by Katic Micik, DTN Staff Reporter
CHICAGO (DTN) — When Secretary of Labor Hilda Solis was sworn in, she said, “there’s a new sheriff in town,” and vowed to increase enforcement of labor laws. Since then, several explosions at elevators and record-setting grain engulfment incidents moved elevators to the top the Occupational Health and Safety Administration’s (OSHA) list.
“You’re on the short list, there is an incredible focus on your industry, so you need to be prepared,” said Eric Conn, an attorney that leads the OSHA practice division of Epstein Becker and Green, at the National Grain and Feed Association’s Country Elevator meeting in Chicago earlier this month.
Since 2006, all OSHA inspections have increased 6{fe867fa2be02a5a45e8bbb747b653fe2e9d0331fd056b85cd0c1a3542435a96e}. Much of that increase can be attributed to targeted inspection programs. Program inspections are up 15{fe867fa2be02a5a45e8bbb747b653fe2e9d0331fd056b85cd0c1a3542435a96e}, Conn said.
OSHA has established Local Emphasis Programs on the grain-handling industry in most states. OSHA can only inspect a facility if it has probable cause to believe there is an issue; the Local Emphasis Program gives them that cause because they’ve identified the whole industry as hazardous. In the past OSHA would investigate grain facilities if there was a complaint or incident; now OSHA will be systematically inspecting all facilities in areas where emphasis programs are in place.
As part of OSHA’s mentality shift towards enforcement, it has reinterpreted some parts of the statutes in ways that aren’t favorable to grain elevators, Conn said. The agency is focusing on follow-up inspections with the goal of issuing more repeat violations. It’s also expanded the timeframe it uses to determine repeat violations from three years to five.
Perhaps worse for elevators, Conn said, is that OSHA now considers all facilities under one corporate owner as a single workplace where it used to count each facility as an individual workplace. That change means that repeat violations and citations categorized as willful — the categories that carry the highest penalties — add up much faster.
OSHA citations categorized as willful across all industries increased 225{fe867fa2be02a5a45e8bbb747b653fe2e9d0331fd056b85cd0c1a3542435a96e} between 2006 and 2010. Halfway through 2010, OSHA had issued 18 citations with fines of more than $1 million. In all of 2006, OSHA issued four fines over $1 million. DTN sent questions to an OSHA spokesperson, but the agency failed to respond in time for publication.
“Employers are not out there suddenly and intentionally violating the law, this is a philosophy by the agency and it’s very real and has a very real impact on penalties,” Conn said. Communication between sister facilities and adequate preparation for an inspection has never been more important, he said. “They’re being more proactive. That’s why you need to be more proactive,” Conn said. He gave a presentation at NGFA on what to expect during an OSHA inspection and how to prepare. Here are a few of his suggestions.
BEFORE AN INSPECTION TAKES PLACE
One of the best protections against a costly OSHA citation is to know OSHA’s standards and be prepared for an inspection.
“It’s too late to prepare once OSHA’s come and knocked on the door. The time to do it is now,” Conn said.
Before OSHA arrives, elevators should review the Local Emphasis Programs for their area to know what OSHA’s targeting. (Here’s an example for Iowa: http://www.iowaworkforce.org/…) Conn also suggests reviewing the OSHA field operations manual and standards for grain-handling facilities so you know what procedures inspectors will follow and how they’ll conduct their investigations. It could give guidance on “how best to control an inspection once it starts, but most importantly, comply with the standards,” Conn said.
The next step is to make sure you have a written plan in place and have your facility audited for compliance with the plan. A thorough plan could help be a defense against violations that OSHA cites as willful.
Once a plan is in place, Conn recommends the audit be performed under the supervision of an attorney. An audit can show any areas where you’re not living up to the written plan or OSHA regulations, but it’s also a document OSHA requests during its inspection. OSHA can subpoena your insurance company’s safety audits, an administrative judge ruled last fall.
“They’re going to take that as a checklist for their inspection and if you haven’t corrected those violations or issues that were raised in your self-audits, they’re not only going to be cited, there’s a good chance they’re going to be cited as willful violations because you knew about it,” Conn said.
