Webinar: What to Do (And Not to Do) When A Government Inspector Shows Up At Your Establishment

A car pulls up and federal agents get out of the car and head to your office.  Other than panic, what do you do?  What are your rights, and who should handle this?  This webinar will discuss what your rights are, how to handle the investigation, who should handle the investigation, and what people have done that is wrong.  You will probably not feel any better when that car pulls up but you will know what to do.

Presented by J. Larry Stine & Kathleen J. Jennings.

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Kathleen J. Jennings (00:00):
Everyone. Welcome to our August webinar presented by Wimberley Lawson. Today we are going to be talking about what to do when a government inspector shows up at your facility. And my name is Kathleen Jennings. I'm one of the attorneys here at Wimberley Lawson. Larry Stine is the other esteemed presenter in this webinar. And he is also someone who has had a vast amount of experience with these government inspectors, including one of, he is one of the few attorneys to successfully kick out OSHA inspectors who decided to overstay their welcome. So we can talk about that in a little bit. If you have any questions, please put them in the chat and we will try to answer them as best we can. And we h would love to get some feedback from all of you about how you enjoyed this webinar or didn't enjoy this webinar, or any suggestions as to how we could conduct it, or even more important suggestions for fu future topics that are important to you and your business. So, again, welcome and Larry and I hope to give you some useful information as to what you should do when a government inspector shows up.

J. Larry Stine (01:26):
As you can imagine, it's not a pleasant day when the government official pulls up into your parking lot and walks into the door and having surprise inspections is not that unusual. OSHA has a provision, the act that prohibits them from telling you to start with. You can tell from some inspections are gonna happen. You report a fatality you can almost count the next day or even later that day. OSHA will will show up. So we wanna talk a little bit about what you can do and what you can't do. So we're going to talk about the topics, but we'll mention the news the day and then answer your questions if you need to, to do that. So, but we'll, we'll go ahead and get started with the discussion. And the first part, so OSHA does not have to give advanced notice of an inspection. True or false?

Kathleen J. Jennings (02:37):
True or false? Everybody think about that. Do they have to give advanced notice of an inspection?

J. Larry Stine (02:45):
I am. They do not have to give advance on those inspection. Let me take this a little bit better. OSHA is peculiar. When Congress wrote the act, they made it a crime for OSHA to give advanced notice. That's the reason you don't get appointment letters. Other federal agencies don't have that. So a lot of times, for example, in a wage hour investigation, your first inkling that you're going to have a wage hour investigation is you receive a letter saying, Hey, we're coming out on such and such a day, and here's the documents we want you to have. But with osha, they're, you're gonna look out in your parking lot and you're gonna see a bland little GSA car drive up. And that's gonna be OSHA coming to see you. Like I said, sometimes you know they're coming cause you've got a fatality, you can count on it, you have a big accident, you know they're coming. Other than that, you don't know whether they're coming or not. Okay? Once, once inside your facility, an ocean inspector can go wherever he or she wants, true or false.

Kathleen J. Jennings (03:54):
And this is where talking about the actual law, not what the ocean inspector really thinks he or she can do, right. Larry

J. Larry Stine (04:02):
<Laugh>. That's right. They'll tell you it's false. They can't just go wherever they want with some small I'll talk about the exceptions for that rule. The way they do it. Now, typically, OSHA's coming in either on a complaint, a report of an amputation, or report of the hospitalization for a report of a fatality. They didn't used to do that, but when they changed the law about reporting and lowered the hospitalizations from three to one, and then added the amputations the entire way that OSHA conducted inspections changed up until that time, they had regularly scheduled selected inspections with wall to walls. They, but when the thing changed, they started being much more reactive, reacting to these points. The problem for Ocean doing that though, is when they come in with a administratively neutral plan, as the Supreme Court said in Barlow, they can do a wall to wall, but when they come in on a complaint, an amputation, a hospitalization, our fatality, their authority is to inspect for what happened for the fatality or for the hospitalization, the amputation.

J. Larry Stine (05:16):
And so they're not able to go everywhere. Now, some inspectors will push back on that really hard and some will not. When you have your opening conference and what happens in an inspection, investigators almost from every agency will sit down and have an opening conference and they're going to tell you what they're going to do. This is when you need to be able to find out what they're doing and how they're going to handle it. So if you have an ocean spectrum, they come in and they said, I got a complaint. And he said, okay, we'll go to the complaint area. And they says, that's grand. I'm leading my inspection to a complaint. And you can rest a little easy. But sometimes you say that and the inspector goes, no, no. I plan to do more than that. And then you need to know what your rights are and how to push back.

J. Larry Stine (06:03):
I will say that a lot of employers really don't like to push back on investigators. That's one reason. Sometimes we go there cuz it's our job to push back on 'em very politely, very respectfully. We don't disrespect them. We don't give 'em a hard time. But very politely and respectfully, we'll go, no, you're not, you're limited to the complaint and we're not letting you go anywhere. But the complaint area, and we've, we've made that stick a couple of times. As Kathleen says, on at least two occasions, they tried to expand it far beyond what they're, what they came in for. And one they came in where a guy actually stuck a screwdriver into electrical panel and had an arc flash in one area. Well, they came in, we let them do that, but the compliance officer wanted to do a wall to wall and we would not let her do it.

J. Larry Stine (07:03):
They came in with a warrant, we quashed the warrant and got OSHAs thrown out successfully. And because the litigation lasted two years, they never did come back and finish up what little bit they did win. They just gave up on it. So the other thing though, when you're pushing back, one of my favorite stories is I got hired by an employee I who had a fatality. And he and I had just met, I have driven down south of Georgia to go into his plant and he had some things in his plant I didn't want the compliance officers to see. And so the compliance officers came and they said, where this fatality, we're gonna do a wall to wall. And I said, no, you're not, you're limiting it to the fatality. And they said, well, it's our policy on to do a wall to wall.

J. Larry Stine (07:49):
And I said, well, why don't you call your office? Cause it was the Savannah OSHA office, which is the one I had just thrown 'em out a few months before and said, tell 'em I'm the lawyer to do crier. And so they went outside, they came back and they went, yeah, we'll do it. My client didn't know me for like three hours afterwards, came to me, he says, you no, when you told them no, I about had a heart attack, he says, and then you made 'em do it. So it was really strange. But you need to know your rights. You can do it, but it's uncomfortable for the employer to do it. That's one reason we can be in big help. But you can do it all right? Yes,

Kathleen J. Jennings (08:29):
Yes, yes. I, I've had, I've had ocean inspectors who've come in on a injury investigation. I can think of at least one who at some point just said, you know what? I'd like to expand the inspection. And I just politely said, no, we're not gonna consent to that. And so he calls his office this and that and ultimately he did not expand it. But yeah, the client gets a little nervous cuz a lot of companies feel like if, if we don't cooperate fully with osha, they're gonna do something really bad. Well the reality is you have constitutional rights when you deal with OSHA or any other governmental agency

J. Larry Stine (09:12):
Right? Now, the other thing that Kathleen, that you've raised is fully cooperate. And that's a real problem sometimes in the mindset. So I have a, as you recall, our name of our inspection is what to do and what not to do. So I'm, before we start on what to do, I want to tell the story about my client who will forever remain unnamed. Gave a prime example. And this story is true. It's so bad I didn't have to exaggerate anything. So I had a client that came in on the phone and said, oh, she was in the door to do a wall to wall back when they did wall to walls and could do it properly. And I said, okay, here's the things I want you to do. I said, I, wherever they, I said, you want me to come? And he goes, no, you're too expensive.

J. Larry Stine (10:02):
And I said, I understand. And you know that do not every time somebody wants an attorney there. So I said, what I want you to do is have two people go out with them, one to be a spokesperson, one to be a note taker. Every time they take a picture. I want you to take a picture from the east to west to south from the north. So I get 4:00 AM I said, and whatever it is. Cause I was talking to the president, I said, you don't talk to them because if you say something, it's really hard if you make a mistake for me to disavow. But the president says, you know, if an HR manager or a maintenance man says something, the president come in and said, no, that's not right. I'm not gonna undo it. And so go ahead and do that. I'm fine.

J. Larry Stine (10:46):
About six months later, which for OSHA's a very bad sign is the statute limitation for OSHAs six months. When they take six months, close to six months issue with citations typically going be big. And so the president calls and says he's gotten a citation from OSHA for a quarter of a million dollars. And this would be early nineties, so that'd probably be the equivalent. About three quarters of a million now. And I, my first question is, I said, okay, great. Can you send me the pictures you took? Cause it'd be very helpful for me to see the pictures. And he goes, well, we didn't take any pictures. I go, okay, so why don't you send me the notes? Then he goes, well we didn't take any notes either. I said, okay, didn't give a little worried. I said, let me talk to the guys that walked around with the compliance officer who went through your plant when he went, well, we decided not to have anybody walk through because we wanted to be fully cooperative.

J. Larry Stine (11:53):
We wanted to show that, that we were fully cooperating. And I said, any other thing you want to tell 'em? He said, well, yeah, I did talk to them a couple of times and you told me not to. I said, okay, so what happened after you got the $250,000? He says, well, when I got it, I sent a letter to the two senators and all the congressmen in the state and I called the area director of senate. And so I said, okay, good. And I picked up the phone to talk to the area director and I told him who represented, and I've known this area director for 20 years at the time. He said, Larry, I don't have anything to talk to. And he hung up on me. So being fully cooperative like that didn't really work. He ended up with a quarter of a million. We managed to knock it down to 75,000 at the time. But those are the things that you don't do. You don't truly, truly be fully cooperative in every way and just let them walk through your plan. You're just asking for disasters. So when, what happens when an ocean inspector or any federal inspector comes up have 'em show you their credentials? They certainly are there. They happen occasions when we've had sales people come in and pretend to be OSHA compliance officers to sell things. Believe it or not,

Kathleen J. Jennings (13:18):
That's, that's troubling

J. Larry Stine (13:20):
Actually. It is troubling, but it actually has, yeah, it actually has happened that a couple of salespeople and we would, we've we've had them investigated afterwards and they're, they don't do it again. No, your rights this is important because it, it is, they do have limits to what they can do. They don't have part blanche for anything and everything and every piece of record and every injure your plant, they just don't have it. They have to limit their inspections to the areas they're in for one thing. They can only inspect places that the courts have allowed under the fourth amendment. They, depending on what they're doing, like if they come in with a scheduled inspection for wall to wall, well then you're going to do it. It's, if it's a complaint, you're gonna limit it to a complaint. But you need to know your rights and you don't have to talk to them. You really don't have to say anything at all. And if you talk to them, one thing you have to do is you have to tell them the truth. You don't have to talk to 'em. And if you got something you don't want to tell 'em, don't tell 'em. But don't lie. This is not, it's not a crime. I'm not saying anything. It is a crime to say something wrong under what is it? 18 USC 1001. Did I get that right Kathleen?

Kathleen J. Jennings (14:53):
I think so. And also, you know, you have, in addition to the fourth Amendment, right, to you know, the government has to have some kind of probable cause in order to come onto and inspect your premises. And in the case of a complaint or an injury or something, that's their probable cause to get them on there. You also have a Fifth Amendment right, which is the right to remain silent. A lot of people don't always avail themselves of that right when they need to. And you have a right to have your company's attorney there. I know in the past we've had some ocean inspectors who've given some pushback on that because they don't, you know, they don't wanna have the attorneys there because we know what we're doing and we know what the limitations are on their authority. And you know, we've heard stories just as the one Larry told, where ocean inspectors show up and basically do what they want because the company doesn't know otherwise.

Kathleen J. Jennings (15:55):
And as a result, you end up with a citation that could have been avoided. So if you say you wanna have your attorney there and they say, well, why, you know, it's, and, and you see this sometimes law enforcement, why do you need an attorney? Have you done something wrong? No, I just, you know, feel more comfortable having my council here. And you know, then there's nothing wrong with that. So don't, don't give into the pushback. If you really wanna have your council there. And I know we have a number of OSHA area offices who when they're told that, you know, one of us is gonna show up, they understand that, you know, we're gonna show up and, and they can't do anything about it.

J. Larry Stine (16:37):
Right? Typically what happens is we tell the client, if they called us, and we do have some clients who have policies that we show up for every ocean inspection regardless, you can put 'em in a nice conference room. They would like to look at your OSHA 300 s and because there's a, a regulation that says you have to produce your OS 300 s within four hours and you can get a penalty. And we can't do anything with OSHA 300 s. They, they are what they are. We'll tell 'em, give 'em the 300 s, let them go in, look at them and we'll be on our way. One other thing I will say, when you put 'em in a conference room and we're on our way, this is a wonderful time for you to send your people back in the plant and look for the low hanging, what I call the low hanging fruit, which just means the obvious things like you go through and you got an extension cord where you shouldn't have an extension cord. You can unplug it in, remove it, or where you've got a, you go in and you've got a drain uncovered. Somebody's set aside the drain cover, you can put the drain cover back cause you can go through and find some of those low hanging fruits so that OSHA doesn't come in and, you know, hit you with a serious citation for not having a drain cover. The fines are now up for serious into the $14,000 range. So, wow.

Kathleen J. Jennings (18:01):
Yeah, yeah. Check your exit doors, make sure that they're not locked. Make sure your exit signs light up. Simple stuff like that. Do your, if you have eye wash areas, make sure the water comes out. You know, just, just simple stuff like that. Yeah, that's the low

J. Larry Stine (18:19):
You can and walk. Do it while you're waiting for us to get there. You'll get an hour or two while we, we get on, get on the way or whoever it is, whether it's us or the corporate safety director. If you use them as a person, you need to sign responsibility. So there's a couple of things that you need to think about. Okay, who's gonna be in charge of handling the ocean investigation? Who's gonna be person in charge? It can be an attorney, it can be your safety director, it can be the corporate safety director. I would not recommend your engineers. Engineers have this bad habit of wanting to explain everything and I just don't recommend them to be the talk the talker. So you got to have somebody in control. Have somebody that can do, be the talker with attorney, corporate safety director, hr, who's good at it.

J. Larry Stine (19:15):
You can have a maintenance guy or a engineer come, but their job is to observe, take pictures, take take notes. And the other thing is, if you have not been able to get all the low hanging fruit and the compliance officers mentioned that if you've got the maintenance guy or the engineer, you can have people nearby and get it fixed immediately. You will get brownie points. You may not even, sometimes they won't even cite you, but you will get brownie points for fixing the things so quickly cuz it, it gives a good first impression. So you need to have those people assigned and understand what's going on. So beforehand, before they show in, decide who's going to handle the overall, who's gonna be the person doing the talking and who's gonna go through the walkthrough. So you need to have those things in your mind.

J. Larry Stine (20:07):
The way I like to say it is you're going to have a written policy as to how to handle an inspection. The question is, do you write it with a little time and think it through? Are you busy writing it as the OSHA compliance software is sitting in your waiting because you will be doing these things. If you don't do it ahead of time, you'll be doing it right then and there on the spot. And the chances of you're not doing it as well is also very careful. Also, the HR person can help you. When, when compliance officers want to talk to employees, oftentimes they'll give you a list of people that they have selected that they want to talk to. Very seldom they give you the opportunity to select them, which is a wonderful opportunity. If you got it, take it. But one of the things I want to tell you, when you have an ocean inspection and they give you a list of people, sit down with the people who know those people and put them in order.

J. Larry Stine (21:12):
Put, put the happiest person who loves to work with you at the, at the top and put that grumbling guy who can never, ever say anything nice. And the world's a horrible, terrible place at the very end. It actually makes a difference with who gets to talk to the compliance officers first. Because if you get two or three people who are happy with you and are saying all the good things, when the grumbler comes in, it's now him gets three other people that the person has already heard you put the grumbler at start, then that's the, that's the impression you're gonna get that you got a problem and then the happy people won't have as much impact. You really need to think about the order you bring the people into for the interviews. You got anything else on the responsibilities, Catherine?

Kathleen J. Jennings (22:03):
Well, we, we have a, a sample written policy that I'll show you in a different slide after this one. And if anybody would like to get a copy of it or talk to us about getting a copy of it, you can reach out to us after the webinar. So we will have a sample policy that you can take a look at,

J. Larry Stine (22:23):
Right? And we also have an article that we can send you if you'll just send us a a link. I will say I haven't updated it since 2017 cause the penalties are 2017, but other than that, it's the same exact text.

Kathleen J. Jennings (22:36):
Nothing is really, but it's be prepared is really the most important point that we wanna make here so that you're not scrambling when they show up. And, and that segues into the next topic or next point, which is do your hazard assessments and safety trainings so that you have and, and document those. If you do them, you don't document them. It's like you haven't done them at all. So perform those hazard assessments and safety trainings. Document them, have that documentation available if you need it.

J. Larry Stine (23:14):
Right? And, and, and the other thing is, a lot of times when you have done a good job with your hazard assessments and your safety training and your programs and you give them to the investigator, whether it's Wage hour or OSHA or whoever, it, it really makes, gives them a comfortable feeling. They feel like they're in a place where you know what you are doing and you want to set that good impression. We know what we're doing, we know how we're doing it. And believe me, it has an impact at times I get, I get pushback from employers who really push back on the records, the hazard assessment and safety training records. Not that they don't do it, but they kind of grumble about the record part of it. Because, well, you know, really the important part of doing the safety and doing the hazard assessment as to the employees, and I don't know if I disagree with that aspect.

J. Larry Stine (24:13):
I think the, the actual training, the actual hazard assessment for the employees as the critical thing. But we're not talking about the employees, we're talking about the investigators. And these records are your defense against employees saying something that's not true. For example, we had a case once in which our client got cited for willful failure to perform training. And the client had done a video of the training, but the, and they had a roster. The employee swore up and down, he was never in that training. And so OSHA went ahead and cited them willful. And I had the safety director come in and said, let me see the safety. And when we were doing the review of the training that we got cited willful, all of a sudden the safety director was sitting there, started letting loose with a string of profanities that I won't put on recording.

J. Larry Stine (25:24):
I'm going, what's wrong? What's wrong? He says, you know that employee, that's not we, that's not the words he used. He says, that's him right there in the training in the video. So I was able to take the video, I took it down to the attorney for the solicitor's office and put it in there and we started showing it and I froze it and I said, there's your employee who's swearing up and down. He didn't get training and the attorney for the other side gave a string of profanities again and, you know, for a very different reason because his whole case went bye-bye. And they dropped the case. Records can win your case in keeping good records give you have good first impression. The records aren't for the employees. The records are for you, for your protection from the employee saying things that aren't true and the compliance officers taking what those employees said, these records can offset bad things that employees said.

J. Larry Stine (26:21):
And sometimes remember, even even guys who are your friend and compliance officer, ask them, have they had, has time training? Well since HazCom training is not exactly high on their list of things in their memory, a lot of 'em will tell them, no, I haven't done any of HazCom training. And then you'll pull the records and show the guys signed it and there it is and he'll look at it and go, yeah, I guess I was there. I don't remember it. But a lot of people were plain, they don't have training for simply because they either think training means a classroom or they just don't remember. And these records are there to protect a you from their lap and memory. Okay, copy the inspector. All right. Okay Kathleen, you put it up so

Kathleen J. Jennings (27:16):
Well copy the inspector. And that's, you know, that's the advice that Larry gave to the client that ignored him, which is when the inspector takes photos, you take photos, somebody follows him and whatever he looks at, make a note, whatever he says, make a note those kinds of things so that way you have a record of exactly what the inspector took photos of and exactly what he looked at or she looked at or commented on so that you have that information that you can, if you have to fight a citation, you can provide that to your attorney,

J. Larry Stine (27:57):
Right? And, and it's if, if we're not there, frankly we are there. Having those pictures and having those notes are critical for putting up the defense. Cause a lot of times what you can be, you can either be able to do is take your own photographs and later show. Most inspectors are really are trying to do their job. They're, they're, you know, they can be issues with inspectors. Some inspectors are frankly lazy and if you find out they're lazy, then we know how to take advantage of them being lazy. Some of 'em don't know what the heck they're looking at. We can do that every once in a while. You'll get somebody that's got a motive and we've had that happen before. Those records can help us communicate with the attorney above the, so that they can see what's actually going on. When the inspectors aren't forthcoming or think about this, inspectors will do multiple inspections and by the time you get to question them, they'll have done 20, 30, 40, 50 inspections and guess what?

J. Larry Stine (29:04):
They don't remember it that well. And so you get your own pictures so that you can bring their memory back even if they're just because they have a pal poor memory. There's a lot of reasons to copy the inspectors and keep your pictures, keep your notes. And particularly if the inspector says something is really favorable, we can do that. That statement is a statement of a party opponent and is admissible in review commission. So when the inspectors tell you, and we've had this happen before, I don't see anything to cite here. And then you get a citation. We had one this month, didn't we Kathleen?

Kathleen J. Jennings (29:48):
We did.

J. Larry Stine (29:49):
We did. And when we went to the informal settlement conference, they withdrew the citations because we had put down the statements, we knew what he was saying and they were in our notes and we couldn't good procures perform periodic internal audits. Honestly, probably the very best thing to protect yourself is to check yourself and have your audits because it keeps them from finding the problems. The other thing about periodic internal audits is it actually helps you from a legal side on the knowledge. I've had cases in where we're doing periodic internal audits and we've gone by a machine and checked off that the machine guard was good and the compliance officer comes in, the next guy during day, I've literally had this happen and somebody in sanitation and a plant forgot to put the guard back on about an hour before they showed up.

J. Larry Stine (30:51):
We were able to beat it because we could show we had an audit, it checked it the day before and it was on and we didn't have any knowledge. So it can help you establish that you're doing audits. The other thing the will help you do is an awful lot of the OSHA cases are based upon constructive knowledge. Not that you actually never saw it, but that you should have seen it. Well, if you're performing your periodic internal audits and you're documenting them, then I've got proofs that I am checking the area. I am looking for those things. I don't have constructive knowledge cuz I did look before. So performing these periodic internal audits help you in two ways. The first thing they do is, and probably the most important is you're able to find things that need to be fixed and fix them there before things happen. The secondary value is what I say. I can use them if something happens and they come in and the machine guard's been taken off and put back on the day of the inspection.

Kathleen J. Jennings (31:54):
But keep in mind, you know, if you do these periodic internal audits and you find potential hazards, then you also need to be committed to fixing those hazards. Because if you do the audit, become aware of a hazard and don't do anything about it. That sounds an awful lot like willful, doesn't it, Larry?

J. Larry Stine (32:16):
It does. And that is an important point to make is it's not enough just to do the audits. You've got to, you've gotta follow up on it. The, the thing I like to see the best is when I see these audits, a lot of times they'll do audits. They'll take a picture. Well, if you fix it herpes sake, take another picture. Sometimes you end up with an audits but nothing but violations of them and nothing other than a little note fixed. You don't have to take pictures. If you do take pictures, take a picture when you fix it so that they believe me. It is very impressive if you're having an audit and the compliance officer looks at the audit and sees the machine guards off and the next picture shows the machines guards back on or they see something is broken and the next picture shows it's fixed or they got a busted electrical panel and the next picture is they fix you.

J. Larry Stine (33:12):
But you do wanna make certain that you document the corrective actions. I will tell you I had a case with one with a very large company where I ended up with 4,800 items and they were really good about documenting them and they did not document the fixing at all. And they, the safety people didn't inspection the operation people were supposed to be to doing the fixing and they did. So, alright, so we have a sample policy here that we've, we've pulled from somebody that has used us and we, we think this is really important to be prepared. This is think about what's going to happen before they show up so that when you have this, when they walk up to the door, you can whip this thing out and you've got it on there. You know what the policy is. Now we've written this one as the attorney, but as I said, you can use the lead person as your vice president for safety or corporate safety director.

J. Larry Stine (34:26):
Somebody who's got some knowledge, understands your rights cuz they really need to understand when they can push back and when they shouldn't and how to handle 'em. And then put their numbers there and tell them what's going on. Now if you got an act, if you got a a death and we handle way too many of them, but we do handle them, that's the time. A lot of times we're going to try to get ourselves there as quickly as possible cuz you're gonna report it within eight hours and OSHA will have somebody there. And I will tell you, I have gone to plants at two in the morning. I've gotten calls that, you know, hey, we got a fatality. I've gotten in my car, driven to the plant, conducted the investigation, figured out what's wrong and by the time the compliance officer shows up, we're ready to figure out and explain what happened and why it happened and come up with the best ways to present it.

J. Larry Stine (35:28):
Sometimes we can present it cuz we didn't do anything wrong and we can do that or we can present it in such a way to, to make it look as good as possible and have things already fixed quickly. But you need to do that. You need to have somebody ready to come and go. This plan, you put your name, put your telephone numbers down so you can call them. And whoever's on there needs to understand that they may, they need to leave their phone on cuz you may need to be able to call them at three o'clock in the morning. By the way, at four o'clock in the morning, all the lights are lined up. You're gonna really make traffic in Atlanta. Really great, Kathleen.

Kathleen J. Jennings (36:06):
Yeah, there's probably a lot less traffic at that point. So, oh,

J. Larry Stine (36:10):
I, I went someplace not too long ago at four o'clock in the morning and the thing I found out I didn't know at the time we're heading through Tucker, was they synced up all the lights. I made it all, I made like eight miles to the expressway without hitting a red light. I've never done that in my life, but

Kathleen J. Jennings (36:24):
Anyway, but we're not encouraging you to call Larry at four o'clock in the morning just so he can see the lights. But if you need to, you know that one of us can be available, right? This moves on. Larry had mentioned a bunch of don'ts in his story of the client who didn't listen to his legal advice. And so these are some of the don'ts that you need to make sure that you don't do in regard to dealing with any government inspector. Understand that managers and supervisors are basically agents of your company. So whatever they say is binding against the company. So you wanna make sure they don't say anything that could be used as an admission against the company, such as if the, if the manager or supervisors, you know, the ocean inspector or any kind of government agent says, well, you know, it looks like this has been a problem for a long time. And the manager says, yeah, it really has. You know, we keep meaning to fix it but we just haven't gotten around to it. That's an admission that can be used against the company later. So don't let anybody say that. It's, it's like any kind of proceeding like a court proceeding criminal proceeding. The less you say the less that can be used against you.

J. Larry Stine (37:49):
Right? Anything you say can be used against you in a court of law

Kathleen J. Jennings (37:53):
Absolutely. Or in any administrative proceeding. So less the better,

J. Larry Stine (38:00):
Right? I'm not gonna give you a Miranda warning, we're gonna give you a Miranda warning. We're telling you don't, don't make admissions against them. That's one reason I don't allow engineers. I still remember I was in a plant one time and the ocean compliance officer looked at a problem and the engineer proceeded to tell them how in the last two years they had been working trying to fix this problem. We got a willful out of the engineer. I mean he was very detailed. All the things they had tried, it's for two years they left the thing wrong. The other thing, the volunteer information it's very hard not to volunteer information. And a lot of people want to cooperate the way I tell clients to do it, and there's a reason I do it. I said, I want you to give the appearance of cooperation.

J. Larry Stine (38:53):
And the reason I keep, I finally, I finally landed on that because if you use the word cooperate with the government, oh my gosh, some of the employees will just go outta the way to pull documents to want to talk to them, explain things. And that's not the way you need to handle it. They are not there to help you. They are there to see if they can find violations and issue citations. They are not judged by on their job performance standards, by how many compliance inspections they found. They're judged on their performance evaluations by how successful they are in finding violations. They won't tell you that. And it's written in ways that's not a direct quota, but believe me, their managers are expecting them to find things and that is their job. And you may not forget it. That's just what they're there to do.

