Image by mohamed Hassan from Pixabay
Until the coronavirus pandemic and the draconian small-business economic measures unleashed by President Joe Biden after he seized the White House, small-business optimism had skyrocketed.
You might reall that was after the federal government rolled back workplace rules that were burdensome to entrepreneurs. That included members of the National Federation of Independent Business (NFIB).
The headline from NFIB’s May 2019 survey: “Small Business Optimism Roars Back, Rivaling Historic Highs.”
That’s right. Most small businesses enjoyed growth in earnings and sales.
It wasn’t coincidental that President Trump gave the keynote address at the NFIB’s 75th anniversary celebration in June 2018. The speech and audience reception signaled a warm relationship between small business and the Trump Administration.
Furthermore, the administration’s pro small-business attitude is pervasive among federal agencies, which is welcome news to entrepreneurs who felt over-regulated by the Obama Administration.
Accusations of OSHA abuse
A case-in-point: The Occupational Safety and Health Administration (OSHA), an agency of the U.S. Department of Labor.
Founded in 1971, the agency has great power. Admittedly, government oversight is warranted for worker safety.
However, some of OSHA’s actions were abusive for political gain during the Obama years, according to published reports in 2014.
Rep. Martha Roby (R-AL) accused the Obama administration of using the inspection powers of OSHA) to target non-union plants.
“Well, it came to light for us when we noticed that there were more and more stories being reported around the country where OSHA was designating union representatives to come along for inspections in non-unionized industry,” she said.
“At the same time, OSHA issued what’s regional emphasis program that targeted the automotive parts suppliers in Alabama, Georgia and Mississippi. And they did so without justification,” she added.
OSHA cozy with SEIU
In another controversy, OSHA allowed union organizers from the Service Employees International Union (SEIU) to accompany OSHA inspectors to at least one unsuspecting non-union business in 2013.
In an interview with then-Fox news host Greta Van Susteren, Brent Southwell, CEO of Professional Janitorial Service, declared SEIU organizers surprisingly accompanied OSHA to the business on three occasions.
Prior to the three visits, the company had not been cited with OSHA complaints.
Mr. Southwell told Ms. Van Susteren: “We have no problem with OSHA coming in. Our problem is when they bring in the union representatives to try to intimidate us and basically using government agencies to try to force us to become union.”
Ms. Van Susteren asked for comment from OSHA and the SEIU. SEIU declined to comment.
She published OSHA’s response:
In a written statement, OSHA saying in part allowing non-employee third party representative to accompany OSHA inspectors on walk around inspections is not a new OSHA policy. “OSHA’s long-standing regulations interpreting the law the states that representative can be a third party if that third party representative is necessary to conduct a thorough investigation.”
Ultimately, Mr. Southwell got his vengeance over SEIU’s hardball tactics. The tactics proved to be costly for the union in Sept. 2016 when it lost a mega lawsuit to the business owner (Jury finds against union, awards $5.3 million in damages to cleaning firm).
Your rights vs. OSHA
OSHA warrants the attention of small businesses. In checking Google News, there are nearly 300,000 search results for OSHA.
An IndustryWeek article, “Exploring the Limits of OSHA’s Inspection Authority: A Precursor to Exercising Your Rights,” caught my eye. It was written by an attorney, Michael Rubin, at Goldberg Segalla LLP.
What are your rights if you get a surprise visit from an CSHO – a compliance safety and health officer?
Not to oversimplify issues with OSHA, and I urge you to read the full article, here are excerpts from what Mr. Rubin wrote:
To Consent or Not to Consent
In most cases, the CSHO will arrive without a warrant. Since the CSHO is dependent on your consent for the inspection to proceed, this provides an opportunity (prior to consenting) to negotiate a reasonable scope and reasonable conditions for the inspection. If you succeed in this regard, it would usually be advisable to consent. Indeed, if you don’t consent, you risk the loss of any potential “good will” that could have otherwise been created during the process and also lose control over the scope of the inspection.
In addition, it may be a signal to OSHA that you have something to hide.
Importantly, an employer has the right to request that the inspection not proceed until a specific employer representative appears at the site.
Maximizing the Utility of the Opening Conference
The first stage of an OSHA investigation is the opening conference. At the opening conference, the CSHO is required to explain why the employer is being inspected, including whether it is a programmed or unprogrammed inspection. Unprogrammed inspections are usually of a higher priority and may be triggered by imminent dangers, catastrophes, fatal accidents, complaints, or referrals. If the inspection is due to an employee complaint, the CSHO is obligated to provide the employer with a copy of any written complaint (without the name of the complaining employee). The CSHO is also required to describe the intended scope and duration of the inspection.
Notably, Section 8 of the Occupational Safety and Health Act states that inspections must be conducted in a “reasonable manner” during “regular working hours.” In so keeping, you have the right to insist that a reasonable scope and protocol be established for the inspection.
Requests for Documents
With respect to any additional document requests, an employer has the right to (and should) request that the requests be put in writing and all be directed to a single management representative. This management representative should be the same person to provide the records to the CSHO. This is important and serves to manage and control the inspection.
Of course, any privileged documents should not be produced. Also, copies should be kept of everything produced.
Employer Involvement in the Walkaround
The walkaround is the actual inspection. During this phase, the CSHO will walk the site, gather evidence, and seek to identify potential safety and/or health hazards in the workplace. The CSHO is authorized during this phase to take photographs, videos, and measurements; collect environmental samples; and employ other reasonable investigative techniques. Importantly, both an employer representative and an employee representative have the right to accompany the CSHO at all times during the walkaround and duplicate any investigations conducted by the CSHO, including taking side-by-side photographs, videos, measurements, and samples. This should be done.
Notably, when an employer identifies an operation or condition as a trade secret or confidential business information, OSHA is required to treat it as such and keep the information confidential.
Restrictions on Employee Interviews
Although the CSHO is entitled to interview your employees as part of any inspection, there are certain restrictions–employees are not “fair game” to the extent you might think. First, a notable distinction exists between hourly employees and those in management. Although the CSHO may interview hourly employees privately (and may insist on doing so), an employer representative has a right to participate in all management interviews, in part because any admissions made by management may be attributed to, and used against, the employer.
In addition, hourly employees do have the right to request that a personal attorney or union representative be present during their interview. If honored by the CSHO, this would negate any private interview of the hourly employee.
Again, these are only excerpts. You are urged to read the full article. It explains OSHA’s inspection authority and your rights.
Mr. Rubin is special counsel in the OSHA and Worksite Safety Practice Group at the law firm Goldberg Segalla. He is co-editor of Goldberg Segalla’s OSHA: Legal Developments and Defense Strategies blog.
From the Coach’s Corner, more information on dealing with the government:
HR Tips to Avoid Legal Hassles with Immigration and Customs Enforcement — Employers have been having problems with the U.S. Department of Homeland Security’s Immigration and Customs Enforcement.
Tips on Understanding the Mindset of IRS Auditors — An IRS audit is enough to make you tense with cold sweat in the palms of your hands. More businesspeople have complained to me about the mean-spirited treatment at the hands of IRS agents than any other federal agency. Worse, the agents’ frequent lack of common sense is shocking.
Don’t let Minimum Wage Mandates Ruin Your Business — Your cash flow, credit access, pricing and profit margins are all directly or indirectly at-risk with the proposed mandates to increase the minimum wage. Workers should be paid well, if they’re good performers.
“Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master.”
-George Washington
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