An attorney can complete the audit himself or instruct a compliance team to do it. If the audit is conducted with the goal of providing legal advice, it obtains attorney-client privilege and can’t be subpoenaed.
“You need to do the audits because you want to know where you stand, but you need to protect yourself if OSHA’s going to take a look at it,” Conn said.
It’s also important to designate people to fulfill certain roles, such as a spokesperson, records manager, etc. Make sure everyone on the inspection team knows what OSHA regulations require so they can identify issues ahead of time.
Conn also suggests preparing a log to keep track of what documents you give to OSHA and whether they contain confidential business information or trade secrets.
Before OSHA shows up at your door, designate walk-around routes. For instance, if the inspector wants to look at your engulfment hazards, avoid walking him by areas where you handle chemicals or load grain. An inspector can cite anything in plain sight, so it’s best to minimize what the inspector sees.
“Whether you’re doing it right or wrong, there’s no need for OSHA to walk through sensitive parts of your facility if it’s not part of their inspection.”
You do have the right to request OSHA obtain a warrant before starting an inspection. Conn said this is only advisable if you know you’ve got an issue and a day or two delay would give you enough time to fix it. Otherwise, it’s best to put on a cooperative face. For a first inspection, Conn said you don’t need an attorney present, but he’d suggest conferring with one by phone. If it’s a follow-up inspection after OSHA found violations or one that’s precipitated by an incident, it may be a good idea to have an attorney on the premises, he said.
DURING THE INSPECTION
The first step is an opening conference. Insist on one if the inspector tries to skip it, Conn said. During this meeting, establish ground rules like asking for all document requests in writing and setting up a system to schedule employee interviews. This is also when OSHA must tell you if they’re investigating a complaint (ask for a copy) or are completing an emphasis program inspection. That will define the scope of the investigation and what you’re required to show.
Scheduling employee interviews gives you a time to prepare employees by, letting them know their rights and reminding them of training they’ve received without coaching them on what to say. Hourly employees may request a member of management be in the room during their interview. Interviews with managers are more sensitive because even low-level managers are considered to be speaking on behalf of the company. Conn recommends having an attorney participate in these interviews, even if it’s only by conference call.
OSHA has a right to do a stop-and-talk interview, but if it gets beyond a five-minute discussion with an employee, Conn suggests stepping in and saying something such as “I don’t want to interrupt, but it really would be better for our business operations if we scheduled this interview so we could have an employee step in and fill his role while he’s being interviewed. Can we reschedule this for later this afternoon?”
Someone should always accompany the inspector and make sure he follows all of your safety guidelines. Conn recommends taking side-by-side photographs of what the inspector photographs.
Don’t volunteer information or create documents, Conn said. “Don’t say, you asked the question slightly wrong, OSHA. We call that document something else or we’ve got this other document you might be interested in. Hold that in your back pocket if you need it to defend a citation or defend an alleged violation.” Don’t write out the information if it’s not already in written form unless it is essential to avoid citations.
“Managing an inspection is about managing the flow of information. You want to know what is going out the door to the agency and control it. The best way to do that is to set ground rules with the agency up front.”
The closing conference will give you an idea of the hazards OSHA sees, what citations they may issue and gives you the chance to present extra information OSHA didn’t ask for if you think it helps your case.
If OSHA does issue citations, Conn suggests challenging them. OSHA must prove a lot to a judge, he said, and often citations are reduced to less serious levels or dropped all together. For instance, inspectors have been using dust standards to write citations that aren’t included in the inspection manual. Judges have thrown a lot of those out recently.
While OSHA will almost always reduce a fine, it’s more important to try to get them to withdraw the citation. If they issue a citation for dust this year and two years down the road there’s a dust-related fire, they’ll give you a willful or repeat citation, which means heftier fines and more frequent inspections.
Here’s a link to OSHA’s standard for grain handling: http://www.osha.gov/…
Conn’s presentation can be viewed here: http://ngfa.org/… (requires NGFA log-in). He said he prepared a desktop reference on preparing for an OSHA audit. You can contact him at econn@ebglaw.com.
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Posted with DTN Permission by Haylie Shipp