J. Larry Stine (39:48):
And they're not there to help you. They're there to find violations and issue citations and to penalize you. So when the voluntary information just don't do it, what we'll do is we respond to what the compliance officer, the government inspector asks for any nothing else. And if I don't like what he is asked for, sometimes I will not respond the first time. I will make the investigator ask me a second time because sometimes I have found that inspectors forgot what they asked me the first time and then forget it the second time and therefore I don't have to give it to them. They ask for it the second time I give it to them and I try to put it in the light best. And one of the things that we do in the background when they're asking for things and we're in the background looking at stuff, we're trying to figure out the way to put the information in the best light possible.

J. Larry Stine (40:46):
Sometimes that's not as good as we'd like, but we always wanna do it in a way that's best light possible. And you need to do the same thing. If we're not there, how am I gonna present this evidence to them with this documents or this stuff and the best light? I can't. So think about that, but but don't volunteer information because it can be used against you. And when you think it's very helpful, don't do it. What I would recommend, if you think some information's helpful and sometimes it is before you offer it to the compliance officers, go in the back room and talk about it and think, think it, just think it through before you do it. What we don't want you to do is all we do this, we do this, we do this without thinking about it. Cuz you don't always understand all the implications of thinking through. But go in the back room, talk about it. Hey, we think that this is a really great thing and then we'll figure out whether it is or not. And then at that point, only after you've talked about it, thought about the considerations and the implications, might you wanna do that? But never any information just during the investigation, very clear thinking about.

Kathleen J. Jennings (41:54):
Yeah. And a lot of times what what I like to do is if an inspector asks me for specific information while they're walking around, I ask them to just put the complete request in an email. That way we're all on the same page. They have it in writing, I have it in writing, and it's easier to figure out what they're looking for. So I'll do that. Don't make threats against employees who are interviewed by the inspector. When an inspector wants to interview employees, keep in mind that managers and supervisors, anybody who's in a position to make admissions against the company are allowed to have company council present for those interviews. So we can help out in those situations For non-supervisory, non-management employees council is not present and those employees, actually everybody who participates in any kind of inspection like this or interviews is protected from retaliation. So you don't wanna make threats against somebody who was interviewed by an inspector because that is a whole other problem that you don't wanna have to deal with.

J. Larry Stine (43:09):
Yeah. And while it's not on the list and, but I will say this, don't threaten the inspector <laugh>

Kathleen J. Jennings (43:17):
<Laugh>. Yeah, that seems obvious, but we probably do need to put that on the list. You're right.

J. Larry Stine (43:22):
Yeah. I had a compliance officer one time tell me that he went to a construction site and the supervisor at the time told him that the split toilet seat was there so that it wouldn't hit him in the head when he was drinking from the toilet. And he came back the next day and his, that supervisor's boss heard about it and they came back the next day. The supervisor was sitting in the corner wearing a dance hat and a dress. That was the way,

Kathleen J. Jennings (43:51):
No, that, that's the best way to deal with that either, but that's probably a topic for a a different webinar <laugh>. We've talked about allowing access beyond where the inspectors authorized and also allowing the inspector to just walk through your facility unaccompanied, don't do those things. As Larry pointed out, they're just there to find issues that they can use to issue a citation. And so don't let them just go anywhere without anybody following them and seeing what they're doing. That's just gonna lead to trouble.

J. Larry Stine (44:30):
Right. And keep 'em where they're authorized because yes, if I, if I've got it in one area and I don't let, I don't have to let them go in the other nine tenths of the plant, then I, I keep any of the violations on the nine 10th of plants from his vision. And it's very helpful that way to do that.

Kathleen J. Jennings (44:48):
And even sometimes you may even wanna plan a path of ingress and egress to the particular area that they do need to inspect to minimize the number of areas that they can see in plain sight because anything that they see in plain sight is also fair game for a citation.

J. Larry Stine (45:10):
It's a, that's a very good point, Kathleen, is plan, plan the route to the area you're going to do. I have literally taken umbrellas and walked outside in the pouring rain to walk around the outside the plant and have somebody open a back door to go into the area instead of walking them through the plant. We have done that before and you need to think about it if you've got a accent or event in an area in the back of the plant, is there a different way to get the compliance officers there without having to walk through the whole plant? So it's another thing you need to, to, to plan and, and take care of.

Kathleen J. Jennings (45:55):
Well, we've covered a lot of information and we are at the point of asking if anybody has any questions. I don't see any in the chat. So either Larry and I have done an incredibly good job in presenting this material or y'all are just afraid to type a question in the chat.

J. Larry Stine (46:21):
<Laugh>,

Kathleen J. Jennings (46:22):
I guess we've done an incredibly good job, right Larry

J. Larry Stine (46:25):
As always, Gavin <laugh> we're glad you came and really when you think about it, if you haven't made your plan on how you're gonna handle those inspections,

J. Larry Stine (46:40):
If the you leave here with nothing else, go back, sit down, write out a plan of what you are going to do before the inspector shows up at your doorstep because that's going to give you a lot more confidence in what you're doing, who's going to be there. And if you've got somebody who's going to be the designated person, give them an opportunity to get some training. So spend some time reading, figuring out how they're going to handle it and know their rights. Cuz that's the critical thing in handling these inspections is some compliance officers are very pushing and some are not.

Kathleen J. Jennings (47:21):
Is I I P P still the most popular violation,

J. Larry Stine (47:27):
The most pop, the most popular frankly, is the HazCom violations violations of 19 10, 1200. We get more HazCom violations than anything else. The other one we get a lot of now is lockout tagout. And then nineteen ten two twelve a one, which is the machine guard standard, still is in the top 10 of the of the of the violations. The other thing we see a lot now is personal protective equipment. Not doing the hazard. Oh, like Hasco, okay, thanks. Yeah. Employee training. Yeah. yeah, we get employed a lot of times now with the citations. You'll see almost two of 'em. Hey, you, you didn't do the lockout tagout and therefore ifso facto, you didn't do the train. Not necessarily true, but a lot of compliance officers kind of have this ipso facto rationale that if I have a violation, you didn't properly train them, therefore you didn't train them and it doesn't work. But we do get that citation all the time. And I'm lockout tagout seems to be the one we're dealing with the most lately. 

Kathleen J. Jennings (48:44):
Well that's, you know, if you don't do it, that's when you're likely to get hurt. So those tend to be injuries, I think when people aren't using those procedures. I think I also wanna point out that even though we've spent most of the time discussing OSHA inspections these points also apply to dealing with other government inspectors insofar as you still have your constitutional rights, your fourth amendment right, against an unlawful search and seizure, your fifth Amendment right against self-incrimination or incrimination of the company. So those rights exist whenever the government is, is coming after you and you need to be aware of them and be prepared for any kind of government agent. Really depends on the type of business that you're in. That will determine the type of government agents that will come into your facility. In addition to OSHA's Larry pointed out, wage and hour inspectors can be likely to show up and at least we'll give you a little bit of notice so you can have everything in order and, and have the proper person who is the face of the company dealing with them. But it's, it's important to have those ducks in a row, have that face of the company determined, have someone who is knowledgeable, who is calm, who is mature, and is not likely to threaten whichever inspector shows up. Because that is the face of the company. And that will go a long way toward the inspector's attitude, toward the inspection and towards your company.

J. Larry Stine (50:30):
Right? The the other thing in wage hour inspections, it's going back to know your rights, the wage hour, their rights, and the way they handle it depends on the type of inspection. For example, if you're just getting a general wage hour investigator, you're a private employer. If you tell 'em though, they can't come on the premises, they will not come on your premises. They will do a sidewalk inspection. If you're a farmer and they're coming in to do an investigation on H two A, you've consented by applying for the H two A to allow them on your property and you don't let them on your property, you just don't get employees anymore. So one's a very simple remedy. Not much mu much risk for a farmer throwing 'em off the site as tremendous risk. And that's where you need to know your rights times gets a little at that times gets a little complex and a little difficult for a lay layperson to understand the complexities of what they're looking at and what you're doing. And it can differ even inside the same agency.

Kathleen J. Jennings (51:35):
Don't we. Thank everybody for joining us for this webinar today. Like I said, please give us feedback if you have any, any suggestions as to future webinars. We would love to hear from you what kinds of topics you wanna hear about. So Larry Stine, thank you very much for being here and my name is Kathleen Jennings and if any of you want to follow up with us after the webinar, you can go to our firm's website, which is www.whimlaw.com. You can reach out to Larry by email, which is jls whim law.com, or myself, I am at kj j whim law.com. Or if you're feeling like actually talking to us, the main firm number is 4 0 4 3 6 5 0 9 0 0. Thank you.

Kathleen J. Jennings (00:00):
Everyone. Welcome to our August webinar presented by Wimberley Lawson. Today we are going to be talking about what to do when a government inspector shows up at your facility. And my name is Kathleen Jennings. I'm one of the attorneys here at Wimberley Lawson. Larry Stine is the other esteemed presenter in this webinar. And he is also someone who has had a vast amount of experience with these government inspectors, including one of, he is one of the few attorneys to successfully kick out OSHA inspectors who decided to overstay their welcome. So we can talk about that in a little bit. If you have any questions, please put them in the chat and we will try to answer them as best we can. And we h would love to get some feedback from all of you about how you enjoyed this webinar or didn't enjoy this webinar, or any suggestions as to how we could conduct it, or even more important suggestions for fu future topics that are important to you and your business. So, again, welcome and Larry and I hope to give you some useful information as to what you should do when a government inspector shows up.

J. Larry Stine (01:26):
As you can imagine, it's not a pleasant day when the government official pulls up into your parking lot and walks into the door and having surprise inspections is not that unusual. OSHA has a provision, the act that prohibits them from telling you to start with. You can tell from some inspections are gonna happen. You report a fatality you can almost count the next day or even later that day. OSHA will will show up. So we wanna talk a little bit about what you can do and what you can't do. So we're going to talk about the topics, but we'll mention the news the day and then answer your questions if you need to, to do that. So, but we'll, we'll go ahead and get started with the discussion. And the first part, so OSHA does not have to give advanced notice of an inspection. True or false?

Kathleen J. Jennings (02:37):
True or false? Everybody think about that. Do they have to give advanced notice of an inspection?

J. Larry Stine (02:45):
I am. They do not have to give advance on those inspection. Let me take this a little bit better. OSHA is peculiar. When Congress wrote the act, they made it a crime for OSHA to give advanced notice. That's the reason you don't get appointment letters. Other federal agencies don't have that. So a lot of times, for example, in a wage hour investigation, your first inkling that you're going to have a wage hour investigation is you receive a letter saying, Hey, we're coming out on such and such a day, and here's the documents we want you to have. But with osha, they're, you're gonna look out in your parking lot and you're gonna see a bland little GSA car drive up. And that's gonna be OSHA coming to see you. Like I said, sometimes you know they're coming cause you've got a fatality, you can count on it, you have a big accident, you know they're coming. Other than that, you don't know whether they're coming or not. Okay? Once, once inside your facility, an ocean inspector can go wherever he or she wants, true or false.

Kathleen J. Jennings (03:54):
And this is where talking about the actual law, not what the ocean inspector really thinks he or she can do, right. Larry

J. Larry Stine (04:02):
<Laugh>. That's right. They'll tell you it's false. They can't just go wherever they want with some small I'll talk about the exceptions for that rule. The way they do it. Now, typically, OSHA's coming in either on a complaint, a report of an amputation, or report of the hospitalization for a report of a fatality. They didn't used to do that, but when they changed the law about reporting and lowered the hospitalizations from three to one, and then added the amputations the entire way that OSHA conducted inspections changed up until that time, they had regularly scheduled selected inspections with wall to walls. They, but when the thing changed, they started being much more reactive, reacting to these points. The problem for Ocean doing that though, is when they come in with a administratively neutral plan, as the Supreme Court said in Barlow, they can do a wall to wall, but when they come in on a complaint, an amputation, a hospitalization, our fatality, their authority is to inspect for what happened for the fatality or for the hospitalization, the amputation.

J. Larry Stine (05:16):
And so they're not able to go everywhere. Now, some inspectors will push back on that really hard and some will not. When you have your opening conference and what happens in an inspection, investigators almost from every agency will sit down and have an opening conference and they're going to tell you what they're going to do. This is when you need to be able to find out what they're doing and how they're going to handle it. So if you have an ocean spectrum, they come in and they said, I got a complaint. And he said, okay, we'll go to the complaint area. And they says, that's grand. I'm leading my inspection to a complaint. And you can rest a little easy. But sometimes you say that and the inspector goes, no, no. I plan to do more than that. And then you need to know what your rights are and how to push back.

J. Larry Stine (06:03):
I will say that a lot of employers really don't like to push back on investigators. That's one reason. Sometimes we go there cuz it's our job to push back on 'em very politely, very respectfully. We don't disrespect them. We don't give 'em a hard time. But very politely and respectfully, we'll go, no, you're not, you're limited to the complaint and we're not letting you go anywhere. But the complaint area, and we've, we've made that stick a couple of times. As Kathleen says, on at least two occasions, they tried to expand it far beyond what they're, what they came in for. And one they came in where a guy actually stuck a screwdriver into electrical panel and had an arc flash in one area. Well, they came in, we let them do that, but the compliance officer wanted to do a wall to wall and we would not let her do it.

J. Larry Stine (07:03):
They came in with a warrant, we quashed the warrant and got OSHAs thrown out successfully. And because the litigation lasted two years, they never did come back and finish up what little bit they did win. They just gave up on it. So the other thing though, when you're pushing back, one of my favorite stories is I got hired by an employee I who had a fatality. And he and I had just met, I have driven down south of Georgia to go into his plant and he had some things in his plant I didn't want the compliance officers to see. And so the compliance officers came and they said, where this fatality, we're gonna do a wall to wall. And I said, no, you're not, you're limiting it to the fatality. And they said, well, it's our policy on to do a wall to wall.

J. Larry Stine (07:49):
And I said, well, why don't you call your office? Cause it was the Savannah OSHA office, which is the one I had just thrown 'em out a few months before and said, tell 'em I'm the lawyer to do crier. And so they went outside, they came back and they went, yeah, we'll do it. My client didn't know me for like three hours afterwards, came to me, he says, you no, when you told them no, I about had a heart attack, he says, and then you made 'em do it. So it was really strange. But you need to know your rights. You can do it, but it's uncomfortable for the employer to do it. That's one reason we can be in big help. But you can do it all right? Yes,

Kathleen J. Jennings (08:29):
Yes, yes. I, I've had, I've had ocean inspectors who've come in on a injury investigation. I can think of at least one who at some point just said, you know what? I'd like to expand the inspection. And I just politely said, no, we're not gonna consent to that. And so he calls his office this and that and ultimately he did not expand it. But yeah, the client gets a little nervous cuz a lot of companies feel like if, if we don't cooperate fully with osha, they're gonna do something really bad. Well the reality is you have constitutional rights when you deal with OSHA or any other governmental agency

J. Larry Stine (09:12):
Right? Now, the other thing that Kathleen, that you've raised is fully cooperate. And that's a real problem sometimes in the mindset. So I have a, as you recall, our name of our inspection is what to do and what not to do. So I'm, before we start on what to do, I want to tell the story about my client who will forever remain unnamed. Gave a prime example. And this story is true. It's so bad I didn't have to exaggerate anything. So I had a client that came in on the phone and said, oh, she was in the door to do a wall to wall back when they did wall to walls and could do it properly. And I said, okay, here's the things I want you to do. I said, I, wherever they, I said, you want me to come? And he goes, no, you're too expensive.

J. Larry Stine (10:02):
And I said, I understand. And you know that do not every time somebody wants an attorney there. So I said, what I want you to do is have two people go out with them, one to be a spokesperson, one to be a note taker. Every time they take a picture. I want you to take a picture from the east to west to south from the north. So I get 4:00 AM I said, and whatever it is. Cause I was talking to the president, I said, you don't talk to them because if you say something, it's really hard if you make a mistake for me to disavow. But the president says, you know, if an HR manager or a maintenance man says something, the president come in and said, no, that's not right. I'm not gonna undo it. And so go ahead and do that. I'm fine.

J. Larry Stine (10:46):
About six months later, which for OSHA's a very bad sign is the statute limitation for OSHAs six months. When they take six months, close to six months issue with citations typically going be big. And so the president calls and says he's gotten a citation from OSHA for a quarter of a million dollars. And this would be early nineties, so that'd probably be the equivalent. About three quarters of a million now. And I, my first question is, I said, okay, great. Can you send me the pictures you took? Cause it'd be very helpful for me to see the pictures. And he goes, well, we didn't take any pictures. I go, okay, so why don't you send me the notes? Then he goes, well we didn't take any notes either. I said, okay, didn't give a little worried. I said, let me talk to the guys that walked around with the compliance officer who went through your plant when he went, well, we decided not to have anybody walk through because we wanted to be fully cooperative.

J. Larry Stine (11:53):
We wanted to show that, that we were fully cooperating. And I said, any other thing you want to tell 'em? He said, well, yeah, I did talk to them a couple of times and you told me not to. I said, okay, so what happened after you got the $250,000? He says, well, when I got it, I sent a letter to the two senators and all the congressmen in the state and I called the area director of senate. And so I said, okay, good. And I picked up the phone to talk to the area director and I told him who represented, and I've known this area director for 20 years at the time. He said, Larry, I don't have anything to talk to. And he hung up on me. So being fully cooperative like that didn't really work. He ended up with a quarter of a million. We managed to knock it down to 75,000 at the time. But those are the things that you don't do. You don't truly, truly be fully cooperative in every way and just let them walk through your plan. You're just asking for disasters. So when, what happens when an ocean inspector or any federal inspector comes up have 'em show you their credentials? They certainly are there. They happen occasions when we've had sales people come in and pretend to be OSHA compliance officers to sell things. Believe it or not,

Kathleen J. Jennings (13:18):
That's, that's troubling

J. Larry Stine (13:20):
Actually. It is troubling, but it actually has, yeah, it actually has happened that a couple of salespeople and we would, we've we've had them investigated afterwards and they're, they don't do it again. No, your rights this is important because it, it is, they do have limits to what they can do. They don't have part blanche for anything and everything and every piece of record and every injure your plant, they just don't have it. They have to limit their inspections to the areas they're in for one thing. They can only inspect places that the courts have allowed under the fourth amendment. They, depending on what they're doing, like if they come in with a scheduled inspection for wall to wall, well then you're going to do it. It's, if it's a complaint, you're gonna limit it to a complaint. But you need to know your rights and you don't have to talk to them. You really don't have to say anything at all. And if you talk to them, one thing you have to do is you have to tell them the truth. You don't have to talk to 'em. And if you got something you don't want to tell 'em, don't tell 'em. But don't lie. This is not, it's not a crime. I'm not saying anything. It is a crime to say something wrong under what is it? 18 USC 1001. Did I get that right Kathleen?

Kathleen J. Jennings (14:53):
I think so. And also, you know, you have, in addition to the fourth Amendment, right, to you know, the government has to have some kind of probable cause in order to come onto and inspect your premises. And in the case of a complaint or an injury or something, that's their probable cause to get them on there. You also have a Fifth Amendment right, which is the right to remain silent. A lot of people don't always avail themselves of that right when they need to. And you have a right to have your company's attorney there. I know in the past we've had some ocean inspectors who've given some pushback on that because they don't, you know, they don't wanna have the attorneys there because we know what we're doing and we know what the limitations are on their authority. And you know, we've heard stories just as the one Larry told, where ocean inspectors show up and basically do what they want because the company doesn't know otherwise.

Kathleen J. Jennings (15:55):
And as a result, you end up with a citation that could have been avoided. So if you say you wanna have your attorney there and they say, well, why, you know, it's, and, and you see this sometimes law enforcement, why do you need an attorney? Have you done something wrong? No, I just, you know, feel more comfortable having my council here. And you know, then there's nothing wrong with that. So don't, don't give into the pushback. If you really wanna have your council there. And I know we have a number of OSHA area offices who when they're told that, you know, one of us is gonna show up, they understand that, you know, we're gonna show up and, and they can't do anything about it.

J. Larry Stine (16:37):
Right? Typically what happens is we tell the client, if they called us, and we do have some clients who have policies that we show up for every ocean inspection regardless, you can put 'em in a nice conference room. They would like to look at your OSHA 300 s and because there's a, a regulation that says you have to produce your OS 300 s within four hours and you can get a penalty. And we can't do anything with OSHA 300 s. They, they are what they are. We'll tell 'em, give 'em the 300 s, let them go in, look at them and we'll be on our way. One other thing I will say, when you put 'em in a conference room and we're on our way, this is a wonderful time for you to send your people back in the plant and look for the low hanging, what I call the low hanging fruit, which just means the obvious things like you go through and you got an extension cord where you shouldn't have an extension cord. You can unplug it in, remove it, or where you've got a, you go in and you've got a drain uncovered. Somebody's set aside the drain cover, you can put the drain cover back cause you can go through and find some of those low hanging fruits so that OSHA doesn't come in and, you know, hit you with a serious citation for not having a drain cover. The fines are now up for serious into the $14,000 range. So, wow.

Kathleen J. Jennings (18:01):
Yeah, yeah. Check your exit doors, make sure that they're not locked. Make sure your exit signs light up. Simple stuff like that. Do your, if you have eye wash areas, make sure the water comes out. You know, just, just simple stuff like that. Yeah, that's the low

J. Larry Stine (18:19):
You can and walk. Do it while you're waiting for us to get there. You'll get an hour or two while we, we get on, get on the way or whoever it is, whether it's us or the corporate safety director. If you use them as a person, you need to sign responsibility. So there's a couple of things that you need to think about. Okay, who's gonna be in charge of handling the ocean investigation? Who's gonna be person in charge? It can be an attorney, it can be your safety director, it can be the corporate safety director. I would not recommend your engineers. Engineers have this bad habit of wanting to explain everything and I just don't recommend them to be the talk the talker. So you got to have somebody in control. Have somebody that can do, be the talker with attorney, corporate safety director, hr, who's good at it.

J. Larry Stine (19:15):
You can have a maintenance guy or a engineer come, but their job is to observe, take pictures, take take notes. And the other thing is, if you have not been able to get all the low hanging fruit and the compliance officers mentioned that if you've got the maintenance guy or the engineer, you can have people nearby and get it fixed immediately. You will get brownie points. You may not even, sometimes they won't even cite you, but you will get brownie points for fixing the things so quickly cuz it, it gives a good first impression. So you need to have those people assigned and understand what's going on. So beforehand, before they show in, decide who's going to handle the overall, who's gonna be the person doing the talking and who's gonna go through the walkthrough. So you need to have those things in your mind.

J. Larry Stine (20:07):
The way I like to say it is you're going to have a written policy as to how to handle an inspection. The question is, do you write it with a little time and think it through? Are you busy writing it as the OSHA compliance software is sitting in your waiting because you will be doing these things. If you don't do it ahead of time, you'll be doing it right then and there on the spot. And the chances of you're not doing it as well is also very careful. Also, the HR person can help you. When, when compliance officers want to talk to employees, oftentimes they'll give you a list of people that they have selected that they want to talk to. Very seldom they give you the opportunity to select them, which is a wonderful opportunity. If you got it, take it. But one of the things I want to tell you, when you have an ocean inspection and they give you a list of people, sit down with the people who know those people and put them in order.

J. Larry Stine (21:12):
Put, put the happiest person who loves to work with you at the, at the top and put that grumbling guy who can never, ever say anything nice. And the world's a horrible, terrible place at the very end. It actually makes a difference with who gets to talk to the compliance officers first. Because if you get two or three people who are happy with you and are saying all the good things, when the grumbler comes in, it's now him gets three other people that the person has already heard you put the grumbler at start, then that's the, that's the impression you're gonna get that you got a problem and then the happy people won't have as much impact. You really need to think about the order you bring the people into for the interviews. You got anything else on the responsibilities, Catherine?

Kathleen J. Jennings (22:03):
Well, we, we have a, a sample written policy that I'll show you in a different slide after this one. And if anybody would like to get a copy of it or talk to us about getting a copy of it, you can reach out to us after the webinar. So we will have a sample policy that you can take a look at,

J. Larry Stine (22:23):
Right? And we also have an article that we can send you if you'll just send us a a link. I will say I haven't updated it since 2017 cause the penalties are 2017, but other than that, it's the same exact text.

Kathleen J. Jennings (22:36):
Nothing is really, but it's be prepared is really the most important point that we wanna make here so that you're not scrambling when they show up. And, and that segues into the next topic or next point, which is do your hazard assessments and safety trainings so that you have and, and document those. If you do them, you don't document them. It's like you haven't done them at all. So perform those hazard assessments and safety trainings. Document them, have that documentation available if you need it.

J. Larry Stine (23:14):
Right? And, and, and the other thing is, a lot of times when you have done a good job with your hazard assessments and your safety training and your programs and you give them to the investigator, whether it's Wage hour or OSHA or whoever, it, it really makes, gives them a comfortable feeling. They feel like they're in a place where you know what you are doing and you want to set that good impression. We know what we're doing, we know how we're doing it. And believe me, it has an impact at times I get, I get pushback from employers who really push back on the records, the hazard assessment and safety training records. Not that they don't do it, but they kind of grumble about the record part of it. Because, well, you know, really the important part of doing the safety and doing the hazard assessment as to the employees, and I don't know if I disagree with that aspect.

J. Larry Stine (24:13):
I think the, the actual training, the actual hazard assessment for the employees as the critical thing. But we're not talking about the employees, we're talking about the investigators. And these records are your defense against employees saying something that's not true. For example, we had a case once in which our client got cited for willful failure to perform training. And the client had done a video of the training, but the, and they had a roster. The employee swore up and down, he was never in that training. And so OSHA went ahead and cited them willful. And I had the safety director come in and said, let me see the safety. And when we were doing the review of the training that we got cited willful, all of a sudden the safety director was sitting there, started letting loose with a string of profanities that I won't put on recording.

J. Larry Stine (25:24):
I'm going, what's wrong? What's wrong? He says, you know that employee, that's not we, that's not the words he used. He says, that's him right there in the training in the video. So I was able to take the video, I took it down to the attorney for the solicitor's office and put it in there and we started showing it and I froze it and I said, there's your employee who's swearing up and down. He didn't get training and the attorney for the other side gave a string of profanities again and, you know, for a very different reason because his whole case went bye-bye. And they dropped the case. Records can win your case in keeping good records give you have good first impression. The records aren't for the employees. The records are for you, for your protection from the employee saying things that aren't true and the compliance officers taking what those employees said, these records can offset bad things that employees said.

