You know that if injuries or a fatality bring OSHA to a workplace, its inspection won’t necessarily be limited to conditions involving that particular incident. Despite that being common knowledge, a Nebraska company is fighting OSHA’s attempt to interview two of its managers.
A lawyer for Farmers Cooperative Co. in Talmadge calls OSHA’s attempts to interview its manager and assistant manager about safety practices not connected to the death of an employee a “fishing expedition.”
Here’s the history behind this case:
Employee Roger Teten was killed on Jan. 29 after a truck backed into him.
In May, OSHA sent subpoenas to the two top managers, leading to a deposition on June 5. The managers answered questions about Teten’s death at the deposition.
However, when questions turned to other safety matters at the cooperative, company lawyer James Luers told the two managers not to answer them. Luers said the additional questions would only lead to more OSHA citations.
(Actually, it would only lead to more OSHA citations if the answers to the questions pointed to any additional violations.)
A document obtained by the World-Herald News Service quotes Luers as saying, “Every time the management has interviewed in the past, they (OSHA) utilize that interview to support their citations. And quite frankly, it’s unfair.”
In response, OSHA noted it has broad investigative powers, and the OSH Act allows use of the federal court system to enforce OSHA subpoenas. Ignoring OSHA subpoenas can lead to a finding of contempt of court, which then can lead to fines and jail time.
Luers said the basis for his objection to further questioning of the two managers was the Fifth Amendment, the right against self-incrimination.
OSHA noted there are no criminal charges in this case, so the Fifth Amendment doesn’t apply.
The whole thing is now in the hands of a federal judge.
One note: Farmers Cooperative says, on the matter of the employee death, it’s been working completely with OSHA. Luers says it’s turned over all sorts of documents about the death and the two managers answered questions in June for three hours.
Difficult for employer to win
The OSH Act says OSHA can obtain information from employers provided the investigation is within the agency’s authority, which has been interpreted by at least one federal court as relevant to any inquiry OSHA is authorized to make.
Therefore, it’s unlikely an employer will win a challenge to the scope of a subpoena.
And, as OSHA inspectors have said publicly at safety conferences, if you really want to challenge them to find as many things to issue fines for, just stand in their way when they want to perform an inspection.
If it were easy to turn away OSHA inquiries, the standard advice wouldn’t be to be ready for OSHA to inspect your facility, even when you haven’t had injuries or a fatality.
For more information on OSHA, see Safety News Alert’s Recommended Safety Links page.