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June 2012June 2012Mark Banden, Compliance Assistance Mark Banden, Compliance Assistance SpecialistSpecialistKansas City Area OfficeKansas City Area Office

Surviving an OSHA Inspection

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Enforcement Program

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The Dark Side: Enforcement

Still an Important tool- Deterrent effect- Intervention effect

Open Fields Doctrine

“Cruise and Bruise”

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INSPECTION PROCEDURES

Presentation of CredentialsPresentation of Credentials Attendance at Opening ConferenceAttendance at Opening Conference

One hour delay to get Safety Personnel on-siteOne hour delay to get Safety Personnel on-site

Purpose and Scope of the InspectionPurpose and Scope of the Inspection Permission to conduct inspection Permission to conduct inspection

Employees of Other EmployersEmployees of Other Employers Walkaround RepresentativesWalkaround Representatives

Employees Represented by a Certified or Recognized Bargaining AgentEmployees Represented by a Certified or Recognized Bargaining Agent Safety CommitteeSafety Committee No Certified or Recognized Bargaining AgentNo Certified or Recognized Bargaining Agent

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INSPECTION PROCEDURES

Disruptive ConductDisruptive Conduct Trade SecretsTrade Secrets Classified AreasClassified Areas Walkaround InspectionWalkaround Inspection

Evaluation - The employer's safety and health programEvaluation - The employer's safety and health program Record All Facts Pertinent to an Apparent ViolationRecord All Facts Pertinent to an Apparent Violation

““Plain View” hazardsPlain View” hazards Limit Access to CSHO.Limit Access to CSHO.

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INSPECTION PROCEDURES Collecting SamplesCollecting Samples Taking Photographs and/or VideotapesTaking Photographs and/or Videotapes InterviewsInterviews

Purpose. Section 8(a)(2) of the Act authorizes the Purpose. Section 8(a)(2) of the Act authorizes the CSHO to CSHO to question any employee privately during question any employee privately during regular working hoursregular working hours in the course of an OSHA in the course of an OSHA inspectioninspection

• Management can have others presentManagement can have others present

Employee Right of ComplaintEmployee Right of Complaint Prohibition against discrimination under Section 11(c) Prohibition against discrimination under Section 11(c)

of the OSH Actof the OSH Act

Protected ActivitiesSection 11(c) of the OSH Act

Employees cannot be discriminated against for Employees cannot be discriminated against for engaging in the following activities:engaging in the following activities: Reporting or discussing safety issues with company or Reporting or discussing safety issues with company or

OSHA representativesOSHA representatives Filing a Complaint with OSHAFiling a Complaint with OSHA Refusing to do work where “Imminent Danger” Refusing to do work where “Imminent Danger”

hazards existhazards exist Incentive Programs which discourage injury Incentive Programs which discourage injury

reportingreporting8

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INSPECTION PROCEDURES

Employer Abatement AssistanceEmployer Abatement Assistance Policy. CSHOs shall offer appropriate Policy. CSHOs shall offer appropriate

abatement assistance during the walkaround as abatement assistance during the walkaround as to how workplace hazards might be eliminatedto how workplace hazards might be eliminated

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INSPECTION PROCEDURES

CLOSING CONFERENCE:CLOSING CONFERENCE: At the conclusion of an inspection, the CSHO shall At the conclusion of an inspection, the CSHO shall

conduct a closing conference with the employer and conduct a closing conference with the employer and the employee representatives, jointly or separately, the employee representatives, jointly or separately, as circumstances dictate. The closing conference as circumstances dictate. The closing conference may be conducted on site or by telephone as deemed may be conducted on site or by telephone as deemed appropriate by the CSHOappropriate by the CSHO

The CSHO shall describe the apparent violations The CSHO shall describe the apparent violations found during the inspection and other pertinent found during the inspection and other pertinent issues as deemed necessary by the CSHO. issues as deemed necessary by the CSHO.

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FOCUSED INSPECTIONS(Construction Sites Only)

Goal:Goal: To make a difference in the safety and health of To make a difference in the safety and health of

employees at construction sitesemployees at construction sites Effective time utilizationEffective time utilization

Previous goal:Previous goal: All inspections comprehensiveAll inspections comprehensive All hazardsAll hazards

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Focus 4 Hazards: Falls from elevationFalls from elevation Struck-byStruck-by

Electrical shockElectrical shock

Caught-in-betweenCaught-in-between

30 %30 %

22%22%

18%18%

17%17%

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Inadequate Safety And Health Program

Resource intensive inspections will be Resource intensive inspections will be conducted on projects where there is conducted on projects where there is inadequate contractor commitment to safety inadequate contractor commitment to safety and healthand health

This group of employers will receive This group of employers will receive OSHA’s full attentionOSHA’s full attention

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CSHO Determines

During all inspectionsDuring all inspections Adequacy of safety and health program andAdequacy of safety and health program and Designated competent personDesignated competent person

Inspection scopeInspection scope Focused inspectionFocused inspection Comprehensive inspectionComprehensive inspection

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Assessment Of Safety And Health Program Comprehensiveness of programComprehensiveness of program Degree of implementationDegree of implementation Designation of competent personDesignation of competent person Enforcement of policiesEnforcement of policies Employee involvement Employee involvement TrainingTraining Employee interviewsEmployee interviews Citations of 4 leading hazards Citations of 4 leading hazards

Other plain-view serious hazardsOther plain-view serious hazards

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Enforcement

OSHA says “bah-humbug” to Salvation Army Santa

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Penalties and Violation Classification

Other-than-serious violationsOther-than-serious violations (Unusually $0 fine) (Unusually $0 fine) Hazard not capable of causing death or serious physical harmHazard not capable of causing death or serious physical harm

Serious violationSerious violation (maximum fine of $7,000) (maximum fine of $7,000) Hazard capable of causing death/serious physical harmHazard capable of causing death/serious physical harm

Repeated violationRepeated violation (maximum fine of $70,000) (maximum fine of $70,000) Previously cited for a substantially similar hazard in past 3 yearsPreviously cited for a substantially similar hazard in past 3 years

Willful violationWillful violation (maximum fine of $70,000 per instance) (maximum fine of $70,000 per instance) Knew of hazard but did not take action, orKnew of hazard but did not take action, or Plainly indifferent to hazardPlainly indifferent to hazard

Failure-to-abate Failure-to-abate (maximum of $10,000/day unabated)(maximum of $10,000/day unabated) Possible 11(b) enforcement sanctions by courtPossible 11(b) enforcement sanctions by court

WHY QUESTIONS

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U.S. CONSTITUTION Due process Due process

Employer can challenge citationEmployer can challenge citation

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Informal Case Settlement

Expedited Informal Settlement AgreementsExpedited Informal Settlement Agreements are are usually sent with the citations which offer a 30% usually sent with the citations which offer a 30% penalty reductionspenalty reductions Just sign and mail back within contest periodJust sign and mail back within contest period

Informal ConferencesInformal Conferences can be held within the 15 can be held within the 15 day contest periodday contest period Come into OSHA Office and discuss case mitigating Come into OSHA Office and discuss case mitigating

issuesissues Formal Settlement drafted and executed Formal Settlement drafted and executed

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ProcessProcess If a citation is issued the employer has the If a citation is issued the employer has the right to right to

contescontest.t. Result is a Result is a hearing before a judge hearing before a judge of the of the

Occupational Safety and Health Review Occupational Safety and Health Review Commission.Commission.

The The secretary has the burden of proof for the secretary has the burden of proof for the prima facieprima facie..

The The employer has the burden of proof for any employer has the burden of proof for any affirmative defenseaffirmative defense..