J. Larry Stine (26:21):
And sometimes remember, even even guys who are your friend and compliance officer, ask them, have they had, has time training? Well since HazCom training is not exactly high on their list of things in their memory, a lot of 'em will tell them, no, I haven't done any of HazCom training. And then you'll pull the records and show the guys signed it and there it is and he'll look at it and go, yeah, I guess I was there. I don't remember it. But a lot of people were plain, they don't have training for simply because they either think training means a classroom or they just don't remember. And these records are there to protect a you from their lap and memory. Okay, copy the inspector. All right. Okay Kathleen, you put it up so

Kathleen J. Jennings (27:16):
Well copy the inspector. And that's, you know, that's the advice that Larry gave to the client that ignored him, which is when the inspector takes photos, you take photos, somebody follows him and whatever he looks at, make a note, whatever he says, make a note those kinds of things so that way you have a record of exactly what the inspector took photos of and exactly what he looked at or she looked at or commented on so that you have that information that you can, if you have to fight a citation, you can provide that to your attorney,

J. Larry Stine (27:57):
Right? And, and it's if, if we're not there, frankly we are there. Having those pictures and having those notes are critical for putting up the defense. Cause a lot of times what you can be, you can either be able to do is take your own photographs and later show. Most inspectors are really are trying to do their job. They're, they're, you know, they can be issues with inspectors. Some inspectors are frankly lazy and if you find out they're lazy, then we know how to take advantage of them being lazy. Some of 'em don't know what the heck they're looking at. We can do that every once in a while. You'll get somebody that's got a motive and we've had that happen before. Those records can help us communicate with the attorney above the, so that they can see what's actually going on. When the inspectors aren't forthcoming or think about this, inspectors will do multiple inspections and by the time you get to question them, they'll have done 20, 30, 40, 50 inspections and guess what?

J. Larry Stine (29:04):
They don't remember it that well. And so you get your own pictures so that you can bring their memory back even if they're just because they have a pal poor memory. There's a lot of reasons to copy the inspectors and keep your pictures, keep your notes. And particularly if the inspector says something is really favorable, we can do that. That statement is a statement of a party opponent and is admissible in review commission. So when the inspectors tell you, and we've had this happen before, I don't see anything to cite here. And then you get a citation. We had one this month, didn't we Kathleen?

Kathleen J. Jennings (29:48):
We did.

J. Larry Stine (29:49):
We did. And when we went to the informal settlement conference, they withdrew the citations because we had put down the statements, we knew what he was saying and they were in our notes and we couldn't good procures perform periodic internal audits. Honestly, probably the very best thing to protect yourself is to check yourself and have your audits because it keeps them from finding the problems. The other thing about periodic internal audits is it actually helps you from a legal side on the knowledge. I've had cases in where we're doing periodic internal audits and we've gone by a machine and checked off that the machine guard was good and the compliance officer comes in, the next guy during day, I've literally had this happen and somebody in sanitation and a plant forgot to put the guard back on about an hour before they showed up.

J. Larry Stine (30:51):
We were able to beat it because we could show we had an audit, it checked it the day before and it was on and we didn't have any knowledge. So it can help you establish that you're doing audits. The other thing the will help you do is an awful lot of the OSHA cases are based upon constructive knowledge. Not that you actually never saw it, but that you should have seen it. Well, if you're performing your periodic internal audits and you're documenting them, then I've got proofs that I am checking the area. I am looking for those things. I don't have constructive knowledge cuz I did look before. So performing these periodic internal audits help you in two ways. The first thing they do is, and probably the most important is you're able to find things that need to be fixed and fix them there before things happen. The secondary value is what I say. I can use them if something happens and they come in and the machine guard's been taken off and put back on the day of the inspection.

Kathleen J. Jennings (31:54):
But keep in mind, you know, if you do these periodic internal audits and you find potential hazards, then you also need to be committed to fixing those hazards. Because if you do the audit, become aware of a hazard and don't do anything about it. That sounds an awful lot like willful, doesn't it, Larry?

J. Larry Stine (32:16):
It does. And that is an important point to make is it's not enough just to do the audits. You've got to, you've gotta follow up on it. The, the thing I like to see the best is when I see these audits, a lot of times they'll do audits. They'll take a picture. Well, if you fix it herpes sake, take another picture. Sometimes you end up with an audits but nothing but violations of them and nothing other than a little note fixed. You don't have to take pictures. If you do take pictures, take a picture when you fix it so that they believe me. It is very impressive if you're having an audit and the compliance officer looks at the audit and sees the machine guards off and the next picture shows the machines guards back on or they see something is broken and the next picture shows it's fixed or they got a busted electrical panel and the next picture is they fix you.

J. Larry Stine (33:12):
But you do wanna make certain that you document the corrective actions. I will tell you I had a case with one with a very large company where I ended up with 4,800 items and they were really good about documenting them and they did not document the fixing at all. And they, the safety people didn't inspection the operation people were supposed to be to doing the fixing and they did. So, alright, so we have a sample policy here that we've, we've pulled from somebody that has used us and we, we think this is really important to be prepared. This is think about what's going to happen before they show up so that when you have this, when they walk up to the door, you can whip this thing out and you've got it on there. You know what the policy is. Now we've written this one as the attorney, but as I said, you can use the lead person as your vice president for safety or corporate safety director.

J. Larry Stine (34:26):
Somebody who's got some knowledge, understands your rights cuz they really need to understand when they can push back and when they shouldn't and how to handle 'em. And then put their numbers there and tell them what's going on. Now if you got an act, if you got a a death and we handle way too many of them, but we do handle them, that's the time. A lot of times we're going to try to get ourselves there as quickly as possible cuz you're gonna report it within eight hours and OSHA will have somebody there. And I will tell you, I have gone to plants at two in the morning. I've gotten calls that, you know, hey, we got a fatality. I've gotten in my car, driven to the plant, conducted the investigation, figured out what's wrong and by the time the compliance officer shows up, we're ready to figure out and explain what happened and why it happened and come up with the best ways to present it.

J. Larry Stine (35:28):
Sometimes we can present it cuz we didn't do anything wrong and we can do that or we can present it in such a way to, to make it look as good as possible and have things already fixed quickly. But you need to do that. You need to have somebody ready to come and go. This plan, you put your name, put your telephone numbers down so you can call them. And whoever's on there needs to understand that they may, they need to leave their phone on cuz you may need to be able to call them at three o'clock in the morning. By the way, at four o'clock in the morning, all the lights are lined up. You're gonna really make traffic in Atlanta. Really great, Kathleen.

Kathleen J. Jennings (36:06):
Yeah, there's probably a lot less traffic at that point. So, oh,

J. Larry Stine (36:10):
I, I went someplace not too long ago at four o'clock in the morning and the thing I found out I didn't know at the time we're heading through Tucker, was they synced up all the lights. I made it all, I made like eight miles to the expressway without hitting a red light. I've never done that in my life, but

Kathleen J. Jennings (36:24):
Anyway, but we're not encouraging you to call Larry at four o'clock in the morning just so he can see the lights. But if you need to, you know that one of us can be available, right? This moves on. Larry had mentioned a bunch of don'ts in his story of the client who didn't listen to his legal advice. And so these are some of the don'ts that you need to make sure that you don't do in regard to dealing with any government inspector. Understand that managers and supervisors are basically agents of your company. So whatever they say is binding against the company. So you wanna make sure they don't say anything that could be used as an admission against the company, such as if the, if the manager or supervisors, you know, the ocean inspector or any kind of government agent says, well, you know, it looks like this has been a problem for a long time. And the manager says, yeah, it really has. You know, we keep meaning to fix it but we just haven't gotten around to it. That's an admission that can be used against the company later. So don't let anybody say that. It's, it's like any kind of proceeding like a court proceeding criminal proceeding. The less you say the less that can be used against you.

J. Larry Stine (37:49):
Right? Anything you say can be used against you in a court of law

Kathleen J. Jennings (37:53):
Absolutely. Or in any administrative proceeding. So less the better,

J. Larry Stine (38:00):
Right? I'm not gonna give you a Miranda warning, we're gonna give you a Miranda warning. We're telling you don't, don't make admissions against them. That's one reason I don't allow engineers. I still remember I was in a plant one time and the ocean compliance officer looked at a problem and the engineer proceeded to tell them how in the last two years they had been working trying to fix this problem. We got a willful out of the engineer. I mean he was very detailed. All the things they had tried, it's for two years they left the thing wrong. The other thing, the volunteer information it's very hard not to volunteer information. And a lot of people want to cooperate the way I tell clients to do it, and there's a reason I do it. I said, I want you to give the appearance of cooperation.

J. Larry Stine (38:53):
And the reason I keep, I finally, I finally landed on that because if you use the word cooperate with the government, oh my gosh, some of the employees will just go outta the way to pull documents to want to talk to them, explain things. And that's not the way you need to handle it. They are not there to help you. They are there to see if they can find violations and issue citations. They are not judged by on their job performance standards, by how many compliance inspections they found. They're judged on their performance evaluations by how successful they are in finding violations. They won't tell you that. And it's written in ways that's not a direct quota, but believe me, their managers are expecting them to find things and that is their job. And you may not forget it. That's just what they're there to do.

J. Larry Stine (39:48):
And they're not there to help you. They're there to find violations and issue citations and to penalize you. So when the voluntary information just don't do it, what we'll do is we respond to what the compliance officer, the government inspector asks for any nothing else. And if I don't like what he is asked for, sometimes I will not respond the first time. I will make the investigator ask me a second time because sometimes I have found that inspectors forgot what they asked me the first time and then forget it the second time and therefore I don't have to give it to them. They ask for it the second time I give it to them and I try to put it in the light best. And one of the things that we do in the background when they're asking for things and we're in the background looking at stuff, we're trying to figure out the way to put the information in the best light possible.

J. Larry Stine (40:46):
Sometimes that's not as good as we'd like, but we always wanna do it in a way that's best light possible. And you need to do the same thing. If we're not there, how am I gonna present this evidence to them with this documents or this stuff and the best light? I can't. So think about that, but but don't volunteer information because it can be used against you. And when you think it's very helpful, don't do it. What I would recommend, if you think some information's helpful and sometimes it is before you offer it to the compliance officers, go in the back room and talk about it and think, think it, just think it through before you do it. What we don't want you to do is all we do this, we do this, we do this without thinking about it. Cuz you don't always understand all the implications of thinking through. But go in the back room, talk about it. Hey, we think that this is a really great thing and then we'll figure out whether it is or not. And then at that point, only after you've talked about it, thought about the considerations and the implications, might you wanna do that? But never any information just during the investigation, very clear thinking about.

Kathleen J. Jennings (41:54):
Yeah. And a lot of times what what I like to do is if an inspector asks me for specific information while they're walking around, I ask them to just put the complete request in an email. That way we're all on the same page. They have it in writing, I have it in writing, and it's easier to figure out what they're looking for. So I'll do that. Don't make threats against employees who are interviewed by the inspector. When an inspector wants to interview employees, keep in mind that managers and supervisors, anybody who's in a position to make admissions against the company are allowed to have company council present for those interviews. So we can help out in those situations For non-supervisory, non-management employees council is not present and those employees, actually everybody who participates in any kind of inspection like this or interviews is protected from retaliation. So you don't wanna make threats against somebody who was interviewed by an inspector because that is a whole other problem that you don't wanna have to deal with.

J. Larry Stine (43:09):
Yeah. And while it's not on the list and, but I will say this, don't threaten the inspector <laugh>

Kathleen J. Jennings (43:17):
<Laugh>. Yeah, that seems obvious, but we probably do need to put that on the list. You're right.

J. Larry Stine (43:22):
Yeah. I had a compliance officer one time tell me that he went to a construction site and the supervisor at the time told him that the split toilet seat was there so that it wouldn't hit him in the head when he was drinking from the toilet. And he came back the next day and his, that supervisor's boss heard about it and they came back the next day. The supervisor was sitting in the corner wearing a dance hat and a dress. That was the way,

Kathleen J. Jennings (43:51):
No, that, that's the best way to deal with that either, but that's probably a topic for a a different webinar <laugh>. We've talked about allowing access beyond where the inspectors authorized and also allowing the inspector to just walk through your facility unaccompanied, don't do those things. As Larry pointed out, they're just there to find issues that they can use to issue a citation. And so don't let them just go anywhere without anybody following them and seeing what they're doing. That's just gonna lead to trouble.

J. Larry Stine (44:30):
Right. And keep 'em where they're authorized because yes, if I, if I've got it in one area and I don't let, I don't have to let them go in the other nine tenths of the plant, then I, I keep any of the violations on the nine 10th of plants from his vision. And it's very helpful that way to do that.

Kathleen J. Jennings (44:48):
And even sometimes you may even wanna plan a path of ingress and egress to the particular area that they do need to inspect to minimize the number of areas that they can see in plain sight because anything that they see in plain sight is also fair game for a citation.

J. Larry Stine (45:10):
It's a, that's a very good point, Kathleen, is plan, plan the route to the area you're going to do. I have literally taken umbrellas and walked outside in the pouring rain to walk around the outside the plant and have somebody open a back door to go into the area instead of walking them through the plant. We have done that before and you need to think about it if you've got a accent or event in an area in the back of the plant, is there a different way to get the compliance officers there without having to walk through the whole plant? So it's another thing you need to, to, to plan and, and take care of.

Kathleen J. Jennings (45:55):
Well, we've covered a lot of information and we are at the point of asking if anybody has any questions. I don't see any in the chat. So either Larry and I have done an incredibly good job in presenting this material or y'all are just afraid to type a question in the chat.

J. Larry Stine (46:21):
<Laugh>,

Kathleen J. Jennings (46:22):
I guess we've done an incredibly good job, right Larry

J. Larry Stine (46:25):
As always, Gavin <laugh> we're glad you came and really when you think about it, if you haven't made your plan on how you're gonna handle those inspections,

J. Larry Stine (46:40):
If the you leave here with nothing else, go back, sit down, write out a plan of what you are going to do before the inspector shows up at your doorstep because that's going to give you a lot more confidence in what you're doing, who's going to be there. And if you've got somebody who's going to be the designated person, give them an opportunity to get some training. So spend some time reading, figuring out how they're going to handle it and know their rights. Cuz that's the critical thing in handling these inspections is some compliance officers are very pushing and some are not.

Kathleen J. Jennings (47:21):
Is I I P P still the most popular violation,

J. Larry Stine (47:27):
The most pop, the most popular frankly, is the HazCom violations violations of 19 10, 1200. We get more HazCom violations than anything else. The other one we get a lot of now is lockout tagout. And then nineteen ten two twelve a one, which is the machine guard standard, still is in the top 10 of the of the of the violations. The other thing we see a lot now is personal protective equipment. Not doing the hazard. Oh, like Hasco, okay, thanks. Yeah. Employee training. Yeah. yeah, we get employed a lot of times now with the citations. You'll see almost two of 'em. Hey, you, you didn't do the lockout tagout and therefore ifso facto, you didn't do the train. Not necessarily true, but a lot of compliance officers kind of have this ipso facto rationale that if I have a violation, you didn't properly train them, therefore you didn't train them and it doesn't work. But we do get that citation all the time. And I'm lockout tagout seems to be the one we're dealing with the most lately. 

Kathleen J. Jennings (48:44):
Well that's, you know, if you don't do it, that's when you're likely to get hurt. So those tend to be injuries, I think when people aren't using those procedures. I think I also wanna point out that even though we've spent most of the time discussing OSHA inspections these points also apply to dealing with other government inspectors insofar as you still have your constitutional rights, your fourth amendment right, against an unlawful search and seizure, your fifth Amendment right against self-incrimination or incrimination of the company. So those rights exist whenever the government is, is coming after you and you need to be aware of them and be prepared for any kind of government agent. Really depends on the type of business that you're in. That will determine the type of government agents that will come into your facility. In addition to OSHA's Larry pointed out, wage and hour inspectors can be likely to show up and at least we'll give you a little bit of notice so you can have everything in order and, and have the proper person who is the face of the company dealing with them. But it's, it's important to have those ducks in a row, have that face of the company determined, have someone who is knowledgeable, who is calm, who is mature, and is not likely to threaten whichever inspector shows up. Because that is the face of the company. And that will go a long way toward the inspector's attitude, toward the inspection and towards your company.

J. Larry Stine (50:30):
Right? The the other thing in wage hour inspections, it's going back to know your rights, the wage hour, their rights, and the way they handle it depends on the type of inspection. For example, if you're just getting a general wage hour investigator, you're a private employer. If you tell 'em though, they can't come on the premises, they will not come on your premises. They will do a sidewalk inspection. If you're a farmer and they're coming in to do an investigation on H two A, you've consented by applying for the H two A to allow them on your property and you don't let them on your property, you just don't get employees anymore. So one's a very simple remedy. Not much mu much risk for a farmer throwing 'em off the site as tremendous risk. And that's where you need to know your rights times gets a little at that times gets a little complex and a little difficult for a lay layperson to understand the complexities of what they're looking at and what you're doing. And it can differ even inside the same agency.

Kathleen J. Jennings (51:35):
Don't we. Thank everybody for joining us for this webinar today. Like I said, please give us feedback if you have any, any suggestions as to future webinars. We would love to hear from you what kinds of topics you wanna hear about. So Larry Stine, thank you very much for being here and my name is Kathleen Jennings and if any of you want to follow up with us after the webinar, you can go to our firm's website, which is www.whimlaw.com. You can reach out to Larry by email, which is jls whim law.com, or myself, I am at kj j whim law.com. Or if you're feeling like actually talking to us, the main firm number is 4 0 4 3 6 5 0 9 0 0. Thank you.

Kathleen J. Jennings (00:00):
Everyone. Welcome to our August webinar presented by Wimberley Lawson. Today we are going to be talking about what to do when a government inspector shows up at your facility. And my name is Kathleen Jennings. I'm one of the attorneys here at Wimberley Lawson. Larry Stine is the other esteemed presenter in this webinar. And he is also someone who has had a vast amount of experience with these government inspectors, including one of, he is one of the few attorneys to successfully kick out OSHA inspectors who decided to overstay their welcome. So we can talk about that in a little bit. If you have any questions, please put them in the chat and we will try to answer them as best we can. And we h would love to get some feedback from all of you about how you enjoyed this webinar or didn't enjoy this webinar, or any suggestions as to how we could conduct it, or even more important suggestions for fu future topics that are important to you and your business. So, again, welcome and Larry and I hope to give you some useful information as to what you should do when a government inspector shows up.

J. Larry Stine (01:26):
As you can imagine, it's not a pleasant day when the government official pulls up into your parking lot and walks into the door and having surprise inspections is not that unusual. OSHA has a provision, the act that prohibits them from telling you to start with. You can tell from some inspections are gonna happen. You report a fatality you can almost count the next day or even later that day. OSHA will will show up. So we wanna talk a little bit about what you can do and what you can't do. So we're going to talk about the topics, but we'll mention the news the day and then answer your questions if you need to, to do that. So, but we'll, we'll go ahead and get started with the discussion. And the first part, so OSHA does not have to give advanced notice of an inspection. True or false?

Kathleen J. Jennings (02:37):
True or false? Everybody think about that. Do they have to give advanced notice of an inspection?

J. Larry Stine (02:45):
I am. They do not have to give advance on those inspection. Let me take this a little bit better. OSHA is peculiar. When Congress wrote the act, they made it a crime for OSHA to give advanced notice. That's the reason you don't get appointment letters. Other federal agencies don't have that. So a lot of times, for example, in a wage hour investigation, your first inkling that you're going to have a wage hour investigation is you receive a letter saying, Hey, we're coming out on such and such a day, and here's the documents we want you to have. But with osha, they're, you're gonna look out in your parking lot and you're gonna see a bland little GSA car drive up. And that's gonna be OSHA coming to see you. Like I said, sometimes you know they're coming cause you've got a fatality, you can count on it, you have a big accident, you know they're coming. Other than that, you don't know whether they're coming or not. Okay? Once, once inside your facility, an ocean inspector can go wherever he or she wants, true or false.

Kathleen J. Jennings (03:54):
And this is where talking about the actual law, not what the ocean inspector really thinks he or she can do, right. Larry

J. Larry Stine (04:02):
<Laugh>. That's right. They'll tell you it's false. They can't just go wherever they want with some small I'll talk about the exceptions for that rule. The way they do it. Now, typically, OSHA's coming in either on a complaint, a report of an amputation, or report of the hospitalization for a report of a fatality. They didn't used to do that, but when they changed the law about reporting and lowered the hospitalizations from three to one, and then added the amputations the entire way that OSHA conducted inspections changed up until that time, they had regularly scheduled selected inspections with wall to walls. They, but when the thing changed, they started being much more reactive, reacting to these points. The problem for Ocean doing that though, is when they come in with a administratively neutral plan, as the Supreme Court said in Barlow, they can do a wall to wall, but when they come in on a complaint, an amputation, a hospitalization, our fatality, their authority is to inspect for what happened for the fatality or for the hospitalization, the amputation.

J. Larry Stine (05:16):
And so they're not able to go everywhere. Now, some inspectors will push back on that really hard and some will not. When you have your opening conference and what happens in an inspection, investigators almost from every agency will sit down and have an opening conference and they're going to tell you what they're going to do. This is when you need to be able to find out what they're doing and how they're going to handle it. So if you have an ocean spectrum, they come in and they said, I got a complaint. And he said, okay, we'll go to the complaint area. And they says, that's grand. I'm leading my inspection to a complaint. And you can rest a little easy. But sometimes you say that and the inspector goes, no, no. I plan to do more than that. And then you need to know what your rights are and how to push back.

J. Larry Stine (06:03):
I will say that a lot of employers really don't like to push back on investigators. That's one reason. Sometimes we go there cuz it's our job to push back on 'em very politely, very respectfully. We don't disrespect them. We don't give 'em a hard time. But very politely and respectfully, we'll go, no, you're not, you're limited to the complaint and we're not letting you go anywhere. But the complaint area, and we've, we've made that stick a couple of times. As Kathleen says, on at least two occasions, they tried to expand it far beyond what they're, what they came in for. And one they came in where a guy actually stuck a screwdriver into electrical panel and had an arc flash in one area. Well, they came in, we let them do that, but the compliance officer wanted to do a wall to wall and we would not let her do it.

J. Larry Stine (07:03):
They came in with a warrant, we quashed the warrant and got OSHAs thrown out successfully. And because the litigation lasted two years, they never did come back and finish up what little bit they did win. They just gave up on it. So the other thing though, when you're pushing back, one of my favorite stories is I got hired by an employee I who had a fatality. And he and I had just met, I have driven down south of Georgia to go into his plant and he had some things in his plant I didn't want the compliance officers to see. And so the compliance officers came and they said, where this fatality, we're gonna do a wall to wall. And I said, no, you're not, you're limiting it to the fatality. And they said, well, it's our policy on to do a wall to wall.

J. Larry Stine (07:49):
And I said, well, why don't you call your office? Cause it was the Savannah OSHA office, which is the one I had just thrown 'em out a few months before and said, tell 'em I'm the lawyer to do crier. And so they went outside, they came back and they went, yeah, we'll do it. My client didn't know me for like three hours afterwards, came to me, he says, you no, when you told them no, I about had a heart attack, he says, and then you made 'em do it. So it was really strange. But you need to know your rights. You can do it, but it's uncomfortable for the employer to do it. That's one reason we can be in big help. But you can do it all right? Yes,

Kathleen J. Jennings (08:29):
Yes, yes. I, I've had, I've had ocean inspectors who've come in on a injury investigation. I can think of at least one who at some point just said, you know what? I'd like to expand the inspection. And I just politely said, no, we're not gonna consent to that. And so he calls his office this and that and ultimately he did not expand it. But yeah, the client gets a little nervous cuz a lot of companies feel like if, if we don't cooperate fully with osha, they're gonna do something really bad. Well the reality is you have constitutional rights when you deal with OSHA or any other governmental agency

J. Larry Stine (09:12):
Right? Now, the other thing that Kathleen, that you've raised is fully cooperate. And that's a real problem sometimes in the mindset. So I have a, as you recall, our name of our inspection is what to do and what not to do. So I'm, before we start on what to do, I want to tell the story about my client who will forever remain unnamed. Gave a prime example. And this story is true. It's so bad I didn't have to exaggerate anything. So I had a client that came in on the phone and said, oh, she was in the door to do a wall to wall back when they did wall to walls and could do it properly. And I said, okay, here's the things I want you to do. I said, I, wherever they, I said, you want me to come? And he goes, no, you're too expensive.

J. Larry Stine (10:02):
And I said, I understand. And you know that do not every time somebody wants an attorney there. So I said, what I want you to do is have two people go out with them, one to be a spokesperson, one to be a note taker. Every time they take a picture. I want you to take a picture from the east to west to south from the north. So I get 4:00 AM I said, and whatever it is. Cause I was talking to the president, I said, you don't talk to them because if you say something, it's really hard if you make a mistake for me to disavow. But the president says, you know, if an HR manager or a maintenance man says something, the president come in and said, no, that's not right. I'm not gonna undo it. And so go ahead and do that. I'm fine.

J. Larry Stine (10:46):
About six months later, which for OSHA's a very bad sign is the statute limitation for OSHAs six months. When they take six months, close to six months issue with citations typically going be big. And so the president calls and says he's gotten a citation from OSHA for a quarter of a million dollars. And this would be early nineties, so that'd probably be the equivalent. About three quarters of a million now. And I, my first question is, I said, okay, great. Can you send me the pictures you took? Cause it'd be very helpful for me to see the pictures. And he goes, well, we didn't take any pictures. I go, okay, so why don't you send me the notes? Then he goes, well we didn't take any notes either. I said, okay, didn't give a little worried. I said, let me talk to the guys that walked around with the compliance officer who went through your plant when he went, well, we decided not to have anybody walk through because we wanted to be fully cooperative.

J. Larry Stine (11:53):
We wanted to show that, that we were fully cooperating. And I said, any other thing you want to tell 'em? He said, well, yeah, I did talk to them a couple of times and you told me not to. I said, okay, so what happened after you got the $250,000? He says, well, when I got it, I sent a letter to the two senators and all the congressmen in the state and I called the area director of senate. And so I said, okay, good. And I picked up the phone to talk to the area director and I told him who represented, and I've known this area director for 20 years at the time. He said, Larry, I don't have anything to talk to. And he hung up on me. So being fully cooperative like that didn't really work. He ended up with a quarter of a million. We managed to knock it down to 75,000 at the time. But those are the things that you don't do. You don't truly, truly be fully cooperative in every way and just let them walk through your plan. You're just asking for disasters. So when, what happens when an ocean inspector or any federal inspector comes up have 'em show you their credentials? They certainly are there. They happen occasions when we've had sales people come in and pretend to be OSHA compliance officers to sell things. Believe it or not,

Kathleen J. Jennings (13:18):
That's, that's troubling

J. Larry Stine (13:20):
Actually. It is troubling, but it actually has, yeah, it actually has happened that a couple of salespeople and we would, we've we've had them investigated afterwards and they're, they don't do it again. No, your rights this is important because it, it is, they do have limits to what they can do. They don't have part blanche for anything and everything and every piece of record and every injure your plant, they just don't have it. They have to limit their inspections to the areas they're in for one thing. They can only inspect places that the courts have allowed under the fourth amendment. They, depending on what they're doing, like if they come in with a scheduled inspection for wall to wall, well then you're going to do it. It's, if it's a complaint, you're gonna limit it to a complaint. But you need to know your rights and you don't have to talk to them. You really don't have to say anything at all. And if you talk to them, one thing you have to do is you have to tell them the truth. You don't have to talk to 'em. And if you got something you don't want to tell 'em, don't tell 'em. But don't lie. This is not, it's not a crime. I'm not saying anything. It is a crime to say something wrong under what is it? 18 USC 1001. Did I get that right Kathleen?

