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Fantasy Impromptu: New Wave of Safety and Workplace Inspections Hits Employers

By Larry Edelman, CPCU, CSP

In California, state labor department inspectors have teamed with Cal-OSHA compliance officers to perform joint work site inspections. These duos often appear unannounced at facilities and construction sites to perform safety compliance inspections and audits.

The emphasis of such inspections appears to be focused on labor and OSHA compliance in the construction industry, but other industries also have been targeted. And California employers aren't the only ones who are surprised--these unexpected visits can happen in other states, too.

Unannounced inspections do not appear to be in response to a filed complaint or particular violation. Instead, they usually tend to focus on

• Status of subcontractors as legitimate and independent contractors. Workers are interviewed as to their specific job descriptions, hours worked, and corresponding pay. Violations of contractor viability versus exclusive employment are cited, as are hourly pay and overtime violations.
  
  
• The OSHA compliance officer performs the usual inspection and interviews as required and, if applicable, issues a preliminary citation list.

Official citations, fines, and/or restitution demands are sent to the responsible party, usually within six months of the visit.

Are These Really "Impromptu" Visits?

Not unexpectedly, employers question why they were singled out for inspection or audit. Was there an injury reported? A violation or unsafe working condition? A general complaint? The answer of most labor inspectors is something to the tune of "We were in the area and decided to stop by."

Our take is that such impromptu audits and site inspections are not random nor unplanned at all, but rather on-the-job training for new inspectors, not unlike a "cold call" by a salesperson.

How to Deal with an Unexpected Visit from OSHA

Obviously it is an employer's duty and obligation to comply and follow all rules, regulations, and laws, especially those governing worker safety and welfare. Yet considering an employer's myriad responsibilities, surprise visits from regulators—especially when no obvious violations or injuries exist—are intrusive, non-productive, and distracting.

The best remedy in dealing with regulators is to be compliant in all areas and to be knowledgeable as to the law and the employer's rights. Employer should know that

• Employers are not required to admit such inspectors immediately if there is no specific complaint.
  
  
• A scheduled appointment for a future visit at a more convenient time is usually honored and customary. By doing so, the employer can avoid disruption of operations and assure that appropriate management staff will be present to answer questions.
  
  
• If a request to reschedule an inspection is refused, entry by the inspectors can be delayed for one hour while a management and/or safety person can be contacted to be present for the inspection.
  
  
• Upon receipt of any formal citation, the employer has the right to request an informal conference with the district manager and citing inspector as well as the right to request an appeal with an administrative law judge (ALJ).

These processes in dealing with official inspections can vary from state to state as to timing and levels of appeal. Some states have their own OSHA programs; the remaining majority of states follow federal OSHA guidelines as required.

Conclusion

Government regulatory agencies share information and work together when it is in their best interests to do so. Because this cooperation is active and energized down to the local level, employers must stay informed on employment practices and employers' rights. Employers should be prepared for surprise visits by designating and training a supervisor at each job site who can deal with regulators while management and/or the employer's safety personnel is informed of the visit. If management cannot respond timely to the job site, these supervisors can escort the regulators on their inspection.

Most employers value their employees and work diligently to provide safe working conditions, observe all regulations pertaining to their business, and provide fair wages and benefits. By doing this, employers can avoid fines, work cessations, and other interruptions due to regulatory intervention.

ABOUT THE AUTHOR

Laurence D. Edelman, CPCU, CSP, is a Senior Safety Consultant with Warren, McVeigh & Griffin, Inc., an independent risk management consulting firm in Newport Beach, California. As a Certified Safety Professional (CSP), Mr. Edelman's consulting activities include a wide range of specialized safety and loss-prevention assignments, including regulatory liaison, developing and auditing written safety loss prevention and crisis management programs, performing OSHA-compliance inspections, and training employees.

riskVue | The webzine for risk management professionals
July 2007