What are the most common, and the most effective, ways for a company to have big problems with OSHA? We asked more than a dozen experts, and found a surprising consensus.
Smart people learn from their own mistakes, it is often said, but smarter people learn from the mistakes of others.
With this in mind, we polled former OSHA compliance officers, lawyers with OSHA experience, consultants and safety managers to discover the best ways for companies to create problems for themselves with the agency.
What follows are, in ascending order, the 10 errors most often cited by our panel of experts.
As might be expected, we found a range of views reflecting their diversity of experience. Remarkably, however, determining the best way to get into trouble with OSHA was easy: there was one, and only one, mistake brought up by everyone we interviewed.
Show OSHA You Don't Care
10. Ignore industrial hygiene issues.
"Most of the focus at companies is on day-to-day physical safety," explained Jim Lastowka, an OSHA practice attorney with the Washington, D.C. law firm of McDermott, Will & Emery. "You can't see exposure issues, but you have a lot of opportunity to get into trouble here, and it can affect many workers."
A related, though arguably a separate, issue mentioned by several experts is failing to have a system to monitor and document the safety and health of employees.
9. Don't enforce safety rules.
Safety rules and procedures must be published, understood, enforced and accepted by everyone from the CEO to the custodian, according to David Welch, a chemical engineer with 36 years of experience who now works as a consultant at Welch & Associates in Plantation, Fla. Be sure also to document your enforcement efforts. In the event an employee is hurt while breaking the safety rules, OSHA will want proof you take your own rules seriously enough to discipline those who break them.
"When I was at OSHA, I'd see the prettiest safety manuals you can imagine," said industrial hygienist Chris Mancillas, a former OSHA compliance officer (CO) who now is a loss control and safety consultant at the McCart Group, a risk management and insurance agency based in Duluth, Ga. "It would keep you busy for a while, but then you'd go out on the floor and it was a totally different story." Not abiding by a written safety program can be worse than not having one at all, because it can lead to willful citations, he added.
"I've seen lots of problems with this over the years," said Reginald Jones, a lawyer with 25 years of labor law experience in the Washington, D.C. office of New York-based Coudert Brothers LLP. One particularly common mistake is not to enforce the use of personal protective equipment (PPE). "Companies are good at figuring out what kind [of PPE] there should be and making sure they have it, but absolutely lousy at making sure employees wear it."
8. Don't take a systematic approach toward safety.
Here's how Lastowka put it: "Just assume safety will happen automatically." That's a big mistake, he contends, because it takes planning, anticipation and building a management system to keep you out of trouble.
"An OSHA officer can see right away if you don't place a priority on safety," according to Mancillas. "What are you doing to prevent injuries and illnesses? Do you have an injury and illness program? What role does management play? You need to have some way of showing an OSHA officer how important safety is to you. That was my number one thing when I was an OSHA CO."
7. Don't use appropriate engineering controls.
OSHA wants you to try to make the workplace safe for employees, but many employers try instead to make the employee safe for the workplace, contended industrial hygienist Adrienne Markowitz. Currently president of Compliance Works, a consulting organization located in Dayton, Ohio, Markowitz has also worked for the state of New Jersey, county governments and private sector employers.
During an inspection, OSHA will look to see if you can document that you have made a good faith effort to use engineering controls, particularly for noise and other health hazards.
"An excessive reliance on PPE annoys OSHA," asserted former CO Mancillas.
6. Conduct a safety audit, identify a serious hazard and do nothing about it.
"This is at the top of my list of how to create a big problem with OSHA," said Mark Dreux, a lawyer in the OSHA practice group of Arent, Fox, Kintner, Plotkin & Kahn. "If OSHA discovers you have ignored a serious health or safety hazard you know about, you are encouraging them to give you a willful citation."
Before undertaking a safety review, companies must be committed to fixing whatever they find, he added. Although OSHA does have a new "safe harbor" policy that supposedly protects a company's audits, Dreux thinks "it's got holes big enough to drive a truck through." All an employee has to do is mention the audit during an OSHA interview, he explained, and the agency can go after the audit.
