About Anthony David Tilton

Anthony David Tilton is a construction-law associate with Trent Cotney P.A, Tampa, Fla. He works primarily on matters relating to OSHA defense, construction litigation and arbitration, licensing and building code-violation defense.

A Roofer’s Guide to Safely Navigating the OSHA Employee Interview Process

The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

OSHA is asking questions. Are your employees ready to answer? When OSHA visits your next job site they will undoubtedly engage in what is known as the “Employee Interview” stage of the inspection. This is the part of the OSHA inspection where the compliance officer has the right to take your employees aside and interview them regarding company safety and health policies. The inspector will attempt to question your employees on everything from fall-protection equipment, company-training practices and site-specific hazards. If your employees are prepared for these interviews and remember they have certain fundamental rights the OSHA inspector may not violate, your company has a much better chance of avoiding costly OSHA citations.

What Will OSHA Ask My Employees?

The OSHA inspector will without hesitation ask your employee if they have been trained on fall protection. The inspector will ask very specific questions regarding how the employee was trained, who performed the training and how often this training occurred. Employees need to be prepared to answer these questions, and company training policies should allow the employees to tell the inspector they are frequently trained by the company’s safety director or a third-party safety consultant. The employee should also be able to tell the inspector that he or she was trained once upon hire and retraining occurs at least once a year. Additionally, the employee will need to advise the inspector about any videos or lectures they are required to attend to complete the company’s training program. It will further support your defense if the employee notifies the inspector about any weekly toolbox talks or routine safety meetings they are made to attend at specific jobs.

All roofers should also be able to recite OSHA’s fall-protection standard. This has become a major source of citations in recent months and is easily preventable if employees are prepared for the OSHA interview. The employees must report to the OSHA inspector they are fully aware of OSHA’s regulation requiring the use of fall protection at heights of 6 feet or more above a lower level. It is not necessary for employees to identify the exact provision within the Code of Federal Regulations, but they must be able to tell the inspector they are trained to recall that regulations exist that require all employees working on a surface with unprotected sides and edges at 6 feet or more above a lower level be protected from falling by the use of a fall-protection system. The magic words required to support your company’s defense against this type of citation are 6 feet. The employee must tell the inspector they always wear fall protection when working at a height of 6 feet or more.

Another favorite interview tactic of the OSHA inspector is to question an employee on the dangers of a fall. Often times this question is so alarmingly simple roofers have trouble giving OSHA the correct answer. If OSHA asks employees if they are aware of what happens if someone falls from a roof, the best possible answer will always be to inform the inspector they have been trained to recognize death or serious injury can occur from a fall. If an employee makes the mistake of reporting to the inspector that falls are not always dangerous or that roofers can some-times survive a fall, there is a strong chance the company will be cited for an inability to properly train employee on the hazards associated with a fall.

OSHA inspectors also prefer to ask employees if all falls are preventable. Most roofers would immediately reply that falls are preventable but construction is a dangerous and high-risk profession. This is not the answer your employees should provide to OSHA. The administration wants to know your employees are trained to recognize the fact that all falls are preventable. An employee should never tell OSHA that injuries are an unpreventable reality on a construction site. If OSHA inspectors ask your employees if falls are preventable, the answer should always be to inform the inspector that all falls are 100 percent preventable.

Must My Employees Speak to the Inspector?

OSHA has what is referred to as administrative probable cause. This gives OSHA the legal right to enter your job site and begin an inspection. OSHA’s powers essentially allow the administration to conduct inspections at almost any active place of employment. However, these powers do not give OSHA inspectors the right to detain or hold anyone for questioning against their will. The employees’ participation in the OSHA inspection process is completely voluntary. An employee may, under their own free will, choose to speak to the inspector, or the employee may choose not to speak to the inspector. It is very important to remember that an employer must never instruct, order or command an employee not to speak with OSHA inspectors when they arrive onsite. However, the employer has the right to educate his or her employees that no one is required to speak with OSHA if they elect not to.

How Long Can the Inspector Speak to My Employees?

If your employees voluntarily choose to speak to the inspector, the interviews must be completed within a reasonable amount of time. The Occupational Safety and Health Act states the interviews are to be completed in a reasonable manner. Additionally, OSHA’s Field Operations Manual conditions that interviews are to be as brief as possible. With such open time limitations, there have been varying arguments by OSHA and employers as to exactly how long an OSHA inspector may speak with an employee. It is traditionally accepted OSHA may take no longer than five to 10 minutes for field interviews with company employees. This amount of time can be less or more, depending on the type of investigation, knowledge of the employee, or if the inspection involves any injuries or fatalities. It is highly recommended the employees know their rights before speaking with the inspector. These rights include the employee’s ability to stop the interview at any time if he or she feels uncomfortable or believes the interview has gone on too long.

Can Our Company Attorney Be Present?

In almost all investigations, non-supervisory employees must speak to the inspector without the assistance of counsel. Supervisors, crew leaders and foremen are all entitled to an attorney during their interview because of the supervisory nature of their position. Administrative case law has held that any employee who has been granted authority over other employees is considered a supervisor. This authority has been defined as any time an employee is granted the ability to control the method and manner in which he or she performs assigned tasks. Employees who are not given supervisory responsibility and who do not have the ability to control the method and manner of the assigned work may speak to the inspector in private. However, always recall the interview process is entirely voluntary and the employee may request a company representative attend the interview with them. This is very important and is often overlooked by companies during OSHA inspections. If the employee specifically and voluntarily requests the interview take place with a supervisor or attorney present, the OSHA inspector must submit to the employee’s wishes.

