When inspectors come knocking, don't run away
By Jennie L. Phipps • Bankrate.com

One of the most nerve-wracking days in a small-business person's life is when an Occupational Health and Safety Administration inspector knocks on the door and says, "I'd like to take a look."

"Most people are scared out of their minds when the OSHA investigator shows up," says Ian Meklinsky, a labor lawyer and partner in Fox Rothschild's labor and employment department, based in the greater Philadelphia area.

"There's no notice. They don't want you to correct what they're looking for. In fact, there are criminal penalties for them if they notify you that they are coming. There is a veil of secrecy."

But you don't have to let the unexpected visit catch you off guard. In the event of an OSHA inspection, Meklinsky has these suggestions:

Put somebody in charge of this eventuality.
If you're not around, there needs to be a designated hitter who will respond intelligently and courteously. Cleaning up the mess after somebody wings it is the biggest problem Meklinsky faces when called in after the fact.

Check credentials.
If someone knocks on the door and says he's from OSHA, don't take his word for it. Whether you have patents, trade secrets or just modern-day security concerns, you don't want just anybody walking through your facility. If his credentials don't satisfy you, call the local office before you let him beyond the waiting room.

What's it all about?
Ask the inspector to tell you his area of concern and what in particular he's looking for before you answer questions or take him on a tour. A complaint call usually is what brought the inspector. While he won't say who called, he will outline the issue.

Less often, OSHA does programmed inspections based on industrial classification codes. It's possible that your number just came up.

Don't demand a court order.
The inspector won't have any trouble getting one quickly, and all you'll do is antagonize him. If you're uneasy and your attorney can come quickly, give him a call.

Keep the visit focused.
Once you've identified the problem, answer only the questions the inspector asks. Don't volunteer additional information. And show him only the affected area of your building. If you can avoid walking him through the rest of the facility, do so. This will help guard against anything that might enlarge the investigator's enforcement effort.

"This isn't designed to impair the agency's ability to get to the bottom of the issue," Meklinsky says. "It's simply avoiding raising new issues."

Do what the inspector does.
If he takes pictures, you take simultaneous pictures of the same thing. If he measures, you measure. If he does an air-quality study, bring in an expert as soon as possible -- that day preferably -- to repeat the study.

"People can make mistakes," Meklinsky says. "You need to be able to defend against citations and penalties. Whether it's an informal fight or a court battle, if you aren't armed with your own test data or photographs, it is hard to argue that the agency's determination is wrong. And it will be even more difficult to convince a jury that the testing is wrong."

Dealing with a death.
The worst that can happen is a fatal, industrial accident. If one should occur at your company, OSHA will conduct an investigation within eight hours. You'll want at least one experienced employment lawyer on hand who can deal with OSHA as well as the police and prosecutor's office. Sometimes its helps to have a second attorney to sit in on conversations with concerned employees.

Consider your alternatives.
After the inspection, the OSHA official will hold a closing conference. He'll outline the problems and tell you to expect correspondence from the agency. A notice of citation and a proposed penalty will arrive shortly.

Meklinsky cautions against automatic acquiescence: "You ought to consider the issue in the context of its legal implications." Sometimes the penalties may seem small, but they may trigger action from another agency, and if you're not prepared to change the way you do business, subsequent penalties will increase dramatically. So what may at first seem like an expensive fight to prove your company's innocence, says Meklinsky, may actually turn out to be a far less-costly route.

Don't let the time get away from you.
If you decide to fight a citation, OSHA gives you 15 business days to contest it. A request for a settlement conference to discuss the issue with the agency doesn't stop the clock. Unless you're certain of the conference outcome, prepare the necessary paperwork to contest the citation immediately.

Jennie L. Phipps is a contributing editor based in Michigan.

-- Posted: Jan. 25, 2002