Friday, May 2, 2014

Would You Tell OSHA to Go Get a Warrant to Inspect Your Site?

Would you consent to a search of your entire household by a police officer who got a complaint about your barking dog but decided he wanted to poke his nose in all your closets and drawers to determine if you were breaking any other laws? I bet most of you would not consent to the search because you are aware of your constitutional protection against unreasonable search and seizure without probable cause. Well, that same protection applies to the workplace too.
  
Many people do not realize that a company has the right to tell OSHA to get a warrant before being allowed to conduct an inspection on their site. In fact, the Supreme Court ruled in the case of Marshall v. Barlow's, Inc. in 1978 that OSHA may not conduct warrantless inspections without an employer's consent. OSHA may however, inspect the site after acquiring a judicially authorized search warrant based upon administrative probable cause (like the random selection of a company covered under one of the national emphasis programs) or upon evidence of a violation (such as a valid employee complaint).
 
So why would a company tell OSHA they must get a warrant to inspect?  The “benefits” of doing so could include . . . . .     
    
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35 comments:

  1. Another instance in which it makes some sense to demand a warrant is when the CSHO refuses to wait a reasonable amount of time for your designated inspection representative (e.g., safety director, OSHA counsel) to arrive at the facility to participate in the inspection. OSHA's own Field Operations Manual directs them to wait a reasonable amount of time, but if they are not willing to do so, you can force them to wait (often several days or weeks instead of just a few hours) by demanding a warrant.

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  2. Good point. Of course, the question then becomes "what is a reasonable amount of time".

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    1. My approach has always been that "reasonable is reasonable." If the individual who we want to serve as the inspection representative is 4-hours away, or 3 states away and can't be there until the next morning, that's reasonable. I.e., if the request to delay the start of the inspection is only for the precise amount of time it will take for the individual to arrive, and the reason for requesting the delay is only for the purpose of allowing time for that representative to arrive (and not some nefarious purpose) then that is reasonable. OSHA may disagree, but if they're unwilling to wait a few hours to conduct an inspection with our consent, they'll end up having to wait several days or weeks to go get a warrant.

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    2. OSHA's Field Operations Manual, Chapter 3, Section IV, Paragraph B.3 states: " The inspection shall not be delayed unreasonably to await the arrival of the employer representative. This delay should normally not exceed one hour."

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  3. I found your article very interesting! You caught my attention with the opening. Thank you for sharing. Anne Price

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  4. Great points. Keep in mind though, that the csho will be asking a lot of questions in their private worker interviews about "what changed" in the interim time from when they knocked to when they entered with the search warrant. Did you receive any instructions about what to say/not say when I came back? Where there any safety issues fixed in that time / where you or coworkers ever exposed to it? A ton of questions. Warrant requests are very few each year. Our recommendation has always been to "make that decision/plan" with help of OSHA specialized legal ahead of time. Doing it spontaneously on your own without some specialized can turn bad, quickly from the inexperience of using that process. Some companies use it as a matter of policy but it's always well thought policy, planning with legal help. - Gabe L. Sierra

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  5. Thanks for sharing this experience Mr. Chambers. On two of my recent trainings two of the instructors concurred that going that route would be like calling for the cavalry upon your site. One of the instructors was an OSHA Official for many years, while the other has been the Safety Director for a large US Corporation for over a decade. Both individuals shared how easy is nowadays for an OSHA inspector to get a warrant, some have already established a good relationship with the court officials and are able to have such document ready the same day. In addition to the instructors, many of the participants that were present came from various industries and with similar backgrounds of Safety Management. Although a few favored this same position to request for a warrant, for the most part it was agreed under normal circumstances that it was best to comply with an OSHA officer wanting to access your facility.

    I personally believe that if you fear that your particular project, facility or site isn't in full compliance, you should request voluntarily for an OSHA consultation, this could be free depending on the size of your business... Always cheaper than fines if you are a large compnay. On-site Consultation services are separate from enforcement and do not result in penalties or citations. Your only obligation will be to correct serious job safety and health hazards -- a commitment which you are expected to make prior to the actual visit and carry out in a timely manner... Good Topic, And thanks again for sharing ! Adel.

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  6. You would be better off beating a hornet's nets with a stick. Nothing good is going to come out of it!

    Much to the dismay of some of my previous employers, I would often consult the local OSHA office for advice. I would have them come to my job-site to provide a second set of eyes. I have never had an issue with these folks. If they saw something needing fixing, I took care of it. I have never had a OSHA rep. come back with a surprise inspection or warrant.