Washington attorney Eric Berezin, a partner at Atlanta-based Powell, Goldstein, Frazer & Murphy, advises against putting in the audit any speculation on worst-case scenarios. "Stick to the facts, and imagine that audit in front of a jury, because it could happen. We see this all the time."
Don't Prepare for an OSHA Inspection
5. Fail to control the flow of information during and after an inspection.
Once OSHA begins an inspection, be sure not to hand over any information not asked for, and keep tabs on everything you have turned over to them, said Berezin. "If you lose control over the information flow, it can hurt you at the end of the investigation when it's time to settle."
At the same time, Stephen Yohay, an attorney in the OSHA practice group of Arent, Fox, Kintner, Plotkin & Kahn, advised against withholding documents OSHA requests without a good reason.
Another mistake is to conduct an internal investigation without the benefit of attorney-client privilege. "Do your own investigation without this privilege and you can't protect it from the government," said Berezin.
"I believe that one of the major mistakes made by companies during an OSHA inspection is to allow pictures or videos to be taken," Glen Feeney, an authorized OSHA instructor and consultant at Safety First Consulting of Maryland Heights, Mo., told Occupational Hazards. The OSHA rule on inspections is that anything seen in the "line of sight" is fair game for a citation. By allowing inspectors to take pictures or videos, you give them a second chance to spot a violation they might have missed when they review the pictures or videos at their office.
4. Don't correct hazards OSHA has cited you for and ignore commonly cited hazards.
Having a history of repeat violations is a good way to get a willful citation, according to Henry Chajet, a partner at the Washington, D.C. law firm Patton, Boggs, who has practiced OSHA law for 27 years. "In lawsuits, it's always about good faith," said Chajet. "If you can't show what you did to address a known hazard, you're a bad guy."
Should anyone be hurt as a result of a hazard not addressed after an OSHA citation, a company can be in deep trouble.
In addition, several experts said companies should not ignore the most frequently cited OSHA violations, such as: hazard communication, machine guarding, trenching, lockout/tagout, slips, trips, and falls, and electrical hazards.
Mancillas offered some common sense advice: Every employer should go to the OSHA Web site, type in the appropriate standard industrial classification (SIC) code, and discover the top 10 standards for which OSHA is citing your industry. And then make sure you're in compliance.
3. Keep inaccurate OSHA 300 logs and have disorganized safety files.
"After 24 years in safety and numerous OSHA inspections, I believe the most important thing when dealing with an inspector is keeping good files," observed Jeff Rothgeb, safety and environmental coordinator at the Erie, Pa. plant of St. Louis-based food processor Aurora Foods Inc.
Rothgeb suggested keeping the OSHA 300 log and the 301 form separate from other records that OSHA does not require for documentation of an injury, such as internal correspondence or medical records. "Taking these steps can make a world of difference with the inspector and also makes you look better with the boss," Rothgeb told Occupational Hazards.
"Your OSHA 300 log is the first thing OSHA will ask for in an inspection," said Mancillas. "When you have poorly maintained records, you can get into trouble."
OSHA just changed the recordkeeping rule, so a lot of employers may not realize they have problems with their recordkeeping. "We've got some clients with recordkeeping citations right now. We see this as a growing problem," said Dana Rust, a lawyer with 15 years of OSHA experience who is a partner at McGuire, Woods LLP, in Richmond, Va.
Not keeping an accurate 300 log is the most common way companies get into trouble with OSHA, according to Markowitz. "If you don't keep proper records, you are immediately in trouble with OSHA, whereas if you do keep good records and they find out you have few injuries and illnesses, they may not do a full investigation."
Having a good handle on your records extends beyond the OSHA 300 log, however. Many OSHA standards, such as hazard communication and lockout/tagout, require a written program or documented policies and training procedures. "If you have these readily accessible, it gets you off to a great start," commented Berezin. "If you fail to have your training documents organized and up to date, that's a bad signal to OSHA."
