by Rod Smith and Patrick Miller
As part of an ongoing series, OSHA UPDATE is providing information to employers on how to prepare for an OSHA inspection. Previous installments have included: "Selecting a Company Representative," "The Opening Conference and Records Request," and "The Walk-Around Inspection." This month we discuss employee and supervisor interviews.
OSHA interviews are one of the most critical aspects of the inspection. An alarming number of citations are based on statements of employees or supervisors to the OSHA inspector during the inspection or formal interviews. Advance preparation for these interviews can lessen a company's liability.
The guidelines for employee and supervisor interviews are different.
The OSHA Act gives employees the right to speak privately with OSHA. For that reason, employer representatives are generally not entitled to be present for non-supervisory interviews. "Non-supervisory" employees are typically defined as those without the authority to hire, fire, discipline or direct the work. Employers should be guided by their own determination of which employees are considered supervisory. In some cases, lead employees or foremen are considered supervisory employees, as are safety directors, salaried managers and professionals. Get advice from counsel if you are in doubt.
Even though employer representatives are not often present during employee interviews, they can and should take the following actions to prepare employees:
Inform employees that they have the right to speak or not speak to OSHA.
Inform employees they may request a representative, including a supervisor, a union representative, or an interpreter, to sit in on the interview. Understand, however, that OSHA may resist the presence of any employer representative during the interview.
Put employees at ease and give them a "heads-up" as to what the OSHA inspector is likely to ask. For example, employees are almost always quizzed on their safety training or facts surrounding any alleged violations.
Advise employees to tell the truth.
Intercede on behalf of employees who may be distraught or physically unable to speak with OSHA, particularly after a fatality or catastrophic accident. Employees and supervisors should not be interviewed until they feel they are physically and emotionally able to do so.
Inform employees of their right to request that they not be tape-recorded and that they have the right to bring their own tape recorder.
Conduct a voluntary debriefing of all employees interviewed by OSHA.
When informing employees of their rights and/or debriefing them, employers must avoid any pressure, coercion or retaliation. The OSH Act prohibits retaliation or discrimination against an employee participating in an OSHA inspection, including OSHA interviews. Always tell employees that it is their free choice as to how they wish to conduct their OSHA interview - you are simply advising them of their rights.
Interviews of management and supervisory employees are another matter. Unlike non-supervisory employees, the statements and admissions of a supervisor may legally bind the company. In responding to management interviews, the following guidelines should be observed:
- The employer's representative has the right to be present for supervisor or management interviews and should always exercise that right. In a fatality, catastrophe or other inspection involving significant liability, legal counsel should prepare and attend all management interviews. Besides providing moral support, the representative or counsel can assist the supervisor to make sure that questions are clearly asked and correctly answered.
- Where possible, minimize extensive management interviews by having the designated employer representative respond OSHA's to requests for information.
- Management witnesses should be prepared in advance as to possible subject areas during their interview, and the "do's and don'ts" for giving testimony, including just answering the questions, not volunteering, avoiding speculation and the importance of telling the truth.
- During the interview, or anytime during the inspection, avoid admitting violations or hazardous conditions.
- Supervisors also have the right not to be tape recorded, or to bring their own tape recorder.
- Signed statements are sometimes obtained by the inspector. Because these statements are drafted in the inspector's own words, counsel or the employer representative should make certain that the statements are correct in all respects before the witness is allowed to sign. Make sure that corrections are made as necessary.
Next Month, OSHA UPDATE will conclude this series with "The Closing Conference and the Appeals Process."
Who We Are
Rodney Smith, Pat Miller, and Chuck Newcom are part of Sherman and Howard's Labor & Employment Law Department practicing in the areas of occupational safety and health law. We routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.
For more information please contact one of the members of the OSHA Practice Group:
OSHA Update is published to provide information of general interest and not to give legal advice concerning any specific situation. Readers are welcome to copy or distribute OSHA Update articles for educational purposes. Credit given to Sherman & Howard L.L.C. is greatly appreciated. All comments are welcome.
©2009 Sherman & Howard L.L.C. February 20, 2009