Knowledge is Power – Part 1

If you are an employer, most government inspectors and investigators are not your friends. The Department of Labor’s OSHA, MSHA and their compliance officers, whistleblower investigators, and ‘special investigators’ can be friendly, helpful people, doing their job professionally, but company personnel must understand that they are looking for violations to fine, workplaces to change and evidence for use by their lawyers and Justice Department prosecutors, sometimes against company personnel individually, in addition to the company.

When DOL focuses on your worksite or on you, they are motivated by enforcement of dozens of laws and thousands of regulations. Moreover, it is called the Department of Labor for a reason. The sooner employer representatives understand their duties, agency procedures, authority, and their personal and company rights, the less likely they are to be adversely impacted by agency actions.

Every week, the press reports DOL fines in the hundreds of thousands of dollars, alleged violations demanding costly abatement, investigations of dozens of accidents and whistle blower complaints. Moreover, the ‘plaintiff’s lawyers’ are always ready to use the evidence identified and collected by DOL/MSHA/OSHA to support claims and lawsuits.

Knowledge is the power that can best protect you from adverse impacts. The following are some basic lessons about investigations from one of the most experienced and largest DOL/OSHA/MSHA defence teams in the US.

• Establish a single point of contact on worksites and in corporate management for coordinating agency visits, inspections, investigations, calls and inquiry letters. Train the response leader on company policies and legal rights regarding requests for physical evidence, demonstrations, documents and interviews. Many enforcement actions are made worse by uninformed responses to agency personnel.
• Have Counsel appoint the company coordinator/contact person, Counsel’s Investigator, charged with keeping track of a privileged and confidential company investigation, and with seeking help and counsel.
• If you speak to the government, only tell the truth. Most OSHA/MSHA/safety law criminal prosecutions result from lying, falsifying or destroying documents, or conspiring to cover up safety violations. DON’T. These actions carry five-year felony incarceration risks, and massive dollar criminal fines, far greater than the safety violation itself.
• Understand and use your constitutional freedom of speech rights, including the right not to speak, whenever the situation merits. DOL investigators are trained to ask:  How long has the violation been there? When did you first see it? Why didn’t you fix it? All intended to increase enforcement levels and fault/negligence allegations. Great answers are: “I’d rather not talk about it”; “We’ll take care of it right away”.
• An individual’s freedom of speech rights (and freedom not to speak) includes the right to set the terms for any voluntary discussions with MSHA or OSHA. Demands for private interviews and “AUTHORITY” to conduct them, do not ‘trump’ an individual’s constitutional rights.
• Understand and respect MSHA’s ‘warrantless’ site entry inspection authority. OSHA and almost all other similar agencies do not have warrantless entry authority. For OSHA, site access is dependent on a search warrant or employers waiving search warrants (by agreement to the inspection).
• Voluntary entry inspection agreements under OSHA can impose negotiated conditions (e.g. route and time limitations, but whatever can be seen can be cited). Note that both the employer (and employees’ representative) have the right to accompany MSHA and OSHA, and employers should always ask for time to make their representative available for the inspection.
• MSHA does not have subpoena power, so when it wants to enforce its records requests, it issues (or threatens) citation and orders for ‘interfering with an inspection.’ Generally, such orders cannot shut down any part of the operation and only set the stage for judicial review of the validity of MSHA’s demand and the penalty. Provide all records to MSHA immediately that are required to be created by the regulations (e.g. work area and mobile equipment inspections), but seek corporate approval for release of all other records requested and negotiate the extent of the requested records.
• OSHA has subpoena power and can issue or seek to enforce administrative (agency) warrants, but employers have the right to seek judicial review of the subpoenas and warrants, to narrow their scope and/or protect employer and personal rights.
• Employers and their agents have the right to consult with counsel or anyone they choose, before responding to OSHA or MSHA, or to interview or document requests. The company has the right to legal representation and consultation. Undue delay, however, should be avoided.

This is the first of a two-part article written by Henry Chajet and featured in the July issue of World Cement. Subscribers can read the full issue by signing in, and can also catch up on-the-go via our new app for Apple and Android. Non-subscribers can access a preview of the July 2015 issue here.

Read the article online at: https://www.worldcement.com/the-americas/07072015/knowledge-is-power-part-1-116/