    I believe that companies that insist on warrants are just using the time to hide problems. But, like the hornets, they are going to find every square inch of the job-site to sting you! Michael Huff, M.S., CSP, EMT-B

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    1. "You would be better off beating a hornet's nets with a stick. Nothing good is going to come out of it!"

      You got that right!!!

      If something wrong for safety's sake fix it. If you feel that OSHA is harassing you then maybe do the "warrant" thing but otherwise it's done for the safety of the employees - why not have the inspection if you are doing your job and everything is OK???

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  7. I agree with Michael Huff, I never thought of OSHA as the enemy. They are interested in a safe workplace for employees, just as I was. I always reached out to the local office to introduce myself and to invite representatives to visit my operations. Even at sites with unions that tried to use OSHA as a weapon, OSHA representatives tended to be more balanced when you developed a transparent philosophy. I found that a positive relationship proved to be a benefit to the companies that I represented.

    Even with a good working relationship, it was still my practice to limit OSHA to the scope of the complaint; you don’t need a warrant to do this. Also, I never had any issue with asking a compliance officer to wait 30 to 60 minutes for the appropriate personnel to be located and made available. Again, a warrant is not required for this.

    Compliance is the minimum that a company should be trying to achieve in order to protect employees, so I did not see any point in creating an adversarial relationship with OSHA.

    I had a large number of sites that eventually achieved VPP Star status. It gave me and my company credibility and a great working relationship with OSHA. I would never ask a compliance officer to get a warrant. In fact many responsible companies have a policy against requesting warrants.

    Dennis M. Hussey, Ph.D. CIH, CSP

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    1. Dennis. In general I agree with your statements. However, you say "Even with a good working relationship, it was still my practice to limit OSHA to the scope of the complaint; you don’t need a warrant to do this." That is easy to say, but exactly what would you have done differently in my situation? Remember, the compliance officer was told by his boss to expand the inspection, and if allowed that would have changed it from a quick inspection of one complaint item in the isolated paint shop to a wall-to-wall of a huge site with 3000+ employees, probably taken 4 days to complete.

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    2. Curtis

      We instructed Site EHS Professionals concerning the dos and don'ts during an inspection. We insisted that site EHS start with the opening conference to understand the scope of the inspection. They were also instructed to let Corporate or Division EHS know about the inspection immediately. We let the compliance officer know that we would only allow questions of employees and visits to the work area that were in scope. We always maintained a line of sight with the employees being interviewed.

      We instructed the EHS Pros to go to the area in question via an intelligent route … one that did not involve passing through other areas likely to involve significant compliance risk (Paint shops, plating areas, welding areas, etc). We instructed site EHS that they could leave the plant and walk outside to get to the scope area if necessary. We did everything that we could to manage the process while still being reasonably cooperative.

      If the compliance officer tried to increase the scope or indicated that he/she was under orders to increase the scope, we would immediately set up a conference call to the OSHA area director to understand the bigger issue. Because we have previously met with personnel from the area office, we knew the director and other office personnel.

      We never had an issue with restricting the scope and never had to require OSHA to get a warrant. But the companies I worked for also had a reputation for being effective with respect to compliance and for not being adversarial. We invited OSHA in proactively.

      My opinion is that if you ask for a warrant, you will get payback. And they will get the warrant and inspect the area anyway. It is not worth the ill will that the obstruction will create.

      Dennis

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  8. Those were indeed good times Curtis, under your leadership things truly did begin to change for the better. Randy Hufstetler, PHR, OHST

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  9. Thanks for sharing an appropriate reason for requesting a warrant. One should understand the totality of the circumstances when electing to respond this way with OSHA. - Dale Eley

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  10. It has always been my practice to not request a search warrant when a compliance officer shows up as that usually results in a more aggressive search, usually with more compliance officers getting involved. By avoiding a search warrant, the compliance officer and I had the understanding during the opening conference that they were only going to the area in that was the result of the complaint. If I needed to curtain off the path to and from the alleged area or take them outside the plant and in through the closest doorway, that was our prerogative and they didn't have any problem with that approach. David Gazda, MS CSP

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  11. As a former OSHA compliance officer. It would be in your best interest to make OSHA get a warrant if you feel that they maybe trying to cite you with a willful violation. With willful violation starting at $70,000 it would be best to protect your company. Jerry Ford

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    1. Actually, it STARTS at 5K and goes from there. 70K would be for a repeat of a willful violation. - If you are an Inspector (like I am) you should know that - just sayin

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    2. There is no way you are an inspector, because YOU are the one who got the penalty amounts wrong - just sayin.

