in certain industries with historically high rates of occupational injuries and illnesses

– Establishments with fewer than 20 employees at all times during the year do not have to routinely submit information electronically to OSHA

– Reports are due on March 2nd each year – 29 CFR § 1904.41

12


Employer Duties

• General Duty Clause Section 5(a)(1) – Employer must furnish employees a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm.

• Section 5(a)(2) – Employer must comply with applicable occupational safety and health standards.


OSHA Inspections

• Imminent Danger

• Fatality/Catastrophe

• Complaints/Referrals

• Programmed

• Special Emphasis/Targeting Initiatives

• Follow-up

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Inspection Process

• Opening Conference

• Walkaround

• Interviews

• Document Requests

• Closing Conference

• Time: One Day – Six Months


Inspection – Arrival On Site

• Compliance officer has a right to enter worksite without unreasonable delay

• Employer has right to deny access without a warrant

• DO: Seek legal advice regarding warrants

• DO: Notify management and legal counsel when OSHA arrives

14


Steps You Should Take When OSHA is at the Door

• Review credentials of compliance officer

• Learn the purpose of the investigation

• Contact appropriate company official and/or counsel


Steps You Should Take When OSHA is at the Door

• Why is OSHA investigating? – Imminent danger

– Catastrophic and fatal accidents

• Report employee fatality to OSHA within 8 hours

• Report employee hospitalization, amputation, or loss of eye to OSHA within 24 hours

– Employee or other complaint

– Programmed (SST, NEP, etc.)

– Re-inspection

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General Inspection “Rules”

• #1: Be polite and professional


#2: Accompany inspector(s) at all times.

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#2: Accompany inspector(s) at all times.

• Photograph what OSHA photographs

• Video record what OSHA video records

• Sample what OSHA samples

• Take notes of everything noted by OSHA


#3: Stop all work, if possible.

• Avoid equipment demonstrations

• No reenactments

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#4: Don’t argue


#5: Don’t make excuses

• “We meant to fix that”

• “It was only like that for a minute.”

• “The new guy is an idiot.”

• “We don’t have money in the budget for that.”

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#6: Do not admit liability

• Don’t agree that an issue was out of compliance

• “We meant to fix that” = admission of liability

• A violation of company safety rules is not necessarily an OSHA violation


#7: Fix what you can easily fix

• Quietly

• Without argument or discussion

• If not a quick fix, make note

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Opening Conference

• OSHA, management, and employee representatives –can be separate

• Scope of investigation – the ground rules– Management consent OR warrant to inspect

– Consent must match scope of investigation

– Areas to be entered

– Trade secrets to be protected

– Required PPE for CSHO


Walkaround

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The Walkaround

• OSHA’s first fact gathering

– “Shadow” the compliance officer

– Be polite and do not argue, but do not volunteer

– Be aware of conversations with employees

– No obligation to “stage” operation

– Consider how to handle apparent violations

– “Plain sight” doctrine


Interviews – Non-Supervisory Employees

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Hourly Employee Interviews

• OSHA has the right to “question privately” any employee, supervisor, or manager

• No rule against the employer interviewing hourly employee witnesses, even on work time

• Interviews are voluntary, unless OSHA issues subpoena

– But don’t encourage workers to not cooperate with OSHA


Hourly Employee Interviews

• Employee may request representation

– Union, attorney, manager

• Employer may prepare employees

• Employer may “de-brief” employees

• Employees not required to sign statement

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Interviews – Supervisory Employees


Management Interviews

• Statements by managers/supervisors are binding on the company

– Entitled to management representative or attorney

– Typical ground rules• No tape or video recording of interviews

• No signing of statements

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Management Interviews

• Prepare managers who will be questioned

• Lying to an inspector is a criminal offense and OSHA will prosecute


Document Requests

• May include

– OSHA 300s, 300As, 301s

– Safety Programs

– Training Records

– Accident Investigation

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Document Requests

• DO: Ask for the requests in writing and establish deadlines

• DO: Make sure records produced are accurate and complete


Document Requests

• Document requests submitted to a single source, in writing

– Is the document responsive to OSHA’s written request?

– Is the document privileged?

– Is the request reasonable?

– Maintain separate copy of all documents provided

– If written, no question what was sought by OSHA

• Do not allow compliance officer to rifle through documents

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Closing Conference

• Compliance Officer will discuss the results of inspection

• DO: Ask questions about specific standards being cited and the classification of the citation

• DON’T: Argue during the closing conference

• DON’T: Admit to violations or recognized hazards


Closing Conference

• Goal – Learn as much as you can– What citations will OSHA issue?

– How will they be characterized?

– What abatement does OSHA expect?

– How is the abatement to be accomplished?

