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96 CommerCial ConstruCtion & renovation — January : February 2014 osHa iNspectioNs Many OSHA inspections are the result of employee complaints. It could be that a work condition simply looks hazardous to an employee. It may even be that a violation actually exists in the work environment. Worse, there may have been an employee injury or death caused by a workplace hazard. Complaints can be fled online, mailed or faxed to the nearest OSHA offce and a worker can advise OSHA not to tell their employer who fled the complaint. While some complaints may be resolved informally by telephone, if an OSHA inspector appears at your door – without advance notice – you should know your rights and your obligations. There generally is an opening conference where the inspector identifies the purpose of the visit. This is helpful, and will set the tone and scope of any planned inspection. While you're entitled to obtain a copy of the complaint that brought the inspector to you, you're not allowed to know who made the complaint. In fact, an act that discriminates against any employee filing a complaint such as demoting or transferring the employee is an absolute violation, as is the discharge of a whistle blowing employee. If this happens, the employee will be entitled to reinstatement and back pay. While it's always smart to cooperate with the inspector, you can insist on the issuance of appropriate legal documents as a pre-requisite to an OSHA inspection. You also have the right to ask that before any documents or records are produced, OSHA provide a subpoena. Be aware that providing false information to OHSA is a federal crime. Most employers have a company representative accompany the inspector during any review of the workplace. That person need not answer any questions posed by the inspector, and may wish to defer all questions to the company owner or attorney. Remember that any statements or answers made during the inspection process will be binding on the company. An uninformed company representative easily can be caught off guard and unwittingly admit to a violation. Volunteering information in legal situations is never a good idea, and that's equally true during an OSHA inspection. Before the inspector leaves, request a closing conference and have the inspector share his initial conclusions. Citations may be issued and, if so, you'll have a specif- ic time frame to respond. Failure to timely contest in writing any citation will result in that citation becoming final. There are both civil and criminal penalties involved in any OSHA violation. Fines ranging from a few thou- sand to many thousands of dollars can be levied. OSHA often will cite an employer on a violation by violation basis. Willful violations as well as false statements also could result in imprisonment. Employers would do well to review pertinent OSHA compliance directives in advance. OSHA publishes a Field Operation Manual and interpretation letters – both can be very helpful in evaluating a suspect work condition and the preferred way of addressing it. Failure to timely implement correc- tive action easily can lead to a citation. On the other hand, having written rules in place, communicating them to all employees in a documented fashion, and making sure the workplace remains safe through unannounced, periodic visits can provide you the shield needed when dealing with an OSHA inspection. There are defenses to many of the citations that generally are issued, from vagueness of any standard to unenforceable employee misconduct, from impossibility to economic infeasibility. Remember that be it a state or federal OSHA citation, it shall be OSHA's obligation and burden to prove the alleged violation. OSHA must show that a particular standard applies, that you were in non-compliance with that standard, that your employee was able to access the non-compliant work condition, and that you had actual knowledge of the violation. While OSHA doesn't have to show that an accident likely was to occur as a result of the non-compliant condition, it must show there was a probability of serious physical injury or death and knowing you as the employer did nothing to address the situation if OSHA expects to prevail in showing that the violation was indeed serious. Asserting a viable defense requires an understanding of the actual facts and applicable law, and all are best presented with the advice of counsel. CCR Alex Barthet, principal of The Barthet Firm, a 12 lawyer practice (barthet.com), also publishes thelienzone. com, a well-regarded construction law blog. OSHA expects that employers not only address hazardous conditions promptly, but also follow up on their corrective actions to be sure that these situations have been remediated. CCR-JanFeb.14_48-.indd 96 2/7/14 2:27 PM