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    3. I know Jerry Ford when I was an inspector in Region 2 and sad to say his reputation was not a good one. However, what I like to share with many of the readers is that it doesn't matter if you deny entry or not with regards to the DOL retrieving a warrant. If you (the employer) violated the OSH Act by creating an unsafe work area and either knowingly failed to comply with a legal requirement (purposeful disregard) or acted with plain indifference to employee safety, a willful citation is forthcoming regardless how long it takes to get a warrant or to conduct an inspection. A well trained and experienced CSHO will get the facts, take the necessary pictures, ask the right questions, and conduct a thorough investigation (think CSI) to warrant a willful citation. Hence my first willful case where I proposed a willful citation with a specific utility company didn't even result in an informal conference. That is how well documented the case was to include my thorough questioning during the interviewing of the exposed employees and the foreman supervising the unsafe trench. I have a saying, "It is what it is and nothing less or more!"

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  12. In my humble opinion... For those who dig their heals in the ground and demand a warrant, have either something to hide or feel it's important to show "Who's boss" to a compliant officer...I have had that experience before and have been written up for petty things such as, having the 300A log sitting on the desk instead of being posted on the wall, fire extinguisher tags not initialed off monthly, a empty 2 gallon fuel container sitting in the storage room, ect. For those who prefer to not continuously provide a safe working environment for their employees and do not welcome an OSHA audit as a learning tool, your grief as a business manager has just begun... That's just my opinion anyway. - Roger Hillard

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    1. Roger, you hit it right on the nose. 95% of the time those violations would have been overlooked by a CSHO if a warrant was not required. Trust me on this. However, since a warrant was requested during your OSHA visit, you released a pitbull after being caged up and beaten.

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  13. Interesting perspective. I have never asked for or recommended requiring a warrant. However, I have never had an employee complaint expand beyond that complaint. In that case it might be a viable option. Paul Tranchell

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  14. Years ago, a CSHO arrived at my facility with an employee complaint. As I read through the complaint, I noticed that it described conditions and equipment that had not been present in the facility for over 6 months so I told the CSHO that it was not from a legitimate employee. He said he would return with a warrant but he never did.

    Recently, in another state, 2 CSHOs arrived at our facility for an employee complaint inspection but would not let us see the complaint, saying that would constitute "advanced notice". I asked the CSHO to contact her supervisor and tell her that I did not consider granting my request as advanced notice and we would not permit the inspection to proceed without reading the complaint and deciding if it were valid. The CSHOs departed and later that week I received a phone call from the supervisor, informing me that we could handle the complaint in an informal manner by us doing an investigation and responding in writing to the complaint. She sent me the complaint that consisted of 33 items, obviously written by the maintenance supervisor who had been terminated the previous week for refusing to take a random drug test. No citations were issued.

    In these these types of cases it helps to know your rights and hold your ground.

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  15. I was once involved in a programmed inspection where the scope was expanded, I allowed the inspection to continue, the inspector only found two items he "could" have cited me for, one he removed on the spot after we proved our point and the other he took back to the AD, we received a call three days later stating we would not be cited and he actually asked if we would consider becoming a VPP participant. I think it depends on the circumstances at the time whether you should require a warrant or not. Randy Hufstetler, PHR, OHST

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  16. Great article Curtis. There are, in fact, legitimate reasons to request a warrant from OSHA and you mentioned several that everyone should be aware of. I will add an additional reason that several of my clients encounter: The companies are engaged in work involving trade secrets that contractually requires access be restricted to individuals they have approved and to those with a warrant or other legal right to enter.
    Also, to those who believe there is no need to ever worry about a warrant if they are in compliance with all rules and regulations - this gets back to the original premises of your article. Just because I'm not doing anything illegal does not mean that I would invite the police or anyone else in "just to take a look around." With OSHA, the time issue alone can be significant. In a large, complex operation, the time difference between a targeted inspection and a "wall-to-wall" inspection can be days.
    As with most things, how one approaches the "need a warrant" issue can make a huge difference. Compliance officers are human. Treat the official like an idiot and, purposely or not, you may get a bit of that attitude tossed back in your general direction. Treated professionally and courteously, I've never encountered a compliance officer who returned with a bad attitude when they came back with the warrant. Mark Briggs, CSP

