The purpose of this paper is to confront the legal limitations of how a company can and cannot respond to an Occupational Safety and Health Administration (OSHA) investigation. At the outset, some employers may question when it is appropriate to deny OSHA access to the workplace. Strategically, an employer may have reasons to delay an inspection, but must understand what can happen with future inspections. As such, we will discuss OSHA's warrant power and its ability to obtain anticipatory warrants for future inspections based on a company's refusal to permit OSHA on the property without a warrant.
Once OSHA begins an inspection, questions arise as to what OSHA legally is entitled to inspect. Readers will learn the "plain view" concept borrowed from criminal search and seizure law that allows OSHA to issue citations for any issues in plain view. When OSHA requests interviews, readers will learn when an employer can insist on its counsel being present. In turn, we will study what ramifications exist to employee representatives making statements without counsel present. Additionally, our overview will include when, if ever, an employer can obtain copies of these statements. This paper will also address how these issues differ in regard to supervisory interviews and statements, and how supervisory statements can bind the company under vicarious liability theories.
A related issue is what documents OSHA may obtain during an inspection and before litigation. Among other thorny issues we will tackle is the question of when OSHA may obtain internal audits and investigations. As such, this paper will examine how to conduct a privileged audit, and the role of counsel in securing a privileged audit. Of related importance is when a company may wish to waive the privilege of a properly done audit that is subject to attorney-client privilege.
Finally, when an OSHA citation is issued, numerous questions arise in terms of what defenses may be available, which must be timely raised or risk waiver. This paper will present a general overview of these defenses.
In all areas, this paper will provide an overview of what the law provides, what gray areas exist, and what are prudent and responsible strategies in permissibly defending against an OSHA citation.