Kathleen J. Jennings (14:53):
I think so. And also, you know, you have, in addition to the fourth Amendment, right, to you know, the government has to have some kind of probable cause in order to come onto and inspect your premises. And in the case of a complaint or an injury or something, that's their probable cause to get them on there. You also have a Fifth Amendment right, which is the right to remain silent. A lot of people don't always avail themselves of that right when they need to. And you have a right to have your company's attorney there. I know in the past we've had some ocean inspectors who've given some pushback on that because they don't, you know, they don't wanna have the attorneys there because we know what we're doing and we know what the limitations are on their authority. And you know, we've heard stories just as the one Larry told, where ocean inspectors show up and basically do what they want because the company doesn't know otherwise.

Kathleen J. Jennings (15:55):
And as a result, you end up with a citation that could have been avoided. So if you say you wanna have your attorney there and they say, well, why, you know, it's, and, and you see this sometimes law enforcement, why do you need an attorney? Have you done something wrong? No, I just, you know, feel more comfortable having my council here. And you know, then there's nothing wrong with that. So don't, don't give into the pushback. If you really wanna have your council there. And I know we have a number of OSHA area offices who when they're told that, you know, one of us is gonna show up, they understand that, you know, we're gonna show up and, and they can't do anything about it.

J. Larry Stine (16:37):
Right? Typically what happens is we tell the client, if they called us, and we do have some clients who have policies that we show up for every ocean inspection regardless, you can put 'em in a nice conference room. They would like to look at your OSHA 300 s and because there's a, a regulation that says you have to produce your OS 300 s within four hours and you can get a penalty. And we can't do anything with OSHA 300 s. They, they are what they are. We'll tell 'em, give 'em the 300 s, let them go in, look at them and we'll be on our way. One other thing I will say, when you put 'em in a conference room and we're on our way, this is a wonderful time for you to send your people back in the plant and look for the low hanging, what I call the low hanging fruit, which just means the obvious things like you go through and you got an extension cord where you shouldn't have an extension cord. You can unplug it in, remove it, or where you've got a, you go in and you've got a drain uncovered. Somebody's set aside the drain cover, you can put the drain cover back cause you can go through and find some of those low hanging fruits so that OSHA doesn't come in and, you know, hit you with a serious citation for not having a drain cover. The fines are now up for serious into the $14,000 range. So, wow.

Kathleen J. Jennings (18:01):
Yeah, yeah. Check your exit doors, make sure that they're not locked. Make sure your exit signs light up. Simple stuff like that. Do your, if you have eye wash areas, make sure the water comes out. You know, just, just simple stuff like that. Yeah, that's the low

J. Larry Stine (18:19):
You can and walk. Do it while you're waiting for us to get there. You'll get an hour or two while we, we get on, get on the way or whoever it is, whether it's us or the corporate safety director. If you use them as a person, you need to sign responsibility. So there's a couple of things that you need to think about. Okay, who's gonna be in charge of handling the ocean investigation? Who's gonna be person in charge? It can be an attorney, it can be your safety director, it can be the corporate safety director. I would not recommend your engineers. Engineers have this bad habit of wanting to explain everything and I just don't recommend them to be the talk the talker. So you got to have somebody in control. Have somebody that can do, be the talker with attorney, corporate safety director, hr, who's good at it.

J. Larry Stine (19:15):
You can have a maintenance guy or a engineer come, but their job is to observe, take pictures, take take notes. And the other thing is, if you have not been able to get all the low hanging fruit and the compliance officers mentioned that if you've got the maintenance guy or the engineer, you can have people nearby and get it fixed immediately. You will get brownie points. You may not even, sometimes they won't even cite you, but you will get brownie points for fixing the things so quickly cuz it, it gives a good first impression. So you need to have those people assigned and understand what's going on. So beforehand, before they show in, decide who's going to handle the overall, who's gonna be the person doing the talking and who's gonna go through the walkthrough. So you need to have those things in your mind.

J. Larry Stine (20:07):
The way I like to say it is you're going to have a written policy as to how to handle an inspection. The question is, do you write it with a little time and think it through? Are you busy writing it as the OSHA compliance software is sitting in your waiting because you will be doing these things. If you don't do it ahead of time, you'll be doing it right then and there on the spot. And the chances of you're not doing it as well is also very careful. Also, the HR person can help you. When, when compliance officers want to talk to employees, oftentimes they'll give you a list of people that they have selected that they want to talk to. Very seldom they give you the opportunity to select them, which is a wonderful opportunity. If you got it, take it. But one of the things I want to tell you, when you have an ocean inspection and they give you a list of people, sit down with the people who know those people and put them in order.

J. Larry Stine (21:12):
Put, put the happiest person who loves to work with you at the, at the top and put that grumbling guy who can never, ever say anything nice. And the world's a horrible, terrible place at the very end. It actually makes a difference with who gets to talk to the compliance officers first. Because if you get two or three people who are happy with you and are saying all the good things, when the grumbler comes in, it's now him gets three other people that the person has already heard you put the grumbler at start, then that's the, that's the impression you're gonna get that you got a problem and then the happy people won't have as much impact. You really need to think about the order you bring the people into for the interviews. You got anything else on the responsibilities, Catherine?

Kathleen J. Jennings (22:03):
Well, we, we have a, a sample written policy that I'll show you in a different slide after this one. And if anybody would like to get a copy of it or talk to us about getting a copy of it, you can reach out to us after the webinar. So we will have a sample policy that you can take a look at,

J. Larry Stine (22:23):
Right? And we also have an article that we can send you if you'll just send us a a link. I will say I haven't updated it since 2017 cause the penalties are 2017, but other than that, it's the same exact text.

Kathleen J. Jennings (22:36):
Nothing is really, but it's be prepared is really the most important point that we wanna make here so that you're not scrambling when they show up. And, and that segues into the next topic or next point, which is do your hazard assessments and safety trainings so that you have and, and document those. If you do them, you don't document them. It's like you haven't done them at all. So perform those hazard assessments and safety trainings. Document them, have that documentation available if you need it.

J. Larry Stine (23:14):
Right? And, and, and the other thing is, a lot of times when you have done a good job with your hazard assessments and your safety training and your programs and you give them to the investigator, whether it's Wage hour or OSHA or whoever, it, it really makes, gives them a comfortable feeling. They feel like they're in a place where you know what you are doing and you want to set that good impression. We know what we're doing, we know how we're doing it. And believe me, it has an impact at times I get, I get pushback from employers who really push back on the records, the hazard assessment and safety training records. Not that they don't do it, but they kind of grumble about the record part of it. Because, well, you know, really the important part of doing the safety and doing the hazard assessment as to the employees, and I don't know if I disagree with that aspect.

J. Larry Stine (24:13):
I think the, the actual training, the actual hazard assessment for the employees as the critical thing. But we're not talking about the employees, we're talking about the investigators. And these records are your defense against employees saying something that's not true. For example, we had a case once in which our client got cited for willful failure to perform training. And the client had done a video of the training, but the, and they had a roster. The employee swore up and down, he was never in that training. And so OSHA went ahead and cited them willful. And I had the safety director come in and said, let me see the safety. And when we were doing the review of the training that we got cited willful, all of a sudden the safety director was sitting there, started letting loose with a string of profanities that I won't put on recording.

J. Larry Stine (25:24):
I'm going, what's wrong? What's wrong? He says, you know that employee, that's not we, that's not the words he used. He says, that's him right there in the training in the video. So I was able to take the video, I took it down to the attorney for the solicitor's office and put it in there and we started showing it and I froze it and I said, there's your employee who's swearing up and down. He didn't get training and the attorney for the other side gave a string of profanities again and, you know, for a very different reason because his whole case went bye-bye. And they dropped the case. Records can win your case in keeping good records give you have good first impression. The records aren't for the employees. The records are for you, for your protection from the employee saying things that aren't true and the compliance officers taking what those employees said, these records can offset bad things that employees said.

J. Larry Stine (26:21):
And sometimes remember, even even guys who are your friend and compliance officer, ask them, have they had, has time training? Well since HazCom training is not exactly high on their list of things in their memory, a lot of 'em will tell them, no, I haven't done any of HazCom training. And then you'll pull the records and show the guys signed it and there it is and he'll look at it and go, yeah, I guess I was there. I don't remember it. But a lot of people were plain, they don't have training for simply because they either think training means a classroom or they just don't remember. And these records are there to protect a you from their lap and memory. Okay, copy the inspector. All right. Okay Kathleen, you put it up so

Kathleen J. Jennings (27:16):
Well copy the inspector. And that's, you know, that's the advice that Larry gave to the client that ignored him, which is when the inspector takes photos, you take photos, somebody follows him and whatever he looks at, make a note, whatever he says, make a note those kinds of things so that way you have a record of exactly what the inspector took photos of and exactly what he looked at or she looked at or commented on so that you have that information that you can, if you have to fight a citation, you can provide that to your attorney,

J. Larry Stine (27:57):
Right? And, and it's if, if we're not there, frankly we are there. Having those pictures and having those notes are critical for putting up the defense. Cause a lot of times what you can be, you can either be able to do is take your own photographs and later show. Most inspectors are really are trying to do their job. They're, they're, you know, they can be issues with inspectors. Some inspectors are frankly lazy and if you find out they're lazy, then we know how to take advantage of them being lazy. Some of 'em don't know what the heck they're looking at. We can do that every once in a while. You'll get somebody that's got a motive and we've had that happen before. Those records can help us communicate with the attorney above the, so that they can see what's actually going on. When the inspectors aren't forthcoming or think about this, inspectors will do multiple inspections and by the time you get to question them, they'll have done 20, 30, 40, 50 inspections and guess what?

J. Larry Stine (29:04):
They don't remember it that well. And so you get your own pictures so that you can bring their memory back even if they're just because they have a pal poor memory. There's a lot of reasons to copy the inspectors and keep your pictures, keep your notes. And particularly if the inspector says something is really favorable, we can do that. That statement is a statement of a party opponent and is admissible in review commission. So when the inspectors tell you, and we've had this happen before, I don't see anything to cite here. And then you get a citation. We had one this month, didn't we Kathleen?

Kathleen J. Jennings (29:48):
We did.

J. Larry Stine (29:49):
We did. And when we went to the informal settlement conference, they withdrew the citations because we had put down the statements, we knew what he was saying and they were in our notes and we couldn't good procures perform periodic internal audits. Honestly, probably the very best thing to protect yourself is to check yourself and have your audits because it keeps them from finding the problems. The other thing about periodic internal audits is it actually helps you from a legal side on the knowledge. I've had cases in where we're doing periodic internal audits and we've gone by a machine and checked off that the machine guard was good and the compliance officer comes in, the next guy during day, I've literally had this happen and somebody in sanitation and a plant forgot to put the guard back on about an hour before they showed up.

J. Larry Stine (30:51):
We were able to beat it because we could show we had an audit, it checked it the day before and it was on and we didn't have any knowledge. So it can help you establish that you're doing audits. The other thing the will help you do is an awful lot of the OSHA cases are based upon constructive knowledge. Not that you actually never saw it, but that you should have seen it. Well, if you're performing your periodic internal audits and you're documenting them, then I've got proofs that I am checking the area. I am looking for those things. I don't have constructive knowledge cuz I did look before. So performing these periodic internal audits help you in two ways. The first thing they do is, and probably the most important is you're able to find things that need to be fixed and fix them there before things happen. The secondary value is what I say. I can use them if something happens and they come in and the machine guard's been taken off and put back on the day of the inspection.

Kathleen J. Jennings (31:54):
But keep in mind, you know, if you do these periodic internal audits and you find potential hazards, then you also need to be committed to fixing those hazards. Because if you do the audit, become aware of a hazard and don't do anything about it. That sounds an awful lot like willful, doesn't it, Larry?

J. Larry Stine (32:16):
It does. And that is an important point to make is it's not enough just to do the audits. You've got to, you've gotta follow up on it. The, the thing I like to see the best is when I see these audits, a lot of times they'll do audits. They'll take a picture. Well, if you fix it herpes sake, take another picture. Sometimes you end up with an audits but nothing but violations of them and nothing other than a little note fixed. You don't have to take pictures. If you do take pictures, take a picture when you fix it so that they believe me. It is very impressive if you're having an audit and the compliance officer looks at the audit and sees the machine guards off and the next picture shows the machines guards back on or they see something is broken and the next picture shows it's fixed or they got a busted electrical panel and the next picture is they fix you.

J. Larry Stine (33:12):
But you do wanna make certain that you document the corrective actions. I will tell you I had a case with one with a very large company where I ended up with 4,800 items and they were really good about documenting them and they did not document the fixing at all. And they, the safety people didn't inspection the operation people were supposed to be to doing the fixing and they did. So, alright, so we have a sample policy here that we've, we've pulled from somebody that has used us and we, we think this is really important to be prepared. This is think about what's going to happen before they show up so that when you have this, when they walk up to the door, you can whip this thing out and you've got it on there. You know what the policy is. Now we've written this one as the attorney, but as I said, you can use the lead person as your vice president for safety or corporate safety director.

J. Larry Stine (34:26):
Somebody who's got some knowledge, understands your rights cuz they really need to understand when they can push back and when they shouldn't and how to handle 'em. And then put their numbers there and tell them what's going on. Now if you got an act, if you got a a death and we handle way too many of them, but we do handle them, that's the time. A lot of times we're going to try to get ourselves there as quickly as possible cuz you're gonna report it within eight hours and OSHA will have somebody there. And I will tell you, I have gone to plants at two in the morning. I've gotten calls that, you know, hey, we got a fatality. I've gotten in my car, driven to the plant, conducted the investigation, figured out what's wrong and by the time the compliance officer shows up, we're ready to figure out and explain what happened and why it happened and come up with the best ways to present it.

J. Larry Stine (35:28):
Sometimes we can present it cuz we didn't do anything wrong and we can do that or we can present it in such a way to, to make it look as good as possible and have things already fixed quickly. But you need to do that. You need to have somebody ready to come and go. This plan, you put your name, put your telephone numbers down so you can call them. And whoever's on there needs to understand that they may, they need to leave their phone on cuz you may need to be able to call them at three o'clock in the morning. By the way, at four o'clock in the morning, all the lights are lined up. You're gonna really make traffic in Atlanta. Really great, Kathleen.

Kathleen J. Jennings (36:06):
Yeah, there's probably a lot less traffic at that point. So, oh,

J. Larry Stine (36:10):
I, I went someplace not too long ago at four o'clock in the morning and the thing I found out I didn't know at the time we're heading through Tucker, was they synced up all the lights. I made it all, I made like eight miles to the expressway without hitting a red light. I've never done that in my life, but

Kathleen J. Jennings (36:24):
Anyway, but we're not encouraging you to call Larry at four o'clock in the morning just so he can see the lights. But if you need to, you know that one of us can be available, right? This moves on. Larry had mentioned a bunch of don'ts in his story of the client who didn't listen to his legal advice. And so these are some of the don'ts that you need to make sure that you don't do in regard to dealing with any government inspector. Understand that managers and supervisors are basically agents of your company. So whatever they say is binding against the company. So you wanna make sure they don't say anything that could be used as an admission against the company, such as if the, if the manager or supervisors, you know, the ocean inspector or any kind of government agent says, well, you know, it looks like this has been a problem for a long time. And the manager says, yeah, it really has. You know, we keep meaning to fix it but we just haven't gotten around to it. That's an admission that can be used against the company later. So don't let anybody say that. It's, it's like any kind of proceeding like a court proceeding criminal proceeding. The less you say the less that can be used against you.

J. Larry Stine (37:49):
Right? Anything you say can be used against you in a court of law

Kathleen J. Jennings (37:53):
Absolutely. Or in any administrative proceeding. So less the better,

J. Larry Stine (38:00):
Right? I'm not gonna give you a Miranda warning, we're gonna give you a Miranda warning. We're telling you don't, don't make admissions against them. That's one reason I don't allow engineers. I still remember I was in a plant one time and the ocean compliance officer looked at a problem and the engineer proceeded to tell them how in the last two years they had been working trying to fix this problem. We got a willful out of the engineer. I mean he was very detailed. All the things they had tried, it's for two years they left the thing wrong. The other thing, the volunteer information it's very hard not to volunteer information. And a lot of people want to cooperate the way I tell clients to do it, and there's a reason I do it. I said, I want you to give the appearance of cooperation.

J. Larry Stine (38:53):
And the reason I keep, I finally, I finally landed on that because if you use the word cooperate with the government, oh my gosh, some of the employees will just go outta the way to pull documents to want to talk to them, explain things. And that's not the way you need to handle it. They are not there to help you. They are there to see if they can find violations and issue citations. They are not judged by on their job performance standards, by how many compliance inspections they found. They're judged on their performance evaluations by how successful they are in finding violations. They won't tell you that. And it's written in ways that's not a direct quota, but believe me, their managers are expecting them to find things and that is their job. And you may not forget it. That's just what they're there to do.

J. Larry Stine (39:48):
And they're not there to help you. They're there to find violations and issue citations and to penalize you. So when the voluntary information just don't do it, what we'll do is we respond to what the compliance officer, the government inspector asks for any nothing else. And if I don't like what he is asked for, sometimes I will not respond the first time. I will make the investigator ask me a second time because sometimes I have found that inspectors forgot what they asked me the first time and then forget it the second time and therefore I don't have to give it to them. They ask for it the second time I give it to them and I try to put it in the light best. And one of the things that we do in the background when they're asking for things and we're in the background looking at stuff, we're trying to figure out the way to put the information in the best light possible.

J. Larry Stine (40:46):
Sometimes that's not as good as we'd like, but we always wanna do it in a way that's best light possible. And you need to do the same thing. If we're not there, how am I gonna present this evidence to them with this documents or this stuff and the best light? I can't. So think about that, but but don't volunteer information because it can be used against you. And when you think it's very helpful, don't do it. What I would recommend, if you think some information's helpful and sometimes it is before you offer it to the compliance officers, go in the back room and talk about it and think, think it, just think it through before you do it. What we don't want you to do is all we do this, we do this, we do this without thinking about it. Cuz you don't always understand all the implications of thinking through. But go in the back room, talk about it. Hey, we think that this is a really great thing and then we'll figure out whether it is or not. And then at that point, only after you've talked about it, thought about the considerations and the implications, might you wanna do that? But never any information just during the investigation, very clear thinking about.

Kathleen J. Jennings (41:54):
Yeah. And a lot of times what what I like to do is if an inspector asks me for specific information while they're walking around, I ask them to just put the complete request in an email. That way we're all on the same page. They have it in writing, I have it in writing, and it's easier to figure out what they're looking for. So I'll do that. Don't make threats against employees who are interviewed by the inspector. When an inspector wants to interview employees, keep in mind that managers and supervisors, anybody who's in a position to make admissions against the company are allowed to have company council present for those interviews. So we can help out in those situations For non-supervisory, non-management employees council is not present and those employees, actually everybody who participates in any kind of inspection like this or interviews is protected from retaliation. So you don't wanna make threats against somebody who was interviewed by an inspector because that is a whole other problem that you don't wanna have to deal with.

J. Larry Stine (43:09):
Yeah. And while it's not on the list and, but I will say this, don't threaten the inspector <laugh>

Kathleen J. Jennings (43:17):
<Laugh>. Yeah, that seems obvious, but we probably do need to put that on the list. You're right.

J. Larry Stine (43:22):
Yeah. I had a compliance officer one time tell me that he went to a construction site and the supervisor at the time told him that the split toilet seat was there so that it wouldn't hit him in the head when he was drinking from the toilet. And he came back the next day and his, that supervisor's boss heard about it and they came back the next day. The supervisor was sitting in the corner wearing a dance hat and a dress. That was the way,

Kathleen J. Jennings (43:51):
No, that, that's the best way to deal with that either, but that's probably a topic for a a different webinar <laugh>. We've talked about allowing access beyond where the inspectors authorized and also allowing the inspector to just walk through your facility unaccompanied, don't do those things. As Larry pointed out, they're just there to find issues that they can use to issue a citation. And so don't let them just go anywhere without anybody following them and seeing what they're doing. That's just gonna lead to trouble.

J. Larry Stine (44:30):
Right. And keep 'em where they're authorized because yes, if I, if I've got it in one area and I don't let, I don't have to let them go in the other nine tenths of the plant, then I, I keep any of the violations on the nine 10th of plants from his vision. And it's very helpful that way to do that.

Kathleen J. Jennings (44:48):
And even sometimes you may even wanna plan a path of ingress and egress to the particular area that they do need to inspect to minimize the number of areas that they can see in plain sight because anything that they see in plain sight is also fair game for a citation.

J. Larry Stine (45:10):
It's a, that's a very good point, Kathleen, is plan, plan the route to the area you're going to do. I have literally taken umbrellas and walked outside in the pouring rain to walk around the outside the plant and have somebody open a back door to go into the area instead of walking them through the plant. We have done that before and you need to think about it if you've got a accent or event in an area in the back of the plant, is there a different way to get the compliance officers there without having to walk through the whole plant? So it's another thing you need to, to, to plan and, and take care of.

Kathleen J. Jennings (45:55):
Well, we've covered a lot of information and we are at the point of asking if anybody has any questions. I don't see any in the chat. So either Larry and I have done an incredibly good job in presenting this material or y'all are just afraid to type a question in the chat.

J. Larry Stine (46:21):
<Laugh>,

Kathleen J. Jennings (46:22):
I guess we've done an incredibly good job, right Larry

J. Larry Stine (46:25):
As always, Gavin <laugh> we're glad you came and really when you think about it, if you haven't made your plan on how you're gonna handle those inspections,

J. Larry Stine (46:40):
If the you leave here with nothing else, go back, sit down, write out a plan of what you are going to do before the inspector shows up at your doorstep because that's going to give you a lot more confidence in what you're doing, who's going to be there. And if you've got somebody who's going to be the designated person, give them an opportunity to get some training. So spend some time reading, figuring out how they're going to handle it and know their rights. Cuz that's the critical thing in handling these inspections is some compliance officers are very pushing and some are not.

Kathleen J. Jennings (47:21):
Is I I P P still the most popular violation,

J. Larry Stine (47:27):
The most pop, the most popular frankly, is the HazCom violations violations of 19 10, 1200. We get more HazCom violations than anything else. The other one we get a lot of now is lockout tagout. And then nineteen ten two twelve a one, which is the machine guard standard, still is in the top 10 of the of the of the violations. The other thing we see a lot now is personal protective equipment. Not doing the hazard. Oh, like Hasco, okay, thanks. Yeah. Employee training. Yeah. yeah, we get employed a lot of times now with the citations. You'll see almost two of 'em. Hey, you, you didn't do the lockout tagout and therefore ifso facto, you didn't do the train. Not necessarily true, but a lot of compliance officers kind of have this ipso facto rationale that if I have a violation, you didn't properly train them, therefore you didn't train them and it doesn't work. But we do get that citation all the time. And I'm lockout tagout seems to be the one we're dealing with the most lately. 

Kathleen J. Jennings (48:44):
Well that's, you know, if you don't do it, that's when you're likely to get hurt. So those tend to be injuries, I think when people aren't using those procedures. I think I also wanna point out that even though we've spent most of the time discussing OSHA inspections these points also apply to dealing with other government inspectors insofar as you still have your constitutional rights, your fourth amendment right, against an unlawful search and seizure, your fifth Amendment right against self-incrimination or incrimination of the company. So those rights exist whenever the government is, is coming after you and you need to be aware of them and be prepared for any kind of government agent. Really depends on the type of business that you're in. That will determine the type of government agents that will come into your facility. In addition to OSHA's Larry pointed out, wage and hour inspectors can be likely to show up and at least we'll give you a little bit of notice so you can have everything in order and, and have the proper person who is the face of the company dealing with them. But it's, it's important to have those ducks in a row, have that face of the company determined, have someone who is knowledgeable, who is calm, who is mature, and is not likely to threaten whichever inspector shows up. Because that is the face of the company. And that will go a long way toward the inspector's attitude, toward the inspection and towards your company.

J. Larry Stine (50:30):
Right? The the other thing in wage hour inspections, it's going back to know your rights, the wage hour, their rights, and the way they handle it depends on the type of inspection. For example, if you're just getting a general wage hour investigator, you're a private employer. If you tell 'em though, they can't come on the premises, they will not come on your premises. They will do a sidewalk inspection. If you're a farmer and they're coming in to do an investigation on H two A, you've consented by applying for the H two A to allow them on your property and you don't let them on your property, you just don't get employees anymore. So one's a very simple remedy. Not much mu much risk for a farmer throwing 'em off the site as tremendous risk. And that's where you need to know your rights times gets a little at that times gets a little complex and a little difficult for a lay layperson to understand the complexities of what they're looking at and what you're doing. And it can differ even inside the same agency.

Kathleen J. Jennings (51:35):
Don't we. Thank everybody for joining us for this webinar today. Like I said, please give us feedback if you have any, any suggestions as to future webinars. We would love to hear from you what kinds of topics you wanna hear about. So Larry Stine, thank you very much for being here and my name is Kathleen Jennings and if any of you want to follow up with us after the webinar, you can go to our firm's website, which is www.whimlaw.com. You can reach out to Larry by email, which is jls whim law.com, or myself, I am at kj j whim law.com. Or if you're feeling like actually talking to us, the main firm number is 4 0 4 3 6 5 0 9 0 0. Thank you.

Kathleen J. Jennings (00:00):
Everyone. Welcome to our August webinar presented by Wimberley Lawson. Today we are going to be talking about what to do when a government inspector shows up at your facility. And my name is Kathleen Jennings. I'm one of the attorneys here at Wimberley Lawson. Larry Stine is the other esteemed presenter in this webinar. And he is also someone who has had a vast amount of experience with these government inspectors, including one of, he is one of the few attorneys to successfully kick out OSHA inspectors who decided to overstay their welcome. So we can talk about that in a little bit. If you have any questions, please put them in the chat and we will try to answer them as best we can. And we h would love to get some feedback from all of you about how you enjoyed this webinar or didn't enjoy this webinar, or any suggestions as to how we could conduct it, or even more important suggestions for fu future topics that are important to you and your business. So, again, welcome and Larry and I hope to give you some useful information as to what you should do when a government inspector shows up.

J. Larry Stine (01:26):
As you can imagine, it's not a pleasant day when the government official pulls up into your parking lot and walks into the door and having surprise inspections is not that unusual. OSHA has a provision, the act that prohibits them from telling you to start with. You can tell from some inspections are gonna happen. You report a fatality you can almost count the next day or even later that day. OSHA will will show up. So we wanna talk a little bit about what you can do and what you can't do. So we're going to talk about the topics, but we'll mention the news the day and then answer your questions if you need to, to do that. So, but we'll, we'll go ahead and get started with the discussion. And the first part, so OSHA does not have to give advanced notice of an inspection. True or false?

Kathleen J. Jennings (02:37):
True or false? Everybody think about that. Do they have to give advanced notice of an inspection?

J. Larry Stine (02:45):
I am. They do not have to give advance on those inspection. Let me take this a little bit better. OSHA is peculiar. When Congress wrote the act, they made it a crime for OSHA to give advanced notice. That's the reason you don't get appointment letters. Other federal agencies don't have that. So a lot of times, for example, in a wage hour investigation, your first inkling that you're going to have a wage hour investigation is you receive a letter saying, Hey, we're coming out on such and such a day, and here's the documents we want you to have. But with osha, they're, you're gonna look out in your parking lot and you're gonna see a bland little GSA car drive up. And that's gonna be OSHA coming to see you. Like I said, sometimes you know they're coming cause you've got a fatality, you can count on it, you have a big accident, you know they're coming. Other than that, you don't know whether they're coming or not. Okay? Once, once inside your facility, an ocean inspector can go wherever he or she wants, true or false.