• Avoid admissions

• LISTEN

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OSHA Citation


Citations – Options

• Accept and abate

• Request an Informal Conference

• Contest

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Citations Issued

• Employer has 15 working days from receipt of citations to file notice of contest

– The 15-working-day period cannot be extended

– Failure to file a timely notice of contest effectively ends your ability to challenge any aspect of the citations or proposed penalties


Citations Issued

• Right to Informal Conference with Area Director during the 15-day period

• State Plan deadlines may vary

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Penalty Amounts – 2019Classification Amount

Willful Up to $132,598

Repeat Up to $132,598

Serious Up to $13,260

Other-than-Serious Up to $13,260

Failure to Abate Up to $13,260 per day


Informal Conference

• OSHA encourages a meeting with the Area Director after receipt of the citations to see whether they can be resolved without the necessity of litigation

• Opportunity to argue citations believed to be in error, or abatement dates which cannot be met

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Informal Conference

• Opportunity to pin down just what OSHA requires for abatement

• Chance to find out more about OSHA’s case generally

• Sometimes settlement terms will be favorable, especially if citation remains essentially as issued


Whether to Contest

• Varies according to employer and particular situation, but significant consideration is warranted:

– If a willful citation is received where an employee death has occurred (potential criminal prosecution)

– If the proposed penalties are great (this is relative)

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Whether to Contest

– If, regardless of penalty, the abatement required would be impossible or costly, either directly or indirectly through disruption of the established work procedures

– If a citation is believed improper, whether because the cited regulation is not applicable or because the employer believes its conduct did not violate the act or regulations

– Job bid requirements


Notice of Contest

• Fairly simple: tell OSHA what you’re contesting

– Violation itself

– Classification

– Penalty

– Abatement period

– Abatement

– All of the above

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Notice of Contest Filed

• Case goes to Solicitor’s Office (DOL attorneys)

• Opportunity to settle before complaint filed if you were close with Area Director but ran out of time

• After complaint and answer filed, case will be assigned to OSHRC ALJ for handling

• Usually limited discovery

• Mandatory settlement conference in cases with penalty greater than $100,000


Occupational Safety and Health Review Commission Process

• Hearing is held before OSHRC judge

• Appeal is by permission to OSHRC

• Further appeal is by right to federal circuit court

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Required Postings

• “It’s The Law” Poster

• OSHA 300A Form

• Citations

• Notice of Informal Conference

• Notice of Contest

• Notice of Hearing

• Stipulation and Settlement Agreement


How Are Employers Chosen for Inspection?

1. Report of amputation

2. OSHA hears about incident on the news

3. Neutral selection for National Emphasis Program

4. All of the above

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What to Do Upon OSHA’s Arrival?

1. Tell OSHA to come back next week when you’re not so busy

2. Ask OSHA to come back tomorrow when your safety professionals return

3. Any manager can walk around with the CSHO

4. Let them in – they’re from the government


The Opening Conference – Part I

1. Explain all the things you are doing right

2. Explain that you’ve been meaning to get to the things that are not in compliance

3. Find out the reason for the inspection

4. Try to find out who filed the complaint

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The Opening Conference – Part II

1. Argue about what a waste of time this is

2. Identify trade secret processes

3. Limit the scope of the inspection

4. Set the ground rules under which you are voluntarily letting in OSHA


What About Requiring a Warrant?

1. Always require a warrant – Barlow’s (U.S. Supreme Court) said it’s your right

2. Require a warrant and then challenge it in court before the inspection

3. Never require a warrant – it just makes OSHA mad

4. Decide well in advance the circumstances under which you will require a warrant

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Don’t Say This During Walkaround

1. Even if it is a hazard, no one is exposed

2. I know that is broken and I’ve been meaning to get it fixed

3. I know that is broken and it is on the prioritized schedule to be repaired

4. That exit door is blocked, but the one next to it is open


Who Should Be on the Walkaround Team? Part I

1. Company president

2. HR director

3. Company treasurer

4. Operations supervisor of the area inspected

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Who Should Be on the Walkaround Team? Part II

1. Corporate safety manager from HQ

2. Maintenance supervisor

3. Observer/notetaker

4. Workplace safety attorney


What About Written Materials?

1. Give everything CSHO wants

2. Refuse to provide anything without a subpoena

3. Provide recordkeeping records within four hours

4. Request a written list

37


Whistleblower Protection Under OSHA

• Section 11(c ) of the OSH Act prohibits employers from discriminating or retaliating against employees for exercising their rights under the OSH Act.

• These rights include filing an OSHA complaint, participation in an inspection or talking to an OSHA inspector, seeking access to employee exposure and injury records, reporting an injury, and raising a health and safety complaint with an employer.