2. Antagonize or lie to OSHA during an inspection.
Doing anything OSHA construes as lying, misleading or falsifying records is the absolute worst thing a company can do during an OSHA investigation that follows an accident, according to Chajet. "These are all felonies, and probably the leading cause of criminal prosecution in occupational safety and health," he said. "An OSHA violation itself is at worst a misdemeanor, so now you have committed a felony to escape a misdemeanor."
Demanding a warrant, or giving OSHA the run-around during an inspection, can have other bad effects. "I've seen unnecessary delay, and I've felt like I was misled," said Mancillas. "It didn't help at settlement when it comes to giving a discount for fines."
Some employers make the mistake of thinking if they stall OSHA, they can fix problems. "That's almost never successful," said Chajet. "The first thing OSHA will do when they come back is interview employees and ask what they've been doing in the interim."
But Chajet cautioned that a company can also get into trouble by being too cooperative with OSHA. "OSHA will never read your Miranda rights, but you have the right to remain silent," he said.
When government officials go to regulatory enforcement school, they are taught to investigate as soon after an accident as possible, as it is easier to play on emotions and guilt to get people to make admissions. "Untrained corporate officials can do tremendous damage if they don't know their rights, and don't know when to talk and when not to talk," said Chajet. His advice: make sure whoever will be on site to deal with OSHA spends two to three hours learning the process. "It's not hard to cooperate fully with investigations without hurting yourself, but OSHA will try to intimidate you."
And the Winner Is...
1. Ignore or retaliate against employees who raise safety issues.
"Ignoring employees' safety concerns is an excellent way to provoke an OSHA inspection," commented Arthur Sapper, a member of the OSHA Practice Group of McDermott, Will & Emery.
Mancillas worked on an OSHA complaint desk, and he explained that when a worker called in with complaints, "we would ask if she had told her employer about it, and if she hadn't, we would ask her to do so. But if she said she told her employer and was ignored, we placed a higher priority on investigating that complaint."
Conversely, several experts emphasized the importance of employee participation in safety efforts, and of documenting this participation. "Do employees have a say in your safety program?" asked Ken Dawson, senior loss control consultant at Marsh USA, a New York-based insurance and consulting firm that is part of Marsh & McLennan Companies. "Employee participation is really coming to the forefront of OSHA's monitor screens."
Being able to show records of activities such as regular meetings of employee safety committees, training exercises, and employee involvement in hazard identification can all help to prove the company takes safety, and employee participation, seriously.
Bad relations with hourly employees can cause huge problems during an OSHA investigation, according to Berezin, even if the issues are not safety-related.
"They can save you or sink you during an investigation," he explained. If hourly employees tell OSHA, 'This is a great place to work,' the agency will rely on that." OSHA employees are very worker-oriented and cannot always distinguish between genuine and trumped-up complaints, according to Berezin.
"Those who have gripes with a company will use an investigation to air dirty laundry, even if it has nothing to do with safety. This happens more often than you might think," said Berezin. "If they tell OSHA, "This is a hell-hole and we've been telling them that for years,' OSHA will rely on that, and then you're really in trouble."
So, if you really want to have problems with OSHA, the next time an hourly employee raises a safety issue, fire her.
Sidebar: Just Kidding Top Five Ways to Show OSHA You Care About Safety
In keeping with the comedic origins of 'top 10' lists, we asked our experts to come up with some humorous ways to get into trouble with OSHA. No one could top the list provided by Jim Weaver, senior risk control administrator at Hallmark Cards.
5. When kicking off your wall-to-wall inspection, tell the inspector you don't use PPE in your facility because it's too expensive.
4. Tell the compliance officer looking at your mass of exposed nip points on your machinery that band-aids and stitches are cheaper than machine guarding.
3. When the compliance officer comments how bad the housekeeping is in your front office area, tell her "Wait until you see the maintenance shop!"
2. During your walk-through with the compliance officer, when a forklift speeds by with an employee "surfing" on the raised forks, yell "COWABUNGA!"
1. When the compliance officer asks for your OSHA logs, ask her if she wants the real logs or just the ones you send into the Bureau of Labor Statistics.