Kathleen J. Jennings (03:54):
And this is where talking about the actual law, not what the ocean inspector really thinks he or she can do, right. Larry

J. Larry Stine (04:02):
<Laugh>. That's right. They'll tell you it's false. They can't just go wherever they want with some small I'll talk about the exceptions for that rule. The way they do it. Now, typically, OSHA's coming in either on a complaint, a report of an amputation, or report of the hospitalization for a report of a fatality. They didn't used to do that, but when they changed the law about reporting and lowered the hospitalizations from three to one, and then added the amputations the entire way that OSHA conducted inspections changed up until that time, they had regularly scheduled selected inspections with wall to walls. They, but when the thing changed, they started being much more reactive, reacting to these points. The problem for Ocean doing that though, is when they come in with a administratively neutral plan, as the Supreme Court said in Barlow, they can do a wall to wall, but when they come in on a complaint, an amputation, a hospitalization, our fatality, their authority is to inspect for what happened for the fatality or for the hospitalization, the amputation.

J. Larry Stine (05:16):
And so they're not able to go everywhere. Now, some inspectors will push back on that really hard and some will not. When you have your opening conference and what happens in an inspection, investigators almost from every agency will sit down and have an opening conference and they're going to tell you what they're going to do. This is when you need to be able to find out what they're doing and how they're going to handle it. So if you have an ocean spectrum, they come in and they said, I got a complaint. And he said, okay, we'll go to the complaint area. And they says, that's grand. I'm leading my inspection to a complaint. And you can rest a little easy. But sometimes you say that and the inspector goes, no, no. I plan to do more than that. And then you need to know what your rights are and how to push back.

J. Larry Stine (06:03):
I will say that a lot of employers really don't like to push back on investigators. That's one reason. Sometimes we go there cuz it's our job to push back on 'em very politely, very respectfully. We don't disrespect them. We don't give 'em a hard time. But very politely and respectfully, we'll go, no, you're not, you're limited to the complaint and we're not letting you go anywhere. But the complaint area, and we've, we've made that stick a couple of times. As Kathleen says, on at least two occasions, they tried to expand it far beyond what they're, what they came in for. And one they came in where a guy actually stuck a screwdriver into electrical panel and had an arc flash in one area. Well, they came in, we let them do that, but the compliance officer wanted to do a wall to wall and we would not let her do it.

J. Larry Stine (07:03):
They came in with a warrant, we quashed the warrant and got OSHAs thrown out successfully. And because the litigation lasted two years, they never did come back and finish up what little bit they did win. They just gave up on it. So the other thing though, when you're pushing back, one of my favorite stories is I got hired by an employee I who had a fatality. And he and I had just met, I have driven down south of Georgia to go into his plant and he had some things in his plant I didn't want the compliance officers to see. And so the compliance officers came and they said, where this fatality, we're gonna do a wall to wall. And I said, no, you're not, you're limiting it to the fatality. And they said, well, it's our policy on to do a wall to wall.

J. Larry Stine (07:49):
And I said, well, why don't you call your office? Cause it was the Savannah OSHA office, which is the one I had just thrown 'em out a few months before and said, tell 'em I'm the lawyer to do crier. And so they went outside, they came back and they went, yeah, we'll do it. My client didn't know me for like three hours afterwards, came to me, he says, you no, when you told them no, I about had a heart attack, he says, and then you made 'em do it. So it was really strange. But you need to know your rights. You can do it, but it's uncomfortable for the employer to do it. That's one reason we can be in big help. But you can do it all right? Yes,

Kathleen J. Jennings (08:29):
Yes, yes. I, I've had, I've had ocean inspectors who've come in on a injury investigation. I can think of at least one who at some point just said, you know what? I'd like to expand the inspection. And I just politely said, no, we're not gonna consent to that. And so he calls his office this and that and ultimately he did not expand it. But yeah, the client gets a little nervous cuz a lot of companies feel like if, if we don't cooperate fully with osha, they're gonna do something really bad. Well the reality is you have constitutional rights when you deal with OSHA or any other governmental agency

J. Larry Stine (09:12):
Right? Now, the other thing that Kathleen, that you've raised is fully cooperate. And that's a real problem sometimes in the mindset. So I have a, as you recall, our name of our inspection is what to do and what not to do. So I'm, before we start on what to do, I want to tell the story about my client who will forever remain unnamed. Gave a prime example. And this story is true. It's so bad I didn't have to exaggerate anything. So I had a client that came in on the phone and said, oh, she was in the door to do a wall to wall back when they did wall to walls and could do it properly. And I said, okay, here's the things I want you to do. I said, I, wherever they, I said, you want me to come? And he goes, no, you're too expensive.

J. Larry Stine (10:02):
And I said, I understand. And you know that do not every time somebody wants an attorney there. So I said, what I want you to do is have two people go out with them, one to be a spokesperson, one to be a note taker. Every time they take a picture. I want you to take a picture from the east to west to south from the north. So I get 4:00 AM I said, and whatever it is. Cause I was talking to the president, I said, you don't talk to them because if you say something, it's really hard if you make a mistake for me to disavow. But the president says, you know, if an HR manager or a maintenance man says something, the president come in and said, no, that's not right. I'm not gonna undo it. And so go ahead and do that. I'm fine.

J. Larry Stine (10:46):
About six months later, which for OSHA's a very bad sign is the statute limitation for OSHAs six months. When they take six months, close to six months issue with citations typically going be big. And so the president calls and says he's gotten a citation from OSHA for a quarter of a million dollars. And this would be early nineties, so that'd probably be the equivalent. About three quarters of a million now. And I, my first question is, I said, okay, great. Can you send me the pictures you took? Cause it'd be very helpful for me to see the pictures. And he goes, well, we didn't take any pictures. I go, okay, so why don't you send me the notes? Then he goes, well we didn't take any notes either. I said, okay, didn't give a little worried. I said, let me talk to the guys that walked around with the compliance officer who went through your plant when he went, well, we decided not to have anybody walk through because we wanted to be fully cooperative.

J. Larry Stine (11:53):
We wanted to show that, that we were fully cooperating. And I said, any other thing you want to tell 'em? He said, well, yeah, I did talk to them a couple of times and you told me not to. I said, okay, so what happened after you got the $250,000? He says, well, when I got it, I sent a letter to the two senators and all the congressmen in the state and I called the area director of senate. And so I said, okay, good. And I picked up the phone to talk to the area director and I told him who represented, and I've known this area director for 20 years at the time. He said, Larry, I don't have anything to talk to. And he hung up on me. So being fully cooperative like that didn't really work. He ended up with a quarter of a million. We managed to knock it down to 75,000 at the time. But those are the things that you don't do. You don't truly, truly be fully cooperative in every way and just let them walk through your plan. You're just asking for disasters. So when, what happens when an ocean inspector or any federal inspector comes up have 'em show you their credentials? They certainly are there. They happen occasions when we've had sales people come in and pretend to be OSHA compliance officers to sell things. Believe it or not,

Kathleen J. Jennings (13:18):
That's, that's troubling

J. Larry Stine (13:20):
Actually. It is troubling, but it actually has, yeah, it actually has happened that a couple of salespeople and we would, we've we've had them investigated afterwards and they're, they don't do it again. No, your rights this is important because it, it is, they do have limits to what they can do. They don't have part blanche for anything and everything and every piece of record and every injure your plant, they just don't have it. They have to limit their inspections to the areas they're in for one thing. They can only inspect places that the courts have allowed under the fourth amendment. They, depending on what they're doing, like if they come in with a scheduled inspection for wall to wall, well then you're going to do it. It's, if it's a complaint, you're gonna limit it to a complaint. But you need to know your rights and you don't have to talk to them. You really don't have to say anything at all. And if you talk to them, one thing you have to do is you have to tell them the truth. You don't have to talk to 'em. And if you got something you don't want to tell 'em, don't tell 'em. But don't lie. This is not, it's not a crime. I'm not saying anything. It is a crime to say something wrong under what is it? 18 USC 1001. Did I get that right Kathleen?

Kathleen J. Jennings (14:53):
I think so. And also, you know, you have, in addition to the fourth Amendment, right, to you know, the government has to have some kind of probable cause in order to come onto and inspect your premises. And in the case of a complaint or an injury or something, that's their probable cause to get them on there. You also have a Fifth Amendment right, which is the right to remain silent. A lot of people don't always avail themselves of that right when they need to. And you have a right to have your company's attorney there. I know in the past we've had some ocean inspectors who've given some pushback on that because they don't, you know, they don't wanna have the attorneys there because we know what we're doing and we know what the limitations are on their authority. And you know, we've heard stories just as the one Larry told, where ocean inspectors show up and basically do what they want because the company doesn't know otherwise.

Kathleen J. Jennings (15:55):
And as a result, you end up with a citation that could have been avoided. So if you say you wanna have your attorney there and they say, well, why, you know, it's, and, and you see this sometimes law enforcement, why do you need an attorney? Have you done something wrong? No, I just, you know, feel more comfortable having my council here. And you know, then there's nothing wrong with that. So don't, don't give into the pushback. If you really wanna have your council there. And I know we have a number of OSHA area offices who when they're told that, you know, one of us is gonna show up, they understand that, you know, we're gonna show up and, and they can't do anything about it.

J. Larry Stine (16:37):
Right? Typically what happens is we tell the client, if they called us, and we do have some clients who have policies that we show up for every ocean inspection regardless, you can put 'em in a nice conference room. They would like to look at your OSHA 300 s and because there's a, a regulation that says you have to produce your OS 300 s within four hours and you can get a penalty. And we can't do anything with OSHA 300 s. They, they are what they are. We'll tell 'em, give 'em the 300 s, let them go in, look at them and we'll be on our way. One other thing I will say, when you put 'em in a conference room and we're on our way, this is a wonderful time for you to send your people back in the plant and look for the low hanging, what I call the low hanging fruit, which just means the obvious things like you go through and you got an extension cord where you shouldn't have an extension cord. You can unplug it in, remove it, or where you've got a, you go in and you've got a drain uncovered. Somebody's set aside the drain cover, you can put the drain cover back cause you can go through and find some of those low hanging fruits so that OSHA doesn't come in and, you know, hit you with a serious citation for not having a drain cover. The fines are now up for serious into the $14,000 range. So, wow.

Kathleen J. Jennings (18:01):
Yeah, yeah. Check your exit doors, make sure that they're not locked. Make sure your exit signs light up. Simple stuff like that. Do your, if you have eye wash areas, make sure the water comes out. You know, just, just simple stuff like that. Yeah, that's the low

J. Larry Stine (18:19):
You can and walk. Do it while you're waiting for us to get there. You'll get an hour or two while we, we get on, get on the way or whoever it is, whether it's us or the corporate safety director. If you use them as a person, you need to sign responsibility. So there's a couple of things that you need to think about. Okay, who's gonna be in charge of handling the ocean investigation? Who's gonna be person in charge? It can be an attorney, it can be your safety director, it can be the corporate safety director. I would not recommend your engineers. Engineers have this bad habit of wanting to explain everything and I just don't recommend them to be the talk the talker. So you got to have somebody in control. Have somebody that can do, be the talker with attorney, corporate safety director, hr, who's good at it.

J. Larry Stine (19:15):
You can have a maintenance guy or a engineer come, but their job is to observe, take pictures, take take notes. And the other thing is, if you have not been able to get all the low hanging fruit and the compliance officers mentioned that if you've got the maintenance guy or the engineer, you can have people nearby and get it fixed immediately. You will get brownie points. You may not even, sometimes they won't even cite you, but you will get brownie points for fixing the things so quickly cuz it, it gives a good first impression. So you need to have those people assigned and understand what's going on. So beforehand, before they show in, decide who's going to handle the overall, who's gonna be the person doing the talking and who's gonna go through the walkthrough. So you need to have those things in your mind.

J. Larry Stine (20:07):
The way I like to say it is you're going to have a written policy as to how to handle an inspection. The question is, do you write it with a little time and think it through? Are you busy writing it as the OSHA compliance software is sitting in your waiting because you will be doing these things. If you don't do it ahead of time, you'll be doing it right then and there on the spot. And the chances of you're not doing it as well is also very careful. Also, the HR person can help you. When, when compliance officers want to talk to employees, oftentimes they'll give you a list of people that they have selected that they want to talk to. Very seldom they give you the opportunity to select them, which is a wonderful opportunity. If you got it, take it. But one of the things I want to tell you, when you have an ocean inspection and they give you a list of people, sit down with the people who know those people and put them in order.

J. Larry Stine (21:12):
Put, put the happiest person who loves to work with you at the, at the top and put that grumbling guy who can never, ever say anything nice. And the world's a horrible, terrible place at the very end. It actually makes a difference with who gets to talk to the compliance officers first. Because if you get two or three people who are happy with you and are saying all the good things, when the grumbler comes in, it's now him gets three other people that the person has already heard you put the grumbler at start, then that's the, that's the impression you're gonna get that you got a problem and then the happy people won't have as much impact. You really need to think about the order you bring the people into for the interviews. You got anything else on the responsibilities, Catherine?

Kathleen J. Jennings (22:03):
Well, we, we have a, a sample written policy that I'll show you in a different slide after this one. And if anybody would like to get a copy of it or talk to us about getting a copy of it, you can reach out to us after the webinar. So we will have a sample policy that you can take a look at,

J. Larry Stine (22:23):
Right? And we also have an article that we can send you if you'll just send us a a link. I will say I haven't updated it since 2017 cause the penalties are 2017, but other than that, it's the same exact text.

Kathleen J. Jennings (22:36):
Nothing is really, but it's be prepared is really the most important point that we wanna make here so that you're not scrambling when they show up. And, and that segues into the next topic or next point, which is do your hazard assessments and safety trainings so that you have and, and document those. If you do them, you don't document them. It's like you haven't done them at all. So perform those hazard assessments and safety trainings. Document them, have that documentation available if you need it.

J. Larry Stine (23:14):
Right? And, and, and the other thing is, a lot of times when you have done a good job with your hazard assessments and your safety training and your programs and you give them to the investigator, whether it's Wage hour or OSHA or whoever, it, it really makes, gives them a comfortable feeling. They feel like they're in a place where you know what you are doing and you want to set that good impression. We know what we're doing, we know how we're doing it. And believe me, it has an impact at times I get, I get pushback from employers who really push back on the records, the hazard assessment and safety training records. Not that they don't do it, but they kind of grumble about the record part of it. Because, well, you know, really the important part of doing the safety and doing the hazard assessment as to the employees, and I don't know if I disagree with that aspect.

J. Larry Stine (24:13):
I think the, the actual training, the actual hazard assessment for the employees as the critical thing. But we're not talking about the employees, we're talking about the investigators. And these records are your defense against employees saying something that's not true. For example, we had a case once in which our client got cited for willful failure to perform training. And the client had done a video of the training, but the, and they had a roster. The employee swore up and down, he was never in that training. And so OSHA went ahead and cited them willful. And I had the safety director come in and said, let me see the safety. And when we were doing the review of the training that we got cited willful, all of a sudden the safety director was sitting there, started letting loose with a string of profanities that I won't put on recording.

J. Larry Stine (25:24):
I'm going, what's wrong? What's wrong? He says, you know that employee, that's not we, that's not the words he used. He says, that's him right there in the training in the video. So I was able to take the video, I took it down to the attorney for the solicitor's office and put it in there and we started showing it and I froze it and I said, there's your employee who's swearing up and down. He didn't get training and the attorney for the other side gave a string of profanities again and, you know, for a very different reason because his whole case went bye-bye. And they dropped the case. Records can win your case in keeping good records give you have good first impression. The records aren't for the employees. The records are for you, for your protection from the employee saying things that aren't true and the compliance officers taking what those employees said, these records can offset bad things that employees said.

J. Larry Stine (26:21):
And sometimes remember, even even guys who are your friend and compliance officer, ask them, have they had, has time training? Well since HazCom training is not exactly high on their list of things in their memory, a lot of 'em will tell them, no, I haven't done any of HazCom training. And then you'll pull the records and show the guys signed it and there it is and he'll look at it and go, yeah, I guess I was there. I don't remember it. But a lot of people were plain, they don't have training for simply because they either think training means a classroom or they just don't remember. And these records are there to protect a you from their lap and memory. Okay, copy the inspector. All right. Okay Kathleen, you put it up so

Kathleen J. Jennings (27:16):
Well copy the inspector. And that's, you know, that's the advice that Larry gave to the client that ignored him, which is when the inspector takes photos, you take photos, somebody follows him and whatever he looks at, make a note, whatever he says, make a note those kinds of things so that way you have a record of exactly what the inspector took photos of and exactly what he looked at or she looked at or commented on so that you have that information that you can, if you have to fight a citation, you can provide that to your attorney,

J. Larry Stine (27:57):
Right? And, and it's if, if we're not there, frankly we are there. Having those pictures and having those notes are critical for putting up the defense. Cause a lot of times what you can be, you can either be able to do is take your own photographs and later show. Most inspectors are really are trying to do their job. They're, they're, you know, they can be issues with inspectors. Some inspectors are frankly lazy and if you find out they're lazy, then we know how to take advantage of them being lazy. Some of 'em don't know what the heck they're looking at. We can do that every once in a while. You'll get somebody that's got a motive and we've had that happen before. Those records can help us communicate with the attorney above the, so that they can see what's actually going on. When the inspectors aren't forthcoming or think about this, inspectors will do multiple inspections and by the time you get to question them, they'll have done 20, 30, 40, 50 inspections and guess what?

J. Larry Stine (29:04):
They don't remember it that well. And so you get your own pictures so that you can bring their memory back even if they're just because they have a pal poor memory. There's a lot of reasons to copy the inspectors and keep your pictures, keep your notes. And particularly if the inspector says something is really favorable, we can do that. That statement is a statement of a party opponent and is admissible in review commission. So when the inspectors tell you, and we've had this happen before, I don't see anything to cite here. And then you get a citation. We had one this month, didn't we Kathleen?

Kathleen J. Jennings (29:48):
We did.

J. Larry Stine (29:49):
We did. And when we went to the informal settlement conference, they withdrew the citations because we had put down the statements, we knew what he was saying and they were in our notes and we couldn't good procures perform periodic internal audits. Honestly, probably the very best thing to protect yourself is to check yourself and have your audits because it keeps them from finding the problems. The other thing about periodic internal audits is it actually helps you from a legal side on the knowledge. I've had cases in where we're doing periodic internal audits and we've gone by a machine and checked off that the machine guard was good and the compliance officer comes in, the next guy during day, I've literally had this happen and somebody in sanitation and a plant forgot to put the guard back on about an hour before they showed up.

J. Larry Stine (30:51):
We were able to beat it because we could show we had an audit, it checked it the day before and it was on and we didn't have any knowledge. So it can help you establish that you're doing audits. The other thing the will help you do is an awful lot of the OSHA cases are based upon constructive knowledge. Not that you actually never saw it, but that you should have seen it. Well, if you're performing your periodic internal audits and you're documenting them, then I've got proofs that I am checking the area. I am looking for those things. I don't have constructive knowledge cuz I did look before. So performing these periodic internal audits help you in two ways. The first thing they do is, and probably the most important is you're able to find things that need to be fixed and fix them there before things happen. The secondary value is what I say. I can use them if something happens and they come in and the machine guard's been taken off and put back on the day of the inspection.

Kathleen J. Jennings (31:54):
But keep in mind, you know, if you do these periodic internal audits and you find potential hazards, then you also need to be committed to fixing those hazards. Because if you do the audit, become aware of a hazard and don't do anything about it. That sounds an awful lot like willful, doesn't it, Larry?

J. Larry Stine (32:16):
It does. And that is an important point to make is it's not enough just to do the audits. You've got to, you've gotta follow up on it. The, the thing I like to see the best is when I see these audits, a lot of times they'll do audits. They'll take a picture. Well, if you fix it herpes sake, take another picture. Sometimes you end up with an audits but nothing but violations of them and nothing other than a little note fixed. You don't have to take pictures. If you do take pictures, take a picture when you fix it so that they believe me. It is very impressive if you're having an audit and the compliance officer looks at the audit and sees the machine guards off and the next picture shows the machines guards back on or they see something is broken and the next picture shows it's fixed or they got a busted electrical panel and the next picture is they fix you.

J. Larry Stine (33:12):
But you do wanna make certain that you document the corrective actions. I will tell you I had a case with one with a very large company where I ended up with 4,800 items and they were really good about documenting them and they did not document the fixing at all. And they, the safety people didn't inspection the operation people were supposed to be to doing the fixing and they did. So, alright, so we have a sample policy here that we've, we've pulled from somebody that has used us and we, we think this is really important to be prepared. This is think about what's going to happen before they show up so that when you have this, when they walk up to the door, you can whip this thing out and you've got it on there. You know what the policy is. Now we've written this one as the attorney, but as I said, you can use the lead person as your vice president for safety or corporate safety director.

J. Larry Stine (34:26):
Somebody who's got some knowledge, understands your rights cuz they really need to understand when they can push back and when they shouldn't and how to handle 'em. And then put their numbers there and tell them what's going on. Now if you got an act, if you got a a death and we handle way too many of them, but we do handle them, that's the time. A lot of times we're going to try to get ourselves there as quickly as possible cuz you're gonna report it within eight hours and OSHA will have somebody there. And I will tell you, I have gone to plants at two in the morning. I've gotten calls that, you know, hey, we got a fatality. I've gotten in my car, driven to the plant, conducted the investigation, figured out what's wrong and by the time the compliance officer shows up, we're ready to figure out and explain what happened and why it happened and come up with the best ways to present it.

J. Larry Stine (35:28):
Sometimes we can present it cuz we didn't do anything wrong and we can do that or we can present it in such a way to, to make it look as good as possible and have things already fixed quickly. But you need to do that. You need to have somebody ready to come and go. This plan, you put your name, put your telephone numbers down so you can call them. And whoever's on there needs to understand that they may, they need to leave their phone on cuz you may need to be able to call them at three o'clock in the morning. By the way, at four o'clock in the morning, all the lights are lined up. You're gonna really make traffic in Atlanta. Really great, Kathleen.

Kathleen J. Jennings (36:06):
Yeah, there's probably a lot less traffic at that point. So, oh,

J. Larry Stine (36:10):
I, I went someplace not too long ago at four o'clock in the morning and the thing I found out I didn't know at the time we're heading through Tucker, was they synced up all the lights. I made it all, I made like eight miles to the expressway without hitting a red light. I've never done that in my life, but

Kathleen J. Jennings (36:24):
Anyway, but we're not encouraging you to call Larry at four o'clock in the morning just so he can see the lights. But if you need to, you know that one of us can be available, right? This moves on. Larry had mentioned a bunch of don'ts in his story of the client who didn't listen to his legal advice. And so these are some of the don'ts that you need to make sure that you don't do in regard to dealing with any government inspector. Understand that managers and supervisors are basically agents of your company. So whatever they say is binding against the company. So you wanna make sure they don't say anything that could be used as an admission against the company, such as if the, if the manager or supervisors, you know, the ocean inspector or any kind of government agent says, well, you know, it looks like this has been a problem for a long time. And the manager says, yeah, it really has. You know, we keep meaning to fix it but we just haven't gotten around to it. That's an admission that can be used against the company later. So don't let anybody say that. It's, it's like any kind of proceeding like a court proceeding criminal proceeding. The less you say the less that can be used against you.

J. Larry Stine (37:49):
Right? Anything you say can be used against you in a court of law

Kathleen J. Jennings (37:53):
Absolutely. Or in any administrative proceeding. So less the better,

J. Larry Stine (38:00):
Right? I'm not gonna give you a Miranda warning, we're gonna give you a Miranda warning. We're telling you don't, don't make admissions against them. That's one reason I don't allow engineers. I still remember I was in a plant one time and the ocean compliance officer looked at a problem and the engineer proceeded to tell them how in the last two years they had been working trying to fix this problem. We got a willful out of the engineer. I mean he was very detailed. All the things they had tried, it's for two years they left the thing wrong. The other thing, the volunteer information it's very hard not to volunteer information. And a lot of people want to cooperate the way I tell clients to do it, and there's a reason I do it. I said, I want you to give the appearance of cooperation.

J. Larry Stine (38:53):
And the reason I keep, I finally, I finally landed on that because if you use the word cooperate with the government, oh my gosh, some of the employees will just go outta the way to pull documents to want to talk to them, explain things. And that's not the way you need to handle it. They are not there to help you. They are there to see if they can find violations and issue citations. They are not judged by on their job performance standards, by how many compliance inspections they found. They're judged on their performance evaluations by how successful they are in finding violations. They won't tell you that. And it's written in ways that's not a direct quota, but believe me, their managers are expecting them to find things and that is their job. And you may not forget it. That's just what they're there to do.

J. Larry Stine (39:48):
And they're not there to help you. They're there to find violations and issue citations and to penalize you. So when the voluntary information just don't do it, what we'll do is we respond to what the compliance officer, the government inspector asks for any nothing else. And if I don't like what he is asked for, sometimes I will not respond the first time. I will make the investigator ask me a second time because sometimes I have found that inspectors forgot what they asked me the first time and then forget it the second time and therefore I don't have to give it to them. They ask for it the second time I give it to them and I try to put it in the light best. And one of the things that we do in the background when they're asking for things and we're in the background looking at stuff, we're trying to figure out the way to put the information in the best light possible.

J. Larry Stine (40:46):
Sometimes that's not as good as we'd like, but we always wanna do it in a way that's best light possible. And you need to do the same thing. If we're not there, how am I gonna present this evidence to them with this documents or this stuff and the best light? I can't. So think about that, but but don't volunteer information because it can be used against you. And when you think it's very helpful, don't do it. What I would recommend, if you think some information's helpful and sometimes it is before you offer it to the compliance officers, go in the back room and talk about it and think, think it, just think it through before you do it. What we don't want you to do is all we do this, we do this, we do this without thinking about it. Cuz you don't always understand all the implications of thinking through. But go in the back room, talk about it. Hey, we think that this is a really great thing and then we'll figure out whether it is or not. And then at that point, only after you've talked about it, thought about the considerations and the implications, might you wanna do that? But never any information just during the investigation, very clear thinking about.

Kathleen J. Jennings (41:54):
Yeah. And a lot of times what what I like to do is if an inspector asks me for specific information while they're walking around, I ask them to just put the complete request in an email. That way we're all on the same page. They have it in writing, I have it in writing, and it's easier to figure out what they're looking for. So I'll do that. Don't make threats against employees who are interviewed by the inspector. When an inspector wants to interview employees, keep in mind that managers and supervisors, anybody who's in a position to make admissions against the company are allowed to have company council present for those interviews. So we can help out in those situations For non-supervisory, non-management employees council is not present and those employees, actually everybody who participates in any kind of inspection like this or interviews is protected from retaliation. So you don't wanna make threats against somebody who was interviewed by an inspector because that is a whole other problem that you don't wanna have to deal with.