How Should an Employee Handle Questions Regarding Training?

Company safety policies and training programs should be comprehensive and effective at all times. These training sessions, retraining classes and field safety exercises should result in a roofing crew that can recognize all hazards relating to our industry. The employees should be trained on each and every safety protocol to prevent against these hazards. If company training programs address all these issues, the employee will have no problem informing OSHA he or she has been trained on all relevant safety regulations. An employer is almost guaranteed an automatic citation if an employee simply concedes to an inspector that he or she has never received training in an area of roofing safety.

Inspectors will ask employees very complicated and confusing questions on a job site. This has been a major factor in recent citations and has resulted in significant penalties against roofers across the nation. For example, inspectors will often use technical or scientific language in an attempt to confuse a roofing employee to the point where the roofer acknowledges he or she has never heard of such terms. This sort of behavior from OSHA inspectors should not be tolerated if your employees are properly educated and prepared for OSHA interviews. An employee should not be coerced into telling an inspector they have not been trained or do not recognize a specific safety hazard. Instead, the employee should inform the inspector the company’s training program includes all hazards a roofer could face on a job, and if the employee is ever unsure of how to handle a specific safety issue, he or she need only refer to the company safety manual, which is always on the job site in every company vehicle.

When OSHA arrives at your next project, remember the roofing contractor who has properly prepared his or her employees for OSHA interviews will prevail. Today’s contractors must consistently defend their companies against OSHA and the federal government’s increasing involvement in the construction industry. However, a well-educated crew who has been informed of their rights with regard to the OSHA interview process can make all the difference when defending your company against an OSHA citation.

A Roofer’s Guide to Safely Navigating an OSHA Inspection

Almost every American can recite his or her Miranda rights. We have all seen enough cop dramas and world’s wildest police chases on prime-time television to know that when the police, FBI or other law-enforcement agencies get involved that we have the right to remain silent, and we know that everything we say can and will be used against us in a court of law. Unfortunately, many roofing contractors in the construction industry do not remember their rights when an OSHA inspector arrives at their job sites, and this can lead to hefty fines. It is very important for residential and commercial roofing contractors to remember OSHA inspectors are adversaries when they visit your job site, and they are not inspecting your equipment and interviewing the crew out of curiosity. When an OSHA inspector arrives onsite, he or she is usually there to gather evidence to issue a citation.

One of the most discouraging situations that we have seen from OSHA’s recent push for larger fines and more citations occurs when honest men and women in the roofing industry open their arms to OSHA inspectors who arrive at the job. Roofing contractors and their crews are not criminals, and most truly have nothing to hide. The majority of contractors in the industry are hesitant to take a firm stance against an apparently well-to-do government agent on their job site. However, a roofer who opens up and allows OSHA inspectors free and unlimited access to a construction site is making a costly mistake. Therefore, it is important to remember that when OSHA visits on your next project, there are a few key questions that every roofing contractor needs to be able to answer about the inspection.

WHY IS OSHA ON MY JOB SITE?

OSHA will investigate a job site for a number of reasons. Inspectors will show up if an employee has issued a complaint against you, if there is a recent fatality or if there is an imminent threat identified. However, in recent months, OSHA has been after
the residential and commercial roofing industry through a systematic targeting method. The dangers of fall-related injuries in the industry have been well-documented, and this has prompted inspectors in your area to be on the lookout for roofers. Additionally, roofers are the easiest to cite due to the fact that roofing is a highly visible construction trade and an inspector does not have to use much effort to determine the likelihood of a dangerous situation that needs inspecting.

DO I HAVE TO COMPLY? HOW SHOULD I COMPLY? WHAT HAPPENS IF I REFUSE OSHA ACCESS?

First and foremost, you need to know that OSHA has a legal right to inspect your job site. OSHA has what is called “administrative probable cause” to inspect and investigate your project. OSHA’s probable cause is more easily obtained than that of other agencies. An officer of city, state or federal law enforcement needs a much more specific probable cause to enter a private citizen’s property. When an active construction job is taking place, there is an inherent risk of danger and injury, and this gives OSHA all the administrative probable cause it needs.

This is not to say that you or your site superintendent does not have the right to deny OSHA access to the project and demand that the inspector get a warrant. The site superintendent has the option to consent to OSHA’s inspection or deny the inspector access to the project. The superintendent is well within his or her rights to tell the inspector to get a warrant. This is not an easy fix, however. If you tell OSHA to get a warrant, it most certainly will. Because of OSHA’s broad power to oversee safety within the U.S., the agency can obtain a warrant from a judge or magistrate. Once OSHA obtains a warrant for a site inspection, its inspection can become much more invasive. This means OSHA inspectors can get permission from a judge to examine documents; conduct extensive interviews; and also perform scientific tests on items, such as air quality, presence of combustible material or any other danger.

The bottom line is that it is rarely a good idea to tell an OSHA compliance officer to get a warrant. The reasoning behind this has to do with the scope of OSHA’s inspection rights under the Code of Federal Regulations (CFR). The CFR demands that OSHA’s inspection be “reasonable.” This essentially means that the agency is limited to inspect only the men, equipment and materials that are within “plain sight.” “Plain sight” is a doctrine borrowed from criminal law and the Fourth Amendment, which says that a government agent may not sample or manipulate anything that is not within his or her reasonable line of sight. If an agent violates this doctrine, it is possible all the information he or she obtained during the inspection may be suspect.

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