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  17. I once worked for an individual who always wanted to protect his rights should an OSHA compliance officer show up and required that we request a warrant as standard procedure. Well, we had an incident (blew up a small building) that made the news (no injuries) and a CHSO showed up in a day or two. I made the request for the warrant and his first reaction was to ask if my request was racially motivated, as a white colleague had visited previously and a warrant had not been requested. I informed the individual that his colleague had only stopped by to ask a few questions regarding a contractor and had never asked to enter the site. Mollified, he left and returned some two weeks later with his warrant. By that time, the building had been rebuilt, as it was necessary for continuing operations. The officer stayed within the limitations of his warrant, toured the immediate area, interviewed some union personnel and ultimately proposed a serious violation for a deficient MSDS. As the MSDS did contain the information it was reported to be missing, the Area Director removed both the fine and the term of 'serious' from our citation during our informal conference.
    I'm not certain as to whether or not this fellow is still with the agency.

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  18. This is an interesting article, thank you. I can comment as both a safety professional and licensed attorney. My sole observation would be that if you're going to "require a warrant," you must fully train your employees on how to respond to a CSHO's arrival. Employees need to keep in mind that OSHA conducts administrative inspections of worksites, NOT criminal inspections. Therefore, as your commentators have said, employees must generally the reasonable wait time requirement. Regardless of whether or not the CSHO will be upset by your employee's requirement for a warrant, OSHA's administrative procedures rule the day and will generally tie the hands of a non-Article I judge (which is typically the magistrates who issue warrants). By simply telling employees to require a warrant, you've not adequately explained the many limitations of the process. Steven Miller, CSP, Esq.

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  19. Curtis. Thank you for this article. I am in the middle of a major blown out of proportion OSHA inspection because of an employee compliant of the plant and they have gone after the contractors on site of which one if my client. They have done everything to assist them and they are being ridiculous. Enough is enough but they are scared to “offend” OSHA and I am struggling with assisting them because they are just paying and hoping they will go away. This company has spent thousands trying to appease and I told them in the beginning they were being bullied and they are. After 30 years in the business, I know what is right and what is not and this area director needs to stand down. Thanks for your time in this.

    Donna S. Pearson, CSP
    President/Owner, Pearson Safety Services LLC

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  20. Very good topic and attention grabber. The idea that a federal or state policy is "end all" in searching a business's property or facilities without a warrant is presumptuous and needs challenging. Even good activities like searching a business to protect people without needing a warrant would ultimately lead to its insidious use.

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  21. As a previous OSHA investigator, when previous inspections showed that a site would often request a warrant before entry, we would typically just get a warrant ex parte - before any onsite visit. Then when I arrived and they wanted a warrant, I would already have it.

    This prevented the site from being able to hide any significant hazards during the time we would normally need to get a warrant.

    In my experience, only a couple sites ever asked for a warrant, and in half of those, I already had a warrant, and in the other half, it only took a day to get a warrant.

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  22. In the construction industry the site is usually visible from a public access point. Asking OSHA to get a warrant maybe acceptable based on corporate policy. Nevertheless, with an expiated warrant in hand they will start a wall to wall inspection.

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  23. I once asked for a warrant but for a reason different than any you mention. I was working for a unionized steel mill. A COSHO showed up and it was very obvious he came from a union background (this was back in the 80's when there were many former union COSHOs). He had an attitude and he was going to write a book on us before he was finished. So I sent him packing with a warrant request. It was a roll of the dice, but it worked. Two weeks later another COSHO showed up warrant in hand, and this guy had a much more amenable attitude.

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  24. I once asked for a warrant but for a reason different than any you mention. I was working for a unionized steel mill. A COSHO showed up and it was very obvious he came from a union background (this was back in the 80's when there were many former union COSHOs). He had an attitude and he was going to write a book on us before he was finished. So I sent him packing with a warrant request. It was a roll of the dice, but it worked. Two weeks later another COSHO showed up warrant in hand, and this guy had a much more amenable attitude.

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  25. This is good advice, In the past I have always been willing to accompany the OSHA compliance officer as a jest of good faith. No Longer is that the case, Now I am very specific and want to know the reason for the inspection and the scope of the inspection. While I know they have a difficult job, they need to move beyond the "hearsay" "I heard" "I assume" I have become much better prepared and will not be lured by the sirens song. - David Fielder

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  26. Hi.I'm on safety committee board and they're is a list of things need to be done like fork lift training, etc .my employer still refuses to get this done any suggestions??

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