J. Larry Stine (43:09):
Yeah. And while it's not on the list and, but I will say this, don't threaten the inspector <laugh>

Kathleen J. Jennings (43:17):
<Laugh>. Yeah, that seems obvious, but we probably do need to put that on the list. You're right.

J. Larry Stine (43:22):
Yeah. I had a compliance officer one time tell me that he went to a construction site and the supervisor at the time told him that the split toilet seat was there so that it wouldn't hit him in the head when he was drinking from the toilet. And he came back the next day and his, that supervisor's boss heard about it and they came back the next day. The supervisor was sitting in the corner wearing a dance hat and a dress. That was the way,

Kathleen J. Jennings (43:51):
No, that, that's the best way to deal with that either, but that's probably a topic for a a different webinar <laugh>. We've talked about allowing access beyond where the inspectors authorized and also allowing the inspector to just walk through your facility unaccompanied, don't do those things. As Larry pointed out, they're just there to find issues that they can use to issue a citation. And so don't let them just go anywhere without anybody following them and seeing what they're doing. That's just gonna lead to trouble.

J. Larry Stine (44:30):
Right. And keep 'em where they're authorized because yes, if I, if I've got it in one area and I don't let, I don't have to let them go in the other nine tenths of the plant, then I, I keep any of the violations on the nine 10th of plants from his vision. And it's very helpful that way to do that.

Kathleen J. Jennings (44:48):
And even sometimes you may even wanna plan a path of ingress and egress to the particular area that they do need to inspect to minimize the number of areas that they can see in plain sight because anything that they see in plain sight is also fair game for a citation.

J. Larry Stine (45:10):
It's a, that's a very good point, Kathleen, is plan, plan the route to the area you're going to do. I have literally taken umbrellas and walked outside in the pouring rain to walk around the outside the plant and have somebody open a back door to go into the area instead of walking them through the plant. We have done that before and you need to think about it if you've got a accent or event in an area in the back of the plant, is there a different way to get the compliance officers there without having to walk through the whole plant? So it's another thing you need to, to, to plan and, and take care of.

Kathleen J. Jennings (45:55):
Well, we've covered a lot of information and we are at the point of asking if anybody has any questions. I don't see any in the chat. So either Larry and I have done an incredibly good job in presenting this material or y'all are just afraid to type a question in the chat.

J. Larry Stine (46:21):
<Laugh>,

Kathleen J. Jennings (46:22):
I guess we've done an incredibly good job, right Larry

J. Larry Stine (46:25):
As always, Gavin <laugh> we're glad you came and really when you think about it, if you haven't made your plan on how you're gonna handle those inspections,

J. Larry Stine (46:40):
If the you leave here with nothing else, go back, sit down, write out a plan of what you are going to do before the inspector shows up at your doorstep because that's going to give you a lot more confidence in what you're doing, who's going to be there. And if you've got somebody who's going to be the designated person, give them an opportunity to get some training. So spend some time reading, figuring out how they're going to handle it and know their rights. Cuz that's the critical thing in handling these inspections is some compliance officers are very pushing and some are not.

Kathleen J. Jennings (47:21):
Is I I P P still the most popular violation,

J. Larry Stine (47:27):
The most pop, the most popular frankly, is the HazCom violations violations of 19 10, 1200. We get more HazCom violations than anything else. The other one we get a lot of now is lockout tagout. And then nineteen ten two twelve a one, which is the machine guard standard, still is in the top 10 of the of the of the violations. The other thing we see a lot now is personal protective equipment. Not doing the hazard. Oh, like Hasco, okay, thanks. Yeah. Employee training. Yeah. yeah, we get employed a lot of times now with the citations. You'll see almost two of 'em. Hey, you, you didn't do the lockout tagout and therefore ifso facto, you didn't do the train. Not necessarily true, but a lot of compliance officers kind of have this ipso facto rationale that if I have a violation, you didn't properly train them, therefore you didn't train them and it doesn't work. But we do get that citation all the time. And I'm lockout tagout seems to be the one we're dealing with the most lately. 

Kathleen J. Jennings (48:44):
Well that's, you know, if you don't do it, that's when you're likely to get hurt. So those tend to be injuries, I think when people aren't using those procedures. I think I also wanna point out that even though we've spent most of the time discussing OSHA inspections these points also apply to dealing with other government inspectors insofar as you still have your constitutional rights, your fourth amendment right, against an unlawful search and seizure, your fifth Amendment right against self-incrimination or incrimination of the company. So those rights exist whenever the government is, is coming after you and you need to be aware of them and be prepared for any kind of government agent. Really depends on the type of business that you're in. That will determine the type of government agents that will come into your facility. In addition to OSHA's Larry pointed out, wage and hour inspectors can be likely to show up and at least we'll give you a little bit of notice so you can have everything in order and, and have the proper person who is the face of the company dealing with them. But it's, it's important to have those ducks in a row, have that face of the company determined, have someone who is knowledgeable, who is calm, who is mature, and is not likely to threaten whichever inspector shows up. Because that is the face of the company. And that will go a long way toward the inspector's attitude, toward the inspection and towards your company.

J. Larry Stine (50:30):
Right? The the other thing in wage hour inspections, it's going back to know your rights, the wage hour, their rights, and the way they handle it depends on the type of inspection. For example, if you're just getting a general wage hour investigator, you're a private employer. If you tell 'em though, they can't come on the premises, they will not come on your premises. They will do a sidewalk inspection. If you're a farmer and they're coming in to do an investigation on H two A, you've consented by applying for the H two A to allow them on your property and you don't let them on your property, you just don't get employees anymore. So one's a very simple remedy. Not much mu much risk for a farmer throwing 'em off the site as tremendous risk. And that's where you need to know your rights times gets a little at that times gets a little complex and a little difficult for a lay layperson to understand the complexities of what they're looking at and what you're doing. And it can differ even inside the same agency.

Kathleen J. Jennings (51:35):
Don't we. Thank everybody for joining us for this webinar today. Like I said, please give us feedback if you have any, any suggestions as to future webinars. We would love to hear from you what kinds of topics you wanna hear about. So Larry Stine, thank you very much for being here and my name is Kathleen Jennings and if any of you want to follow up with us after the webinar, you can go to our firm's website, which is www.whimlaw.com. You can reach out to Larry by email, which is jls whim law.com, or myself, I am at kj j whim law.com. Or if you're feeling like actually talking to us, the main firm number is 4 0 4 3 6 5 0 9 0 0. Thank you.

Kathleen J. Jennings (00:00):
Everyone. Welcome to our August webinar presented by Wimberley Lawson. Today we are going to be talking about what to do when a government inspector shows up at your facility. And my name is Kathleen Jennings. I'm one of the attorneys here at Wimberley Lawson. Larry Stine is the other esteemed presenter in this webinar. And he is also someone who has had a vast amount of experience with these government inspectors, including one of, he is one of the few attorneys to successfully kick out OSHA inspectors who decided to overstay their welcome. So we can talk about that in a little bit. If you have any questions, please put them in the chat and we will try to answer them as best we can. And we h would love to get some feedback from all of you about how you enjoyed this webinar or didn't enjoy this webinar, or any suggestions as to how we could conduct it, or even more important suggestions for fu future topics that are important to you and your business. So, again, welcome and Larry and I hope to give you some useful information as to what you should do when a government inspector shows up.

J. Larry Stine (01:26):
As you can imagine, it's not a pleasant day when the government official pulls up into your parking lot and walks into the door and having surprise inspections is not that unusual. OSHA has a provision, the act that prohibits them from telling you to start with. You can tell from some inspections are gonna happen. You report a fatality you can almost count the next day or even later that day. OSHA will will show up. So we wanna talk a little bit about what you can do and what you can't do. So we're going to talk about the topics, but we'll mention the news the day and then answer your questions if you need to, to do that. So, but we'll, we'll go ahead and get started with the discussion. And the first part, so OSHA does not have to give advanced notice of an inspection. True or false?

Kathleen J. Jennings (02:37):
True or false? Everybody think about that. Do they have to give advanced notice of an inspection?

J. Larry Stine (02:45):
I am. They do not have to give advance on those inspection. Let me take this a little bit better. OSHA is peculiar. When Congress wrote the act, they made it a crime for OSHA to give advanced notice. That's the reason you don't get appointment letters. Other federal agencies don't have that. So a lot of times, for example, in a wage hour investigation, your first inkling that you're going to have a wage hour investigation is you receive a letter saying, Hey, we're coming out on such and such a day, and here's the documents we want you to have. But with osha, they're, you're gonna look out in your parking lot and you're gonna see a bland little GSA car drive up. And that's gonna be OSHA coming to see you. Like I said, sometimes you know they're coming cause you've got a fatality, you can count on it, you have a big accident, you know they're coming. Other than that, you don't know whether they're coming or not. Okay? Once, once inside your facility, an ocean inspector can go wherever he or she wants, true or false.

Kathleen J. Jennings (03:54):
And this is where talking about the actual law, not what the ocean inspector really thinks he or she can do, right. Larry

J. Larry Stine (04:02):
<Laugh>. That's right. They'll tell you it's false. They can't just go wherever they want with some small I'll talk about the exceptions for that rule. The way they do it. Now, typically, OSHA's coming in either on a complaint, a report of an amputation, or report of the hospitalization for a report of a fatality. They didn't used to do that, but when they changed the law about reporting and lowered the hospitalizations from three to one, and then added the amputations the entire way that OSHA conducted inspections changed up until that time, they had regularly scheduled selected inspections with wall to walls. They, but when the thing changed, they started being much more reactive, reacting to these points. The problem for Ocean doing that though, is when they come in with a administratively neutral plan, as the Supreme Court said in Barlow, they can do a wall to wall, but when they come in on a complaint, an amputation, a hospitalization, our fatality, their authority is to inspect for what happened for the fatality or for the hospitalization, the amputation.

J. Larry Stine (05:16):
And so they're not able to go everywhere. Now, some inspectors will push back on that really hard and some will not. When you have your opening conference and what happens in an inspection, investigators almost from every agency will sit down and have an opening conference and they're going to tell you what they're going to do. This is when you need to be able to find out what they're doing and how they're going to handle it. So if you have an ocean spectrum, they come in and they said, I got a complaint. And he said, okay, we'll go to the complaint area. And they says, that's grand. I'm leading my inspection to a complaint. And you can rest a little easy. But sometimes you say that and the inspector goes, no, no. I plan to do more than that. And then you need to know what your rights are and how to push back.

J. Larry Stine (06:03):
I will say that a lot of employers really don't like to push back on investigators. That's one reason. Sometimes we go there cuz it's our job to push back on 'em very politely, very respectfully. We don't disrespect them. We don't give 'em a hard time. But very politely and respectfully, we'll go, no, you're not, you're limited to the complaint and we're not letting you go anywhere. But the complaint area, and we've, we've made that stick a couple of times. As Kathleen says, on at least two occasions, they tried to expand it far beyond what they're, what they came in for. And one they came in where a guy actually stuck a screwdriver into electrical panel and had an arc flash in one area. Well, they came in, we let them do that, but the compliance officer wanted to do a wall to wall and we would not let her do it.

J. Larry Stine (07:03):
They came in with a warrant, we quashed the warrant and got OSHAs thrown out successfully. And because the litigation lasted two years, they never did come back and finish up what little bit they did win. They just gave up on it. So the other thing though, when you're pushing back, one of my favorite stories is I got hired by an employee I who had a fatality. And he and I had just met, I have driven down south of Georgia to go into his plant and he had some things in his plant I didn't want the compliance officers to see. And so the compliance officers came and they said, where this fatality, we're gonna do a wall to wall. And I said, no, you're not, you're limiting it to the fatality. And they said, well, it's our policy on to do a wall to wall.

J. Larry Stine (07:49):
And I said, well, why don't you call your office? Cause it was the Savannah OSHA office, which is the one I had just thrown 'em out a few months before and said, tell 'em I'm the lawyer to do crier. And so they went outside, they came back and they went, yeah, we'll do it. My client didn't know me for like three hours afterwards, came to me, he says, you no, when you told them no, I about had a heart attack, he says, and then you made 'em do it. So it was really strange. But you need to know your rights. You can do it, but it's uncomfortable for the employer to do it. That's one reason we can be in big help. But you can do it all right? Yes,

Kathleen J. Jennings (08:29):
Yes, yes. I, I've had, I've had ocean inspectors who've come in on a injury investigation. I can think of at least one who at some point just said, you know what? I'd like to expand the inspection. And I just politely said, no, we're not gonna consent to that. And so he calls his office this and that and ultimately he did not expand it. But yeah, the client gets a little nervous cuz a lot of companies feel like if, if we don't cooperate fully with osha, they're gonna do something really bad. Well the reality is you have constitutional rights when you deal with OSHA or any other governmental agency

J. Larry Stine (09:12):
Right? Now, the other thing that Kathleen, that you've raised is fully cooperate. And that's a real problem sometimes in the mindset. So I have a, as you recall, our name of our inspection is what to do and what not to do. So I'm, before we start on what to do, I want to tell the story about my client who will forever remain unnamed. Gave a prime example. And this story is true. It's so bad I didn't have to exaggerate anything. So I had a client that came in on the phone and said, oh, she was in the door to do a wall to wall back when they did wall to walls and could do it properly. And I said, okay, here's the things I want you to do. I said, I, wherever they, I said, you want me to come? And he goes, no, you're too expensive.

J. Larry Stine (10:02):
And I said, I understand. And you know that do not every time somebody wants an attorney there. So I said, what I want you to do is have two people go out with them, one to be a spokesperson, one to be a note taker. Every time they take a picture. I want you to take a picture from the east to west to south from the north. So I get 4:00 AM I said, and whatever it is. Cause I was talking to the president, I said, you don't talk to them because if you say something, it's really hard if you make a mistake for me to disavow. But the president says, you know, if an HR manager or a maintenance man says something, the president come in and said, no, that's not right. I'm not gonna undo it. And so go ahead and do that. I'm fine.

J. Larry Stine (10:46):
About six months later, which for OSHA's a very bad sign is the statute limitation for OSHAs six months. When they take six months, close to six months issue with citations typically going be big. And so the president calls and says he's gotten a citation from OSHA for a quarter of a million dollars. And this would be early nineties, so that'd probably be the equivalent. About three quarters of a million now. And I, my first question is, I said, okay, great. Can you send me the pictures you took? Cause it'd be very helpful for me to see the pictures. And he goes, well, we didn't take any pictures. I go, okay, so why don't you send me the notes? Then he goes, well we didn't take any notes either. I said, okay, didn't give a little worried. I said, let me talk to the guys that walked around with the compliance officer who went through your plant when he went, well, we decided not to have anybody walk through because we wanted to be fully cooperative.

J. Larry Stine (11:53):
We wanted to show that, that we were fully cooperating. And I said, any other thing you want to tell 'em? He said, well, yeah, I did talk to them a couple of times and you told me not to. I said, okay, so what happened after you got the $250,000? He says, well, when I got it, I sent a letter to the two senators and all the congressmen in the state and I called the area director of senate. And so I said, okay, good. And I picked up the phone to talk to the area director and I told him who represented, and I've known this area director for 20 years at the time. He said, Larry, I don't have anything to talk to. And he hung up on me. So being fully cooperative like that didn't really work. He ended up with a quarter of a million. We managed to knock it down to 75,000 at the time. But those are the things that you don't do. You don't truly, truly be fully cooperative in every way and just let them walk through your plan. You're just asking for disasters. So when, what happens when an ocean inspector or any federal inspector comes up have 'em show you their credentials? They certainly are there. They happen occasions when we've had sales people come in and pretend to be OSHA compliance officers to sell things. Believe it or not,

Kathleen J. Jennings (13:18):
That's, that's troubling

J. Larry Stine (13:20):
Actually. It is troubling, but it actually has, yeah, it actually has happened that a couple of salespeople and we would, we've we've had them investigated afterwards and they're, they don't do it again. No, your rights this is important because it, it is, they do have limits to what they can do. They don't have part blanche for anything and everything and every piece of record and every injure your plant, they just don't have it. They have to limit their inspections to the areas they're in for one thing. They can only inspect places that the courts have allowed under the fourth amendment. They, depending on what they're doing, like if they come in with a scheduled inspection for wall to wall, well then you're going to do it. It's, if it's a complaint, you're gonna limit it to a complaint. But you need to know your rights and you don't have to talk to them. You really don't have to say anything at all. And if you talk to them, one thing you have to do is you have to tell them the truth. You don't have to talk to 'em. And if you got something you don't want to tell 'em, don't tell 'em. But don't lie. This is not, it's not a crime. I'm not saying anything. It is a crime to say something wrong under what is it? 18 USC 1001. Did I get that right Kathleen?

Kathleen J. Jennings (14:53):
I think so. And also, you know, you have, in addition to the fourth Amendment, right, to you know, the government has to have some kind of probable cause in order to come onto and inspect your premises. And in the case of a complaint or an injury or something, that's their probable cause to get them on there. You also have a Fifth Amendment right, which is the right to remain silent. A lot of people don't always avail themselves of that right when they need to. And you have a right to have your company's attorney there. I know in the past we've had some ocean inspectors who've given some pushback on that because they don't, you know, they don't wanna have the attorneys there because we know what we're doing and we know what the limitations are on their authority. And you know, we've heard stories just as the one Larry told, where ocean inspectors show up and basically do what they want because the company doesn't know otherwise.

Kathleen J. Jennings (15:55):
And as a result, you end up with a citation that could have been avoided. So if you say you wanna have your attorney there and they say, well, why, you know, it's, and, and you see this sometimes law enforcement, why do you need an attorney? Have you done something wrong? No, I just, you know, feel more comfortable having my council here. And you know, then there's nothing wrong with that. So don't, don't give into the pushback. If you really wanna have your council there. And I know we have a number of OSHA area offices who when they're told that, you know, one of us is gonna show up, they understand that, you know, we're gonna show up and, and they can't do anything about it.

J. Larry Stine (16:37):
Right? Typically what happens is we tell the client, if they called us, and we do have some clients who have policies that we show up for every ocean inspection regardless, you can put 'em in a nice conference room. They would like to look at your OSHA 300 s and because there's a, a regulation that says you have to produce your OS 300 s within four hours and you can get a penalty. And we can't do anything with OSHA 300 s. They, they are what they are. We'll tell 'em, give 'em the 300 s, let them go in, look at them and we'll be on our way. One other thing I will say, when you put 'em in a conference room and we're on our way, this is a wonderful time for you to send your people back in the plant and look for the low hanging, what I call the low hanging fruit, which just means the obvious things like you go through and you got an extension cord where you shouldn't have an extension cord. You can unplug it in, remove it, or where you've got a, you go in and you've got a drain uncovered. Somebody's set aside the drain cover, you can put the drain cover back cause you can go through and find some of those low hanging fruits so that OSHA doesn't come in and, you know, hit you with a serious citation for not having a drain cover. The fines are now up for serious into the $14,000 range. So, wow.

Kathleen J. Jennings (18:01):
Yeah, yeah. Check your exit doors, make sure that they're not locked. Make sure your exit signs light up. Simple stuff like that. Do your, if you have eye wash areas, make sure the water comes out. You know, just, just simple stuff like that. Yeah, that's the low

J. Larry Stine (18:19):
You can and walk. Do it while you're waiting for us to get there. You'll get an hour or two while we, we get on, get on the way or whoever it is, whether it's us or the corporate safety director. If you use them as a person, you need to sign responsibility. So there's a couple of things that you need to think about. Okay, who's gonna be in charge of handling the ocean investigation? Who's gonna be person in charge? It can be an attorney, it can be your safety director, it can be the corporate safety director. I would not recommend your engineers. Engineers have this bad habit of wanting to explain everything and I just don't recommend them to be the talk the talker. So you got to have somebody in control. Have somebody that can do, be the talker with attorney, corporate safety director, hr, who's good at it.

J. Larry Stine (19:15):
You can have a maintenance guy or a engineer come, but their job is to observe, take pictures, take take notes. And the other thing is, if you have not been able to get all the low hanging fruit and the compliance officers mentioned that if you've got the maintenance guy or the engineer, you can have people nearby and get it fixed immediately. You will get brownie points. You may not even, sometimes they won't even cite you, but you will get brownie points for fixing the things so quickly cuz it, it gives a good first impression. So you need to have those people assigned and understand what's going on. So beforehand, before they show in, decide who's going to handle the overall, who's gonna be the person doing the talking and who's gonna go through the walkthrough. So you need to have those things in your mind.

J. Larry Stine (20:07):
The way I like to say it is you're going to have a written policy as to how to handle an inspection. The question is, do you write it with a little time and think it through? Are you busy writing it as the OSHA compliance software is sitting in your waiting because you will be doing these things. If you don't do it ahead of time, you'll be doing it right then and there on the spot. And the chances of you're not doing it as well is also very careful. Also, the HR person can help you. When, when compliance officers want to talk to employees, oftentimes they'll give you a list of people that they have selected that they want to talk to. Very seldom they give you the opportunity to select them, which is a wonderful opportunity. If you got it, take it. But one of the things I want to tell you, when you have an ocean inspection and they give you a list of people, sit down with the people who know those people and put them in order.

J. Larry Stine (21:12):
Put, put the happiest person who loves to work with you at the, at the top and put that grumbling guy who can never, ever say anything nice. And the world's a horrible, terrible place at the very end. It actually makes a difference with who gets to talk to the compliance officers first. Because if you get two or three people who are happy with you and are saying all the good things, when the grumbler comes in, it's now him gets three other people that the person has already heard you put the grumbler at start, then that's the, that's the impression you're gonna get that you got a problem and then the happy people won't have as much impact. You really need to think about the order you bring the people into for the interviews. You got anything else on the responsibilities, Catherine?

Kathleen J. Jennings (22:03):
Well, we, we have a, a sample written policy that I'll show you in a different slide after this one. And if anybody would like to get a copy of it or talk to us about getting a copy of it, you can reach out to us after the webinar. So we will have a sample policy that you can take a look at,

J. Larry Stine (22:23):
Right? And we also have an article that we can send you if you'll just send us a a link. I will say I haven't updated it since 2017 cause the penalties are 2017, but other than that, it's the same exact text.

Kathleen J. Jennings (22:36):
Nothing is really, but it's be prepared is really the most important point that we wanna make here so that you're not scrambling when they show up. And, and that segues into the next topic or next point, which is do your hazard assessments and safety trainings so that you have and, and document those. If you do them, you don't document them. It's like you haven't done them at all. So perform those hazard assessments and safety trainings. Document them, have that documentation available if you need it.

J. Larry Stine (23:14):
Right? And, and, and the other thing is, a lot of times when you have done a good job with your hazard assessments and your safety training and your programs and you give them to the investigator, whether it's Wage hour or OSHA or whoever, it, it really makes, gives them a comfortable feeling. They feel like they're in a place where you know what you are doing and you want to set that good impression. We know what we're doing, we know how we're doing it. And believe me, it has an impact at times I get, I get pushback from employers who really push back on the records, the hazard assessment and safety training records. Not that they don't do it, but they kind of grumble about the record part of it. Because, well, you know, really the important part of doing the safety and doing the hazard assessment as to the employees, and I don't know if I disagree with that aspect.

J. Larry Stine (24:13):
I think the, the actual training, the actual hazard assessment for the employees as the critical thing. But we're not talking about the employees, we're talking about the investigators. And these records are your defense against employees saying something that's not true. For example, we had a case once in which our client got cited for willful failure to perform training. And the client had done a video of the training, but the, and they had a roster. The employee swore up and down, he was never in that training. And so OSHA went ahead and cited them willful. And I had the safety director come in and said, let me see the safety. And when we were doing the review of the training that we got cited willful, all of a sudden the safety director was sitting there, started letting loose with a string of profanities that I won't put on recording.

J. Larry Stine (25:24):
I'm going, what's wrong? What's wrong? He says, you know that employee, that's not we, that's not the words he used. He says, that's him right there in the training in the video. So I was able to take the video, I took it down to the attorney for the solicitor's office and put it in there and we started showing it and I froze it and I said, there's your employee who's swearing up and down. He didn't get training and the attorney for the other side gave a string of profanities again and, you know, for a very different reason because his whole case went bye-bye. And they dropped the case. Records can win your case in keeping good records give you have good first impression. The records aren't for the employees. The records are for you, for your protection from the employee saying things that aren't true and the compliance officers taking what those employees said, these records can offset bad things that employees said.

J. Larry Stine (26:21):
And sometimes remember, even even guys who are your friend and compliance officer, ask them, have they had, has time training? Well since HazCom training is not exactly high on their list of things in their memory, a lot of 'em will tell them, no, I haven't done any of HazCom training. And then you'll pull the records and show the guys signed it and there it is and he'll look at it and go, yeah, I guess I was there. I don't remember it. But a lot of people were plain, they don't have training for simply because they either think training means a classroom or they just don't remember. And these records are there to protect a you from their lap and memory. Okay, copy the inspector. All right. Okay Kathleen, you put it up so

Kathleen J. Jennings (27:16):
Well copy the inspector. And that's, you know, that's the advice that Larry gave to the client that ignored him, which is when the inspector takes photos, you take photos, somebody follows him and whatever he looks at, make a note, whatever he says, make a note those kinds of things so that way you have a record of exactly what the inspector took photos of and exactly what he looked at or she looked at or commented on so that you have that information that you can, if you have to fight a citation, you can provide that to your attorney,

J. Larry Stine (27:57):
Right? And, and it's if, if we're not there, frankly we are there. Having those pictures and having those notes are critical for putting up the defense. Cause a lot of times what you can be, you can either be able to do is take your own photographs and later show. Most inspectors are really are trying to do their job. They're, they're, you know, they can be issues with inspectors. Some inspectors are frankly lazy and if you find out they're lazy, then we know how to take advantage of them being lazy. Some of 'em don't know what the heck they're looking at. We can do that every once in a while. You'll get somebody that's got a motive and we've had that happen before. Those records can help us communicate with the attorney above the, so that they can see what's actually going on. When the inspectors aren't forthcoming or think about this, inspectors will do multiple inspections and by the time you get to question them, they'll have done 20, 30, 40, 50 inspections and guess what?

J. Larry Stine (29:04):
They don't remember it that well. And so you get your own pictures so that you can bring their memory back even if they're just because they have a pal poor memory. There's a lot of reasons to copy the inspectors and keep your pictures, keep your notes. And particularly if the inspector says something is really favorable, we can do that. That statement is a statement of a party opponent and is admissible in review commission. So when the inspectors tell you, and we've had this happen before, I don't see anything to cite here. And then you get a citation. We had one this month, didn't we Kathleen?

Kathleen J. Jennings (29:48):
We did.

J. Larry Stine (29:49):
We did. And when we went to the informal settlement conference, they withdrew the citations because we had put down the statements, we knew what he was saying and they were in our notes and we couldn't good procures perform periodic internal audits. Honestly, probably the very best thing to protect yourself is to check yourself and have your audits because it keeps them from finding the problems. The other thing about periodic internal audits is it actually helps you from a legal side on the knowledge. I've had cases in where we're doing periodic internal audits and we've gone by a machine and checked off that the machine guard was good and the compliance officer comes in, the next guy during day, I've literally had this happen and somebody in sanitation and a plant forgot to put the guard back on about an hour before they showed up.