• Complaint must be filed with OSHA within 30 days of alleged adverse action (but Cooperation Agreement between OSHA and NLRB)

• Remedies for violation: rehire, reinstatement and back pay

38



• Complaints investigated by Whistleblower Protection Program (WPP) office

• No private right of action

• Cases litigated in federal district court


Conclusion

39

William S. Rutchow (Nashville)Karen F. Tynan (Sacramento)

Tom Pritchett, CSP, Director of EHS & Compliance, Universal Recycling Technologies, LLC

OSHA 101: A Primer

William S. Rutchow

Shareholder || Nashville

William (“Bill”) Rutchow joined the firm in ��. A�er several years in

the Greenville, South Carolina o�ce, he moved to the Nashville o�ce in

��. He is currently a Shareholder in the Nashville o�ce. Bill currently

concentrates his practice in three areas: Workplace Safe� and Health,

Unfair Competition/Trade Secrets, and Employment Litigation. Bill also

has experience in commercial litigation, personal injury litigation, and

NLRB proceedings.

Workplace Safe� and Health – Bill has extensive experience in crisis

management for clients involved in workplace accidents resulting in

fatalities, injuries, and/or significant proper� damage. Bill represents

clients in proceedings before OSHA, CSB and state OSHA plans.

Unfair Competition/Trade Secret Litigation – Bill has represented

clients in unfair competition disputes including ma�ers involving

breach of contract, fraud, deceptive trade practices, violation of

restrictive covenants and misappropriation of trade secrets.

Employment Litigation – Bill has successfully defended employers in

employment litigation throughout his career both in proceedings before

administrative agencies such as the EEOC and DOL and before state and

federal courts. He has tried cases involving Title VII, ADEA, ADA,

Tennessee Human Rights Act, retaliatory discharge, whistleblower,

FLSA and breach of employment contracts.

Bill is a member of the firm’s Ethics Commi�ee, the Unfair Competition

and Trade Secrets Practice Group, the Workplace Safe� Practice Group,

the Traditional Labor Law Practice Group and the Litigation Practice

Group. He is a frequent author and speaker on employment-related

topics.

https://ogletree.com/locations/nashville

tel:+16156872224

mailto:[email protected]

https://ogletree.com/wp/wp-admin/admin-post.php?action=get_vcard&pid=4440&name=william-s-rutchow

https://ogletree.com/

Karen F. TynanOf Counsel || Sacramento

Karen Tynan is an of counsel a�orney in the Sacramento o�ce of

Ogletree Deakins. Karen is originally from the state of Georgia, and a�er

graduating with honors from the United States Merchant Marine

Academy, she worked for Chevron Shipping Company for ten years –

sailing as a ship’s o�cer on oil tankers rising to the rank of Chief O�cer

with her Unlimited Master’s License as well as San Francisco Bay

pilotage endorsement. Karen was the highest ranking woman in the

Chevron fleet when she le� her seafaring life. �is maritime and

petroleum experience is unique among employment lawyers and brings

a “real world” approach to working with management and achieving

litigation goals.

A�er her decade in the merchant marine, Karen relocated to California

and graduated cum laude from Empire College School of Law. During

law school, she clerked with the Sonoma Coun� District A�orney’s

o�ce for two years. �e last decade, Karen’s specialized in defending

employers in the workplace safe� arena and defending sexual

harassment and wrongful termination lawsuits for California employers

including construction companies, transportation companies, wineries,

and media companies. Recent notable successes include a �� defense

verdict in a sexual harassment case in Napa Coun� for a large

construction company as well as successful se�lement of Cal OSHA

citations with a ��% reduction in fines for Willful and Serious citations

issued out of Oakland for a large San Francisco based company in ��.

Karen’s expertise also includes blood-borne pathogen regulatory

compliance related to the Cal/OSHA standard for hospitals, nursing

homes, and general industry. She e�ectively defended five companies

regarding the proper hazard minimization with regard to blood-borne

pathogens in California.

Karen has been a communi� leader in Northern California taking

leadership positions in a number of school boards and communi�

organizations including libraries and professional organizations. She is

the founding counsel for the Commi�ee for Equi� in Women’s Surfing,

which brought prize equali� to women’s surfing by working closely

with the leading big-wave women athletes and the California Coastal

Commission and State Lands Commission from �� through ��.

https://ogletree.com/locations/sacramento

tel:+19168403150

mailto:[email protected]

https://ogletree.com/wp/wp-admin/admin-post.php?action=get_vcard&pid=7172&name=karen-f-tynan

https://ogletree.com/

OSHA 101: A PRIMER - Ogletree DeakinsWhen an OSHA Compliance Officer (“CSHO”) arrives at your...

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