J. Larry Stine (30:51):
We were able to beat it because we could show we had an audit, it checked it the day before and it was on and we didn't have any knowledge. So it can help you establish that you're doing audits. The other thing the will help you do is an awful lot of the OSHA cases are based upon constructive knowledge. Not that you actually never saw it, but that you should have seen it. Well, if you're performing your periodic internal audits and you're documenting them, then I've got proofs that I am checking the area. I am looking for those things. I don't have constructive knowledge cuz I did look before. So performing these periodic internal audits help you in two ways. The first thing they do is, and probably the most important is you're able to find things that need to be fixed and fix them there before things happen. The secondary value is what I say. I can use them if something happens and they come in and the machine guard's been taken off and put back on the day of the inspection.

Kathleen J. Jennings (31:54):
But keep in mind, you know, if you do these periodic internal audits and you find potential hazards, then you also need to be committed to fixing those hazards. Because if you do the audit, become aware of a hazard and don't do anything about it. That sounds an awful lot like willful, doesn't it, Larry?

J. Larry Stine (32:16):
It does. And that is an important point to make is it's not enough just to do the audits. You've got to, you've gotta follow up on it. The, the thing I like to see the best is when I see these audits, a lot of times they'll do audits. They'll take a picture. Well, if you fix it herpes sake, take another picture. Sometimes you end up with an audits but nothing but violations of them and nothing other than a little note fixed. You don't have to take pictures. If you do take pictures, take a picture when you fix it so that they believe me. It is very impressive if you're having an audit and the compliance officer looks at the audit and sees the machine guards off and the next picture shows the machines guards back on or they see something is broken and the next picture shows it's fixed or they got a busted electrical panel and the next picture is they fix you.

J. Larry Stine (33:12):
But you do wanna make certain that you document the corrective actions. I will tell you I had a case with one with a very large company where I ended up with 4,800 items and they were really good about documenting them and they did not document the fixing at all. And they, the safety people didn't inspection the operation people were supposed to be to doing the fixing and they did. So, alright, so we have a sample policy here that we've, we've pulled from somebody that has used us and we, we think this is really important to be prepared. This is think about what's going to happen before they show up so that when you have this, when they walk up to the door, you can whip this thing out and you've got it on there. You know what the policy is. Now we've written this one as the attorney, but as I said, you can use the lead person as your vice president for safety or corporate safety director.

J. Larry Stine (34:26):
Somebody who's got some knowledge, understands your rights cuz they really need to understand when they can push back and when they shouldn't and how to handle 'em. And then put their numbers there and tell them what's going on. Now if you got an act, if you got a a death and we handle way too many of them, but we do handle them, that's the time. A lot of times we're going to try to get ourselves there as quickly as possible cuz you're gonna report it within eight hours and OSHA will have somebody there. And I will tell you, I have gone to plants at two in the morning. I've gotten calls that, you know, hey, we got a fatality. I've gotten in my car, driven to the plant, conducted the investigation, figured out what's wrong and by the time the compliance officer shows up, we're ready to figure out and explain what happened and why it happened and come up with the best ways to present it.

J. Larry Stine (35:28):
Sometimes we can present it cuz we didn't do anything wrong and we can do that or we can present it in such a way to, to make it look as good as possible and have things already fixed quickly. But you need to do that. You need to have somebody ready to come and go. This plan, you put your name, put your telephone numbers down so you can call them. And whoever's on there needs to understand that they may, they need to leave their phone on cuz you may need to be able to call them at three o'clock in the morning. By the way, at four o'clock in the morning, all the lights are lined up. You're gonna really make traffic in Atlanta. Really great, Kathleen.

Kathleen J. Jennings (36:06):
Yeah, there's probably a lot less traffic at that point. So, oh,

J. Larry Stine (36:10):
I, I went someplace not too long ago at four o'clock in the morning and the thing I found out I didn't know at the time we're heading through Tucker, was they synced up all the lights. I made it all, I made like eight miles to the expressway without hitting a red light. I've never done that in my life, but

Kathleen J. Jennings (36:24):
Anyway, but we're not encouraging you to call Larry at four o'clock in the morning just so he can see the lights. But if you need to, you know that one of us can be available, right? This moves on. Larry had mentioned a bunch of don'ts in his story of the client who didn't listen to his legal advice. And so these are some of the don'ts that you need to make sure that you don't do in regard to dealing with any government inspector. Understand that managers and supervisors are basically agents of your company. So whatever they say is binding against the company. So you wanna make sure they don't say anything that could be used as an admission against the company, such as if the, if the manager or supervisors, you know, the ocean inspector or any kind of government agent says, well, you know, it looks like this has been a problem for a long time. And the manager says, yeah, it really has. You know, we keep meaning to fix it but we just haven't gotten around to it. That's an admission that can be used against the company later. So don't let anybody say that. It's, it's like any kind of proceeding like a court proceeding criminal proceeding. The less you say the less that can be used against you.

J. Larry Stine (37:49):
Right? Anything you say can be used against you in a court of law

Kathleen J. Jennings (37:53):
Absolutely. Or in any administrative proceeding. So less the better,

J. Larry Stine (38:00):
Right? I'm not gonna give you a Miranda warning, we're gonna give you a Miranda warning. We're telling you don't, don't make admissions against them. That's one reason I don't allow engineers. I still remember I was in a plant one time and the ocean compliance officer looked at a problem and the engineer proceeded to tell them how in the last two years they had been working trying to fix this problem. We got a willful out of the engineer. I mean he was very detailed. All the things they had tried, it's for two years they left the thing wrong. The other thing, the volunteer information it's very hard not to volunteer information. And a lot of people want to cooperate the way I tell clients to do it, and there's a reason I do it. I said, I want you to give the appearance of cooperation.

J. Larry Stine (38:53):
And the reason I keep, I finally, I finally landed on that because if you use the word cooperate with the government, oh my gosh, some of the employees will just go outta the way to pull documents to want to talk to them, explain things. And that's not the way you need to handle it. They are not there to help you. They are there to see if they can find violations and issue citations. They are not judged by on their job performance standards, by how many compliance inspections they found. They're judged on their performance evaluations by how successful they are in finding violations. They won't tell you that. And it's written in ways that's not a direct quota, but believe me, their managers are expecting them to find things and that is their job. And you may not forget it. That's just what they're there to do.

J. Larry Stine (39:48):
And they're not there to help you. They're there to find violations and issue citations and to penalize you. So when the voluntary information just don't do it, what we'll do is we respond to what the compliance officer, the government inspector asks for any nothing else. And if I don't like what he is asked for, sometimes I will not respond the first time. I will make the investigator ask me a second time because sometimes I have found that inspectors forgot what they asked me the first time and then forget it the second time and therefore I don't have to give it to them. They ask for it the second time I give it to them and I try to put it in the light best. And one of the things that we do in the background when they're asking for things and we're in the background looking at stuff, we're trying to figure out the way to put the information in the best light possible.

J. Larry Stine (40:46):
Sometimes that's not as good as we'd like, but we always wanna do it in a way that's best light possible. And you need to do the same thing. If we're not there, how am I gonna present this evidence to them with this documents or this stuff and the best light? I can't. So think about that, but but don't volunteer information because it can be used against you. And when you think it's very helpful, don't do it. What I would recommend, if you think some information's helpful and sometimes it is before you offer it to the compliance officers, go in the back room and talk about it and think, think it, just think it through before you do it. What we don't want you to do is all we do this, we do this, we do this without thinking about it. Cuz you don't always understand all the implications of thinking through. But go in the back room, talk about it. Hey, we think that this is a really great thing and then we'll figure out whether it is or not. And then at that point, only after you've talked about it, thought about the considerations and the implications, might you wanna do that? But never any information just during the investigation, very clear thinking about.

Kathleen J. Jennings (41:54):
Yeah. And a lot of times what what I like to do is if an inspector asks me for specific information while they're walking around, I ask them to just put the complete request in an email. That way we're all on the same page. They have it in writing, I have it in writing, and it's easier to figure out what they're looking for. So I'll do that. Don't make threats against employees who are interviewed by the inspector. When an inspector wants to interview employees, keep in mind that managers and supervisors, anybody who's in a position to make admissions against the company are allowed to have company council present for those interviews. So we can help out in those situations For non-supervisory, non-management employees council is not present and those employees, actually everybody who participates in any kind of inspection like this or interviews is protected from retaliation. So you don't wanna make threats against somebody who was interviewed by an inspector because that is a whole other problem that you don't wanna have to deal with.

J. Larry Stine (43:09):
Yeah. And while it's not on the list and, but I will say this, don't threaten the inspector <laugh>

Kathleen J. Jennings (43:17):
<Laugh>. Yeah, that seems obvious, but we probably do need to put that on the list. You're right.

J. Larry Stine (43:22):
Yeah. I had a compliance officer one time tell me that he went to a construction site and the supervisor at the time told him that the split toilet seat was there so that it wouldn't hit him in the head when he was drinking from the toilet. And he came back the next day and his, that supervisor's boss heard about it and they came back the next day. The supervisor was sitting in the corner wearing a dance hat and a dress. That was the way,

Kathleen J. Jennings (43:51):
No, that, that's the best way to deal with that either, but that's probably a topic for a a different webinar <laugh>. We've talked about allowing access beyond where the inspectors authorized and also allowing the inspector to just walk through your facility unaccompanied, don't do those things. As Larry pointed out, they're just there to find issues that they can use to issue a citation. And so don't let them just go anywhere without anybody following them and seeing what they're doing. That's just gonna lead to trouble.

J. Larry Stine (44:30):
Right. And keep 'em where they're authorized because yes, if I, if I've got it in one area and I don't let, I don't have to let them go in the other nine tenths of the plant, then I, I keep any of the violations on the nine 10th of plants from his vision. And it's very helpful that way to do that.

Kathleen J. Jennings (44:48):
And even sometimes you may even wanna plan a path of ingress and egress to the particular area that they do need to inspect to minimize the number of areas that they can see in plain sight because anything that they see in plain sight is also fair game for a citation.

J. Larry Stine (45:10):
It's a, that's a very good point, Kathleen, is plan, plan the route to the area you're going to do. I have literally taken umbrellas and walked outside in the pouring rain to walk around the outside the plant and have somebody open a back door to go into the area instead of walking them through the plant. We have done that before and you need to think about it if you've got a accent or event in an area in the back of the plant, is there a different way to get the compliance officers there without having to walk through the whole plant? So it's another thing you need to, to, to plan and, and take care of.

Kathleen J. Jennings (45:55):
Well, we've covered a lot of information and we are at the point of asking if anybody has any questions. I don't see any in the chat. So either Larry and I have done an incredibly good job in presenting this material or y'all are just afraid to type a question in the chat.

J. Larry Stine (46:21):
<Laugh>,

Kathleen J. Jennings (46:22):
I guess we've done an incredibly good job, right Larry

J. Larry Stine (46:25):
As always, Gavin <laugh> we're glad you came and really when you think about it, if you haven't made your plan on how you're gonna handle those inspections,

J. Larry Stine (46:40):
If the you leave here with nothing else, go back, sit down, write out a plan of what you are going to do before the inspector shows up at your doorstep because that's going to give you a lot more confidence in what you're doing, who's going to be there. And if you've got somebody who's going to be the designated person, give them an opportunity to get some training. So spend some time reading, figuring out how they're going to handle it and know their rights. Cuz that's the critical thing in handling these inspections is some compliance officers are very pushing and some are not.

Kathleen J. Jennings (47:21):
Is I I P P still the most popular violation,

J. Larry Stine (47:27):
The most pop, the most popular frankly, is the HazCom violations violations of 19 10, 1200. We get more HazCom violations than anything else. The other one we get a lot of now is lockout tagout. And then nineteen ten two twelve a one, which is the machine guard standard, still is in the top 10 of the of the of the violations. The other thing we see a lot now is personal protective equipment. Not doing the hazard. Oh, like Hasco, okay, thanks. Yeah. Employee training. Yeah. yeah, we get employed a lot of times now with the citations. You'll see almost two of 'em. Hey, you, you didn't do the lockout tagout and therefore ifso facto, you didn't do the train. Not necessarily true, but a lot of compliance officers kind of have this ipso facto rationale that if I have a violation, you didn't properly train them, therefore you didn't train them and it doesn't work. But we do get that citation all the time. And I'm lockout tagout seems to be the one we're dealing with the most lately. 

Kathleen J. Jennings (48:44):
Well that's, you know, if you don't do it, that's when you're likely to get hurt. So those tend to be injuries, I think when people aren't using those procedures. I think I also wanna point out that even though we've spent most of the time discussing OSHA inspections these points also apply to dealing with other government inspectors insofar as you still have your constitutional rights, your fourth amendment right, against an unlawful search and seizure, your fifth Amendment right against self-incrimination or incrimination of the company. So those rights exist whenever the government is, is coming after you and you need to be aware of them and be prepared for any kind of government agent. Really depends on the type of business that you're in. That will determine the type of government agents that will come into your facility. In addition to OSHA's Larry pointed out, wage and hour inspectors can be likely to show up and at least we'll give you a little bit of notice so you can have everything in order and, and have the proper person who is the face of the company dealing with them. But it's, it's important to have those ducks in a row, have that face of the company determined, have someone who is knowledgeable, who is calm, who is mature, and is not likely to threaten whichever inspector shows up. Because that is the face of the company. And that will go a long way toward the inspector's attitude, toward the inspection and towards your company.

J. Larry Stine (50:30):
Right? The the other thing in wage hour inspections, it's going back to know your rights, the wage hour, their rights, and the way they handle it depends on the type of inspection. For example, if you're just getting a general wage hour investigator, you're a private employer. If you tell 'em though, they can't come on the premises, they will not come on your premises. They will do a sidewalk inspection. If you're a farmer and they're coming in to do an investigation on H two A, you've consented by applying for the H two A to allow them on your property and you don't let them on your property, you just don't get employees anymore. So one's a very simple remedy. Not much mu much risk for a farmer throwing 'em off the site as tremendous risk. And that's where you need to know your rights times gets a little at that times gets a little complex and a little difficult for a lay layperson to understand the complexities of what they're looking at and what you're doing. And it can differ even inside the same agency.

Kathleen J. Jennings (51:35):
Don't we. Thank everybody for joining us for this webinar today. Like I said, please give us feedback if you have any, any suggestions as to future webinars. We would love to hear from you what kinds of topics you wanna hear about. So Larry Stine, thank you very much for being here and my name is Kathleen Jennings and if any of you want to follow up with us after the webinar, you can go to our firm's website, which is www.whimlaw.com. You can reach out to Larry by email, which is jls whim law.com, or myself, I am at kj j whim law.com. Or if you're feeling like actually talking to us, the main firm number is 4 0 4 3 6 5 0 9 0 0. Thank you.

Kathleen J. Jennings (00:00):
Everyone. Welcome to our August webinar presented by Wimberley Lawson. Today we are going to be talking about what to do when a government inspector shows up at your facility. And my name is Kathleen Jennings. I'm one of the attorneys here at Wimberley Lawson. Larry Stine is the other esteemed presenter in this webinar. And he is also someone who has had a vast amount of experience with these government inspectors, including one of, he is one of the few attorneys to successfully kick out OSHA inspectors who decided to overstay their welcome. So we can talk about that in a little bit. If you have any questions, please put them in the chat and we will try to answer them as best we can. And we h would love to get some feedback from all of you about how you enjoyed this webinar or didn't enjoy this webinar, or any suggestions as to how we could conduct it, or even more important suggestions for fu future topics that are important to you and your business. So, again, welcome and Larry and I hope to give you some useful information as to what you should do when a government inspector shows up.

J. Larry Stine (01:26):
As you can imagine, it's not a pleasant day when the government official pulls up into your parking lot and walks into the door and having surprise inspections is not that unusual. OSHA has a provision, the act that prohibits them from telling you to start with. You can tell from some inspections are gonna happen. You report a fatality you can almost count the next day or even later that day. OSHA will will show up. So we wanna talk a little bit about what you can do and what you can't do. So we're going to talk about the topics, but we'll mention the news the day and then answer your questions if you need to, to do that. So, but we'll, we'll go ahead and get started with the discussion. And the first part, so OSHA does not have to give advanced notice of an inspection. True or false?

Kathleen J. Jennings (02:37):
True or false? Everybody think about that. Do they have to give advanced notice of an inspection?

J. Larry Stine (02:45):
I am. They do not have to give advance on those inspection. Let me take this a little bit better. OSHA is peculiar. When Congress wrote the act, they made it a crime for OSHA to give advanced notice. That's the reason you don't get appointment letters. Other federal agencies don't have that. So a lot of times, for example, in a wage hour investigation, your first inkling that you're going to have a wage hour investigation is you receive a letter saying, Hey, we're coming out on such and such a day, and here's the documents we want you to have. But with osha, they're, you're gonna look out in your parking lot and you're gonna see a bland little GSA car drive up. And that's gonna be OSHA coming to see you. Like I said, sometimes you know they're coming cause you've got a fatality, you can count on it, you have a big accident, you know they're coming. Other than that, you don't know whether they're coming or not. Okay? Once, once inside your facility, an ocean inspector can go wherever he or she wants, true or false.

Kathleen J. Jennings (03:54):
And this is where talking about the actual law, not what the ocean inspector really thinks he or she can do, right. Larry

J. Larry Stine (04:02):
<Laugh>. That's right. They'll tell you it's false. They can't just go wherever they want with some small I'll talk about the exceptions for that rule. The way they do it. Now, typically, OSHA's coming in either on a complaint, a report of an amputation, or report of the hospitalization for a report of a fatality. They didn't used to do that, but when they changed the law about reporting and lowered the hospitalizations from three to one, and then added the amputations the entire way that OSHA conducted inspections changed up until that time, they had regularly scheduled selected inspections with wall to walls. They, but when the thing changed, they started being much more reactive, reacting to these points. The problem for Ocean doing that though, is when they come in with a administratively neutral plan, as the Supreme Court said in Barlow, they can do a wall to wall, but when they come in on a complaint, an amputation, a hospitalization, our fatality, their authority is to inspect for what happened for the fatality or for the hospitalization, the amputation.

J. Larry Stine (05:16):
And so they're not able to go everywhere. Now, some inspectors will push back on that really hard and some will not. When you have your opening conference and what happens in an inspection, investigators almost from every agency will sit down and have an opening conference and they're going to tell you what they're going to do. This is when you need to be able to find out what they're doing and how they're going to handle it. So if you have an ocean spectrum, they come in and they said, I got a complaint. And he said, okay, we'll go to the complaint area. And they says, that's grand. I'm leading my inspection to a complaint. And you can rest a little easy. But sometimes you say that and the inspector goes, no, no. I plan to do more than that. And then you need to know what your rights are and how to push back.

J. Larry Stine (06:03):
I will say that a lot of employers really don't like to push back on investigators. That's one reason. Sometimes we go there cuz it's our job to push back on 'em very politely, very respectfully. We don't disrespect them. We don't give 'em a hard time. But very politely and respectfully, we'll go, no, you're not, you're limited to the complaint and we're not letting you go anywhere. But the complaint area, and we've, we've made that stick a couple of times. As Kathleen says, on at least two occasions, they tried to expand it far beyond what they're, what they came in for. And one they came in where a guy actually stuck a screwdriver into electrical panel and had an arc flash in one area. Well, they came in, we let them do that, but the compliance officer wanted to do a wall to wall and we would not let her do it.

J. Larry Stine (07:03):
They came in with a warrant, we quashed the warrant and got OSHAs thrown out successfully. And because the litigation lasted two years, they never did come back and finish up what little bit they did win. They just gave up on it. So the other thing though, when you're pushing back, one of my favorite stories is I got hired by an employee I who had a fatality. And he and I had just met, I have driven down south of Georgia to go into his plant and he had some things in his plant I didn't want the compliance officers to see. And so the compliance officers came and they said, where this fatality, we're gonna do a wall to wall. And I said, no, you're not, you're limiting it to the fatality. And they said, well, it's our policy on to do a wall to wall.

J. Larry Stine (07:49):
And I said, well, why don't you call your office? Cause it was the Savannah OSHA office, which is the one I had just thrown 'em out a few months before and said, tell 'em I'm the lawyer to do crier. And so they went outside, they came back and they went, yeah, we'll do it. My client didn't know me for like three hours afterwards, came to me, he says, you no, when you told them no, I about had a heart attack, he says, and then you made 'em do it. So it was really strange. But you need to know your rights. You can do it, but it's uncomfortable for the employer to do it. That's one reason we can be in big help. But you can do it all right? Yes,

Kathleen J. Jennings (08:29):
Yes, yes. I, I've had, I've had ocean inspectors who've come in on a injury investigation. I can think of at least one who at some point just said, you know what? I'd like to expand the inspection. And I just politely said, no, we're not gonna consent to that. And so he calls his office this and that and ultimately he did not expand it. But yeah, the client gets a little nervous cuz a lot of companies feel like if, if we don't cooperate fully with osha, they're gonna do something really bad. Well the reality is you have constitutional rights when you deal with OSHA or any other governmental agency

J. Larry Stine (09:12):
Right? Now, the other thing that Kathleen, that you've raised is fully cooperate. And that's a real problem sometimes in the mindset. So I have a, as you recall, our name of our inspection is what to do and what not to do. So I'm, before we start on what to do, I want to tell the story about my client who will forever remain unnamed. Gave a prime example. And this story is true. It's so bad I didn't have to exaggerate anything. So I had a client that came in on the phone and said, oh, she was in the door to do a wall to wall back when they did wall to walls and could do it properly. And I said, okay, here's the things I want you to do. I said, I, wherever they, I said, you want me to come? And he goes, no, you're too expensive.

J. Larry Stine (10:02):
And I said, I understand. And you know that do not every time somebody wants an attorney there. So I said, what I want you to do is have two people go out with them, one to be a spokesperson, one to be a note taker. Every time they take a picture. I want you to take a picture from the east to west to south from the north. So I get 4:00 AM I said, and whatever it is. Cause I was talking to the president, I said, you don't talk to them because if you say something, it's really hard if you make a mistake for me to disavow. But the president says, you know, if an HR manager or a maintenance man says something, the president come in and said, no, that's not right. I'm not gonna undo it. And so go ahead and do that. I'm fine.

J. Larry Stine (10:46):
About six months later, which for OSHA's a very bad sign is the statute limitation for OSHAs six months. When they take six months, close to six months issue with citations typically going be big. And so the president calls and says he's gotten a citation from OSHA for a quarter of a million dollars. And this would be early nineties, so that'd probably be the equivalent. About three quarters of a million now. And I, my first question is, I said, okay, great. Can you send me the pictures you took? Cause it'd be very helpful for me to see the pictures. And he goes, well, we didn't take any pictures. I go, okay, so why don't you send me the notes? Then he goes, well we didn't take any notes either. I said, okay, didn't give a little worried. I said, let me talk to the guys that walked around with the compliance officer who went through your plant when he went, well, we decided not to have anybody walk through because we wanted to be fully cooperative.

J. Larry Stine (11:53):
We wanted to show that, that we were fully cooperating. And I said, any other thing you want to tell 'em? He said, well, yeah, I did talk to them a couple of times and you told me not to. I said, okay, so what happened after you got the $250,000? He says, well, when I got it, I sent a letter to the two senators and all the congressmen in the state and I called the area director of senate. And so I said, okay, good. And I picked up the phone to talk to the area director and I told him who represented, and I've known this area director for 20 years at the time. He said, Larry, I don't have anything to talk to. And he hung up on me. So being fully cooperative like that didn't really work. He ended up with a quarter of a million. We managed to knock it down to 75,000 at the time. But those are the things that you don't do. You don't truly, truly be fully cooperative in every way and just let them walk through your plan. You're just asking for disasters. So when, what happens when an ocean inspector or any federal inspector comes up have 'em show you their credentials? They certainly are there. They happen occasions when we've had sales people come in and pretend to be OSHA compliance officers to sell things. Believe it or not,

Kathleen J. Jennings (13:18):
That's, that's troubling

J. Larry Stine (13:20):
Actually. It is troubling, but it actually has, yeah, it actually has happened that a couple of salespeople and we would, we've we've had them investigated afterwards and they're, they don't do it again. No, your rights this is important because it, it is, they do have limits to what they can do. They don't have part blanche for anything and everything and every piece of record and every injure your plant, they just don't have it. They have to limit their inspections to the areas they're in for one thing. They can only inspect places that the courts have allowed under the fourth amendment. They, depending on what they're doing, like if they come in with a scheduled inspection for wall to wall, well then you're going to do it. It's, if it's a complaint, you're gonna limit it to a complaint. But you need to know your rights and you don't have to talk to them. You really don't have to say anything at all. And if you talk to them, one thing you have to do is you have to tell them the truth. You don't have to talk to 'em. And if you got something you don't want to tell 'em, don't tell 'em. But don't lie. This is not, it's not a crime. I'm not saying anything. It is a crime to say something wrong under what is it? 18 USC 1001. Did I get that right Kathleen?

Kathleen J. Jennings (14:53):
I think so. And also, you know, you have, in addition to the fourth Amendment, right, to you know, the government has to have some kind of probable cause in order to come onto and inspect your premises. And in the case of a complaint or an injury or something, that's their probable cause to get them on there. You also have a Fifth Amendment right, which is the right to remain silent. A lot of people don't always avail themselves of that right when they need to. And you have a right to have your company's attorney there. I know in the past we've had some ocean inspectors who've given some pushback on that because they don't, you know, they don't wanna have the attorneys there because we know what we're doing and we know what the limitations are on their authority. And you know, we've heard stories just as the one Larry told, where ocean inspectors show up and basically do what they want because the company doesn't know otherwise.

Kathleen J. Jennings (15:55):
And as a result, you end up with a citation that could have been avoided. So if you say you wanna have your attorney there and they say, well, why, you know, it's, and, and you see this sometimes law enforcement, why do you need an attorney? Have you done something wrong? No, I just, you know, feel more comfortable having my council here. And you know, then there's nothing wrong with that. So don't, don't give into the pushback. If you really wanna have your council there. And I know we have a number of OSHA area offices who when they're told that, you know, one of us is gonna show up, they understand that, you know, we're gonna show up and, and they can't do anything about it.

J. Larry Stine (16:37):
Right? Typically what happens is we tell the client, if they called us, and we do have some clients who have policies that we show up for every ocean inspection regardless, you can put 'em in a nice conference room. They would like to look at your OSHA 300 s and because there's a, a regulation that says you have to produce your OS 300 s within four hours and you can get a penalty. And we can't do anything with OSHA 300 s. They, they are what they are. We'll tell 'em, give 'em the 300 s, let them go in, look at them and we'll be on our way. One other thing I will say, when you put 'em in a conference room and we're on our way, this is a wonderful time for you to send your people back in the plant and look for the low hanging, what I call the low hanging fruit, which just means the obvious things like you go through and you got an extension cord where you shouldn't have an extension cord. You can unplug it in, remove it, or where you've got a, you go in and you've got a drain uncovered. Somebody's set aside the drain cover, you can put the drain cover back cause you can go through and find some of those low hanging fruits so that OSHA doesn't come in and, you know, hit you with a serious citation for not having a drain cover. The fines are now up for serious into the $14,000 range. So, wow.

Kathleen J. Jennings (18:01):
Yeah, yeah. Check your exit doors, make sure that they're not locked. Make sure your exit signs light up. Simple stuff like that. Do your, if you have eye wash areas, make sure the water comes out. You know, just, just simple stuff like that. Yeah, that's the low

J. Larry Stine (18:19):
You can and walk. Do it while you're waiting for us to get there. You'll get an hour or two while we, we get on, get on the way or whoever it is, whether it's us or the corporate safety director. If you use them as a person, you need to sign responsibility. So there's a couple of things that you need to think about. Okay, who's gonna be in charge of handling the ocean investigation? Who's gonna be person in charge? It can be an attorney, it can be your safety director, it can be the corporate safety director. I would not recommend your engineers. Engineers have this bad habit of wanting to explain everything and I just don't recommend them to be the talk the talker. So you got to have somebody in control. Have somebody that can do, be the talker with attorney, corporate safety director, hr, who's good at it.

J. Larry Stine (19:15):
You can have a maintenance guy or a engineer come, but their job is to observe, take pictures, take take notes. And the other thing is, if you have not been able to get all the low hanging fruit and the compliance officers mentioned that if you've got the maintenance guy or the engineer, you can have people nearby and get it fixed immediately. You will get brownie points. You may not even, sometimes they won't even cite you, but you will get brownie points for fixing the things so quickly cuz it, it gives a good first impression. So you need to have those people assigned and understand what's going on. So beforehand, before they show in, decide who's going to handle the overall, who's gonna be the person doing the talking and who's gonna go through the walkthrough. So you need to have those things in your mind.

J. Larry Stine (20:07):
The way I like to say it is you're going to have a written policy as to how to handle an inspection. The question is, do you write it with a little time and think it through? Are you busy writing it as the OSHA compliance software is sitting in your waiting because you will be doing these things. If you don't do it ahead of time, you'll be doing it right then and there on the spot. And the chances of you're not doing it as well is also very careful. Also, the HR person can help you. When, when compliance officers want to talk to employees, oftentimes they'll give you a list of people that they have selected that they want to talk to. Very seldom they give you the opportunity to select them, which is a wonderful opportunity. If you got it, take it. But one of the things I want to tell you, when you have an ocean inspection and they give you a list of people, sit down with the people who know those people and put them in order.

J. Larry Stine (21:12):
Put, put the happiest person who loves to work with you at the, at the top and put that grumbling guy who can never, ever say anything nice. And the world's a horrible, terrible place at the very end. It actually makes a difference with who gets to talk to the compliance officers first. Because if you get two or three people who are happy with you and are saying all the good things, when the grumbler comes in, it's now him gets three other people that the person has already heard you put the grumbler at start, then that's the, that's the impression you're gonna get that you got a problem and then the happy people won't have as much impact. You really need to think about the order you bring the people into for the interviews. You got anything else on the responsibilities, Catherine?

Kathleen J. Jennings (22:03):
Well, we, we have a, a sample written policy that I'll show you in a different slide after this one. And if anybody would like to get a copy of it or talk to us about getting a copy of it, you can reach out to us after the webinar. So we will have a sample policy that you can take a look at,

J. Larry Stine (22:23):
Right? And we also have an article that we can send you if you'll just send us a a link. I will say I haven't updated it since 2017 cause the penalties are 2017, but other than that, it's the same exact text.

Kathleen J. Jennings (22:36):
Nothing is really, but it's be prepared is really the most important point that we wanna make here so that you're not scrambling when they show up. And, and that segues into the next topic or next point, which is do your hazard assessments and safety trainings so that you have and, and document those. If you do them, you don't document them. It's like you haven't done them at all. So perform those hazard assessments and safety trainings. Document them, have that documentation available if you need it.

J. Larry Stine (23:14):
Right? And, and, and the other thing is, a lot of times when you have done a good job with your hazard assessments and your safety training and your programs and you give them to the investigator, whether it's Wage hour or OSHA or whoever, it, it really makes, gives them a comfortable feeling. They feel like they're in a place where you know what you are doing and you want to set that good impression. We know what we're doing, we know how we're doing it. And believe me, it has an impact at times I get, I get pushback from employers who really push back on the records, the hazard assessment and safety training records. Not that they don't do it, but they kind of grumble about the record part of it. Because, well, you know, really the important part of doing the safety and doing the hazard assessment as to the employees, and I don't know if I disagree with that aspect.

J. Larry Stine (24:13):
I think the, the actual training, the actual hazard assessment for the employees as the critical thing. But we're not talking about the employees, we're talking about the investigators. And these records are your defense against employees saying something that's not true. For example, we had a case once in which our client got cited for willful failure to perform training. And the client had done a video of the training, but the, and they had a roster. The employee swore up and down, he was never in that training. And so OSHA went ahead and cited them willful. And I had the safety director come in and said, let me see the safety. And when we were doing the review of the training that we got cited willful, all of a sudden the safety director was sitting there, started letting loose with a string of profanities that I won't put on recording.

J. Larry Stine (25:24):
I'm going, what's wrong? What's wrong? He says, you know that employee, that's not we, that's not the words he used. He says, that's him right there in the training in the video. So I was able to take the video, I took it down to the attorney for the solicitor's office and put it in there and we started showing it and I froze it and I said, there's your employee who's swearing up and down. He didn't get training and the attorney for the other side gave a string of profanities again and, you know, for a very different reason because his whole case went bye-bye. And they dropped the case. Records can win your case in keeping good records give you have good first impression. The records aren't for the employees. The records are for you, for your protection from the employee saying things that aren't true and the compliance officers taking what those employees said, these records can offset bad things that employees said.

J. Larry Stine (26:21):
And sometimes remember, even even guys who are your friend and compliance officer, ask them, have they had, has time training? Well since HazCom training is not exactly high on their list of things in their memory, a lot of 'em will tell them, no, I haven't done any of HazCom training. And then you'll pull the records and show the guys signed it and there it is and he'll look at it and go, yeah, I guess I was there. I don't remember it. But a lot of people were plain, they don't have training for simply because they either think training means a classroom or they just don't remember. And these records are there to protect a you from their lap and memory. Okay, copy the inspector. All right. Okay Kathleen, you put it up so

Kathleen J. Jennings (27:16):
Well copy the inspector. And that's, you know, that's the advice that Larry gave to the client that ignored him, which is when the inspector takes photos, you take photos, somebody follows him and whatever he looks at, make a note, whatever he says, make a note those kinds of things so that way you have a record of exactly what the inspector took photos of and exactly what he looked at or she looked at or commented on so that you have that information that you can, if you have to fight a citation, you can provide that to your attorney,

J. Larry Stine (27:57):
Right? And, and it's if, if we're not there, frankly we are there. Having those pictures and having those notes are critical for putting up the defense. Cause a lot of times what you can be, you can either be able to do is take your own photographs and later show. Most inspectors are really are trying to do their job. They're, they're, you know, they can be issues with inspectors. Some inspectors are frankly lazy and if you find out they're lazy, then we know how to take advantage of them being lazy. Some of 'em don't know what the heck they're looking at. We can do that every once in a while. You'll get somebody that's got a motive and we've had that happen before. Those records can help us communicate with the attorney above the, so that they can see what's actually going on. When the inspectors aren't forthcoming or think about this, inspectors will do multiple inspections and by the time you get to question them, they'll have done 20, 30, 40, 50 inspections and guess what?

J. Larry Stine (29:04):
They don't remember it that well. And so you get your own pictures so that you can bring their memory back even if they're just because they have a pal poor memory. There's a lot of reasons to copy the inspectors and keep your pictures, keep your notes. And particularly if the inspector says something is really favorable, we can do that. That statement is a statement of a party opponent and is admissible in review commission. So when the inspectors tell you, and we've had this happen before, I don't see anything to cite here. And then you get a citation. We had one this month, didn't we Kathleen?

Kathleen J. Jennings (29:48):
We did.

J. Larry Stine (29:49):
We did. And when we went to the informal settlement conference, they withdrew the citations because we had put down the statements, we knew what he was saying and they were in our notes and we couldn't good procures perform periodic internal audits. Honestly, probably the very best thing to protect yourself is to check yourself and have your audits because it keeps them from finding the problems. The other thing about periodic internal audits is it actually helps you from a legal side on the knowledge. I've had cases in where we're doing periodic internal audits and we've gone by a machine and checked off that the machine guard was good and the compliance officer comes in, the next guy during day, I've literally had this happen and somebody in sanitation and a plant forgot to put the guard back on about an hour before they showed up.

J. Larry Stine (30:51):
We were able to beat it because we could show we had an audit, it checked it the day before and it was on and we didn't have any knowledge. So it can help you establish that you're doing audits. The other thing the will help you do is an awful lot of the OSHA cases are based upon constructive knowledge. Not that you actually never saw it, but that you should have seen it. Well, if you're performing your periodic internal audits and you're documenting them, then I've got proofs that I am checking the area. I am looking for those things. I don't have constructive knowledge cuz I did look before. So performing these periodic internal audits help you in two ways. The first thing they do is, and probably the most important is you're able to find things that need to be fixed and fix them there before things happen. The secondary value is what I say. I can use them if something happens and they come in and the machine guard's been taken off and put back on the day of the inspection.

Kathleen J. Jennings (31:54):
But keep in mind, you know, if you do these periodic internal audits and you find potential hazards, then you also need to be committed to fixing those hazards. Because if you do the audit, become aware of a hazard and don't do anything about it. That sounds an awful lot like willful, doesn't it, Larry?

J. Larry Stine (32:16):
It does. And that is an important point to make is it's not enough just to do the audits. You've got to, you've gotta follow up on it. The, the thing I like to see the best is when I see these audits, a lot of times they'll do audits. They'll take a picture. Well, if you fix it herpes sake, take another picture. Sometimes you end up with an audits but nothing but violations of them and nothing other than a little note fixed. You don't have to take pictures. If you do take pictures, take a picture when you fix it so that they believe me. It is very impressive if you're having an audit and the compliance officer looks at the audit and sees the machine guards off and the next picture shows the machines guards back on or they see something is broken and the next picture shows it's fixed or they got a busted electrical panel and the next picture is they fix you.

J. Larry Stine (33:12):
But you do wanna make certain that you document the corrective actions. I will tell you I had a case with one with a very large company where I ended up with 4,800 items and they were really good about documenting them and they did not document the fixing at all. And they, the safety people didn't inspection the operation people were supposed to be to doing the fixing and they did. So, alright, so we have a sample policy here that we've, we've pulled from somebody that has used us and we, we think this is really important to be prepared. This is think about what's going to happen before they show up so that when you have this, when they walk up to the door, you can whip this thing out and you've got it on there. You know what the policy is. Now we've written this one as the attorney, but as I said, you can use the lead person as your vice president for safety or corporate safety director.

J. Larry Stine (34:26):
Somebody who's got some knowledge, understands your rights cuz they really need to understand when they can push back and when they shouldn't and how to handle 'em. And then put their numbers there and tell them what's going on. Now if you got an act, if you got a a death and we handle way too many of them, but we do handle them, that's the time. A lot of times we're going to try to get ourselves there as quickly as possible cuz you're gonna report it within eight hours and OSHA will have somebody there. And I will tell you, I have gone to plants at two in the morning. I've gotten calls that, you know, hey, we got a fatality. I've gotten in my car, driven to the plant, conducted the investigation, figured out what's wrong and by the time the compliance officer shows up, we're ready to figure out and explain what happened and why it happened and come up with the best ways to present it.

J. Larry Stine (35:28):
Sometimes we can present it cuz we didn't do anything wrong and we can do that or we can present it in such a way to, to make it look as good as possible and have things already fixed quickly. But you need to do that. You need to have somebody ready to come and go. This plan, you put your name, put your telephone numbers down so you can call them. And whoever's on there needs to understand that they may, they need to leave their phone on cuz you may need to be able to call them at three o'clock in the morning. By the way, at four o'clock in the morning, all the lights are lined up. You're gonna really make traffic in Atlanta. Really great, Kathleen.

Kathleen J. Jennings (36:06):
Yeah, there's probably a lot less traffic at that point. So, oh,

J. Larry Stine (36:10):
I, I went someplace not too long ago at four o'clock in the morning and the thing I found out I didn't know at the time we're heading through Tucker, was they synced up all the lights. I made it all, I made like eight miles to the expressway without hitting a red light. I've never done that in my life, but

Kathleen J. Jennings (36:24):
Anyway, but we're not encouraging you to call Larry at four o'clock in the morning just so he can see the lights. But if you need to, you know that one of us can be available, right? This moves on. Larry had mentioned a bunch of don'ts in his story of the client who didn't listen to his legal advice. And so these are some of the don'ts that you need to make sure that you don't do in regard to dealing with any government inspector. Understand that managers and supervisors are basically agents of your company. So whatever they say is binding against the company. So you wanna make sure they don't say anything that could be used as an admission against the company, such as if the, if the manager or supervisors, you know, the ocean inspector or any kind of government agent says, well, you know, it looks like this has been a problem for a long time. And the manager says, yeah, it really has. You know, we keep meaning to fix it but we just haven't gotten around to it. That's an admission that can be used against the company later. So don't let anybody say that. It's, it's like any kind of proceeding like a court proceeding criminal proceeding. The less you say the less that can be used against you.

J. Larry Stine (37:49):
Right? Anything you say can be used against you in a court of law

Kathleen J. Jennings (37:53):
Absolutely. Or in any administrative proceeding. So less the better,

J. Larry Stine (38:00):
Right? I'm not gonna give you a Miranda warning, we're gonna give you a Miranda warning. We're telling you don't, don't make admissions against them. That's one reason I don't allow engineers. I still remember I was in a plant one time and the ocean compliance officer looked at a problem and the engineer proceeded to tell them how in the last two years they had been working trying to fix this problem. We got a willful out of the engineer. I mean he was very detailed. All the things they had tried, it's for two years they left the thing wrong. The other thing, the volunteer information it's very hard not to volunteer information. And a lot of people want to cooperate the way I tell clients to do it, and there's a reason I do it. I said, I want you to give the appearance of cooperation.

J. Larry Stine (38:53):
And the reason I keep, I finally, I finally landed on that because if you use the word cooperate with the government, oh my gosh, some of the employees will just go outta the way to pull documents to want to talk to them, explain things. And that's not the way you need to handle it. They are not there to help you. They are there to see if they can find violations and issue citations. They are not judged by on their job performance standards, by how many compliance inspections they found. They're judged on their performance evaluations by how successful they are in finding violations. They won't tell you that. And it's written in ways that's not a direct quota, but believe me, their managers are expecting them to find things and that is their job. And you may not forget it. That's just what they're there to do.

J. Larry Stine (39:48):
And they're not there to help you. They're there to find violations and issue citations and to penalize you. So when the voluntary information just don't do it, what we'll do is we respond to what the compliance officer, the government inspector asks for any nothing else. And if I don't like what he is asked for, sometimes I will not respond the first time. I will make the investigator ask me a second time because sometimes I have found that inspectors forgot what they asked me the first time and then forget it the second time and therefore I don't have to give it to them. They ask for it the second time I give it to them and I try to put it in the light best. And one of the things that we do in the background when they're asking for things and we're in the background looking at stuff, we're trying to figure out the way to put the information in the best light possible.

J. Larry Stine (40:46):
Sometimes that's not as good as we'd like, but we always wanna do it in a way that's best light possible. And you need to do the same thing. If we're not there, how am I gonna present this evidence to them with this documents or this stuff and the best light? I can't. So think about that, but but don't volunteer information because it can be used against you. And when you think it's very helpful, don't do it. What I would recommend, if you think some information's helpful and sometimes it is before you offer it to the compliance officers, go in the back room and talk about it and think, think it, just think it through before you do it. What we don't want you to do is all we do this, we do this, we do this without thinking about it. Cuz you don't always understand all the implications of thinking through. But go in the back room, talk about it. Hey, we think that this is a really great thing and then we'll figure out whether it is or not. And then at that point, only after you've talked about it, thought about the considerations and the implications, might you wanna do that? But never any information just during the investigation, very clear thinking about.

Kathleen J. Jennings (41:54):
Yeah. And a lot of times what what I like to do is if an inspector asks me for specific information while they're walking around, I ask them to just put the complete request in an email. That way we're all on the same page. They have it in writing, I have it in writing, and it's easier to figure out what they're looking for. So I'll do that. Don't make threats against employees who are interviewed by the inspector. When an inspector wants to interview employees, keep in mind that managers and supervisors, anybody who's in a position to make admissions against the company are allowed to have company council present for those interviews. So we can help out in those situations For non-supervisory, non-management employees council is not present and those employees, actually everybody who participates in any kind of inspection like this or interviews is protected from retaliation. So you don't wanna make threats against somebody who was interviewed by an inspector because that is a whole other problem that you don't wanna have to deal with.

J. Larry Stine (43:09):
Yeah. And while it's not on the list and, but I will say this, don't threaten the inspector <laugh>

Kathleen J. Jennings (43:17):
<Laugh>. Yeah, that seems obvious, but we probably do need to put that on the list. You're right.

J. Larry Stine (43:22):
Yeah. I had a compliance officer one time tell me that he went to a construction site and the supervisor at the time told him that the split toilet seat was there so that it wouldn't hit him in the head when he was drinking from the toilet. And he came back the next day and his, that supervisor's boss heard about it and they came back the next day. The supervisor was sitting in the corner wearing a dance hat and a dress. That was the way,

Kathleen J. Jennings (43:51):
No, that, that's the best way to deal with that either, but that's probably a topic for a a different webinar <laugh>. We've talked about allowing access beyond where the inspectors authorized and also allowing the inspector to just walk through your facility unaccompanied, don't do those things. As Larry pointed out, they're just there to find issues that they can use to issue a citation. And so don't let them just go anywhere without anybody following them and seeing what they're doing. That's just gonna lead to trouble.

J. Larry Stine (44:30):
Right. And keep 'em where they're authorized because yes, if I, if I've got it in one area and I don't let, I don't have to let them go in the other nine tenths of the plant, then I, I keep any of the violations on the nine 10th of plants from his vision. And it's very helpful that way to do that.

Kathleen J. Jennings (44:48):
And even sometimes you may even wanna plan a path of ingress and egress to the particular area that they do need to inspect to minimize the number of areas that they can see in plain sight because anything that they see in plain sight is also fair game for a citation.

J. Larry Stine (45:10):
It's a, that's a very good point, Kathleen, is plan, plan the route to the area you're going to do. I have literally taken umbrellas and walked outside in the pouring rain to walk around the outside the plant and have somebody open a back door to go into the area instead of walking them through the plant. We have done that before and you need to think about it if you've got a accent or event in an area in the back of the plant, is there a different way to get the compliance officers there without having to walk through the whole plant? So it's another thing you need to, to, to plan and, and take care of.

Kathleen J. Jennings (45:55):
Well, we've covered a lot of information and we are at the point of asking if anybody has any questions. I don't see any in the chat. So either Larry and I have done an incredibly good job in presenting this material or y'all are just afraid to type a question in the chat.

J. Larry Stine (46:21):
<Laugh>,

Kathleen J. Jennings (46:22):
I guess we've done an incredibly good job, right Larry

J. Larry Stine (46:25):
As always, Gavin <laugh> we're glad you came and really when you think about it, if you haven't made your plan on how you're gonna handle those inspections,

J. Larry Stine (46:40):
If the you leave here with nothing else, go back, sit down, write out a plan of what you are going to do before the inspector shows up at your doorstep because that's going to give you a lot more confidence in what you're doing, who's going to be there. And if you've got somebody who's going to be the designated person, give them an opportunity to get some training. So spend some time reading, figuring out how they're going to handle it and know their rights. Cuz that's the critical thing in handling these inspections is some compliance officers are very pushing and some are not.

Kathleen J. Jennings (47:21):
Is I I P P still the most popular violation,

J. Larry Stine (47:27):
The most pop, the most popular frankly, is the HazCom violations violations of 19 10, 1200. We get more HazCom violations than anything else. The other one we get a lot of now is lockout tagout. And then nineteen ten two twelve a one, which is the machine guard standard, still is in the top 10 of the of the of the violations. The other thing we see a lot now is personal protective equipment. Not doing the hazard. Oh, like Hasco, okay, thanks. Yeah. Employee training. Yeah. yeah, we get employed a lot of times now with the citations. You'll see almost two of 'em. Hey, you, you didn't do the lockout tagout and therefore ifso facto, you didn't do the train. Not necessarily true, but a lot of compliance officers kind of have this ipso facto rationale that if I have a violation, you didn't properly train them, therefore you didn't train them and it doesn't work. But we do get that citation all the time. And I'm lockout tagout seems to be the one we're dealing with the most lately. 

Kathleen J. Jennings (48:44):
Well that's, you know, if you don't do it, that's when you're likely to get hurt. So those tend to be injuries, I think when people aren't using those procedures. I think I also wanna point out that even though we've spent most of the time discussing OSHA inspections these points also apply to dealing with other government inspectors insofar as you still have your constitutional rights, your fourth amendment right, against an unlawful search and seizure, your fifth Amendment right against self-incrimination or incrimination of the company. So those rights exist whenever the government is, is coming after you and you need to be aware of them and be prepared for any kind of government agent. Really depends on the type of business that you're in. That will determine the type of government agents that will come into your facility. In addition to OSHA's Larry pointed out, wage and hour inspectors can be likely to show up and at least we'll give you a little bit of notice so you can have everything in order and, and have the proper person who is the face of the company dealing with them. But it's, it's important to have those ducks in a row, have that face of the company determined, have someone who is knowledgeable, who is calm, who is mature, and is not likely to threaten whichever inspector shows up. Because that is the face of the company. And that will go a long way toward the inspector's attitude, toward the inspection and towards your company.

J. Larry Stine (50:30):
Right? The the other thing in wage hour inspections, it's going back to know your rights, the wage hour, their rights, and the way they handle it depends on the type of inspection. For example, if you're just getting a general wage hour investigator, you're a private employer. If you tell 'em though, they can't come on the premises, they will not come on your premises. They will do a sidewalk inspection. If you're a farmer and they're coming in to do an investigation on H two A, you've consented by applying for the H two A to allow them on your property and you don't let them on your property, you just don't get employees anymore. So one's a very simple remedy. Not much mu much risk for a farmer throwing 'em off the site as tremendous risk. And that's where you need to know your rights times gets a little at that times gets a little complex and a little difficult for a lay layperson to understand the complexities of what they're looking at and what you're doing. And it can differ even inside the same agency.

Kathleen J. Jennings (51:35):
Don't we. Thank everybody for joining us for this webinar today. Like I said, please give us feedback if you have any, any suggestions as to future webinars. We would love to hear from you what kinds of topics you wanna hear about. So Larry Stine, thank you very much for being here and my name is Kathleen Jennings and if any of you want to follow up with us after the webinar, you can go to our firm's website, which is www.whimlaw.com. You can reach out to Larry by email, which is jls whim law.com, or myself, I am at kj j whim law.com. Or if you're feeling like actually talking to us, the main firm number is 4 0 4 3 6 5 0 9 0 0. Thank you.

Kathleen J. Jennings (00:00):
Everyone. Welcome to our August webinar presented by Wimberley Lawson. Today we are going to be talking about what to do when a government inspector shows up at your facility. And my name is Kathleen Jennings. I'm one of the attorneys here at Wimberley Lawson. Larry Stine is the other esteemed presenter in this webinar. And he is also someone who has had a vast amount of experience with these government inspectors, including one of, he is one of the few attorneys to successfully kick out OSHA inspectors who decided to overstay their welcome. So we can talk about that in a little bit. If you have any questions, please put them in the chat and we will try to answer them as best we can. And we h would love to get some feedback from all of you about how you enjoyed this webinar or didn't enjoy this webinar, or any suggestions as to how we could conduct it, or even more important suggestions for fu future topics that are important to you and your business. So, again, welcome and Larry and I hope to give you some useful information as to what you should do when a government inspector shows up.

J. Larry Stine (01:26):
As you can imagine, it's not a pleasant day when the government official pulls up into your parking lot and walks into the door and having surprise inspections is not that unusual. OSHA has a provision, the act that prohibits them from telling you to start with. You can tell from some inspections are gonna happen. You report a fatality you can almost count the next day or even later that day. OSHA will will show up. So we wanna talk a little bit about what you can do and what you can't do. So we're going to talk about the topics, but we'll mention the news the day and then answer your questions if you need to, to do that. So, but we'll, we'll go ahead and get started with the discussion. And the first part, so OSHA does not have to give advanced notice of an inspection. True or false?

Kathleen J. Jennings (02:37):
True or false? Everybody think about that. Do they have to give advanced notice of an inspection?

J. Larry Stine (02:45):
I am. They do not have to give advance on those inspection. Let me take this a little bit better. OSHA is peculiar. When Congress wrote the act, they made it a crime for OSHA to give advanced notice. That's the reason you don't get appointment letters. Other federal agencies don't have that. So a lot of times, for example, in a wage hour investigation, your first inkling that you're going to have a wage hour investigation is you receive a letter saying, Hey, we're coming out on such and such a day, and here's the documents we want you to have. But with osha, they're, you're gonna look out in your parking lot and you're gonna see a bland little GSA car drive up. And that's gonna be OSHA coming to see you. Like I said, sometimes you know they're coming cause you've got a fatality, you can count on it, you have a big accident, you know they're coming. Other than that, you don't know whether they're coming or not. Okay? Once, once inside your facility, an ocean inspector can go wherever he or she wants, true or false.

Kathleen J. Jennings (03:54):
And this is where talking about the actual law, not what the ocean inspector really thinks he or she can do, right. Larry

J. Larry Stine (04:02):
<Laugh>. That's right. They'll tell you it's false. They can't just go wherever they want with some small I'll talk about the exceptions for that rule. The way they do it. Now, typically, OSHA's coming in either on a complaint, a report of an amputation, or report of the hospitalization for a report of a fatality. They didn't used to do that, but when they changed the law about reporting and lowered the hospitalizations from three to one, and then added the amputations the entire way that OSHA conducted inspections changed up until that time, they had regularly scheduled selected inspections with wall to walls. They, but when the thing changed, they started being much more reactive, reacting to these points. The problem for Ocean doing that though, is when they come in with a administratively neutral plan, as the Supreme Court said in Barlow, they can do a wall to wall, but when they come in on a complaint, an amputation, a hospitalization, our fatality, their authority is to inspect for what happened for the fatality or for the hospitalization, the amputation.

J. Larry Stine (05:16):
And so they're not able to go everywhere. Now, some inspectors will push back on that really hard and some will not. When you have your opening conference and what happens in an inspection, investigators almost from every agency will sit down and have an opening conference and they're going to tell you what they're going to do. This is when you need to be able to find out what they're doing and how they're going to handle it. So if you have an ocean spectrum, they come in and they said, I got a complaint. And he said, okay, we'll go to the complaint area. And they says, that's grand. I'm leading my inspection to a complaint. And you can rest a little easy. But sometimes you say that and the inspector goes, no, no. I plan to do more than that. And then you need to know what your rights are and how to push back.

J. Larry Stine (06:03):
I will say that a lot of employers really don't like to push back on investigators. That's one reason. Sometimes we go there cuz it's our job to push back on 'em very politely, very respectfully. We don't disrespect them. We don't give 'em a hard time. But very politely and respectfully, we'll go, no, you're not, you're limited to the complaint and we're not letting you go anywhere. But the complaint area, and we've, we've made that stick a couple of times. As Kathleen says, on at least two occasions, they tried to expand it far beyond what they're, what they came in for. And one they came in where a guy actually stuck a screwdriver into electrical panel and had an arc flash in one area. Well, they came in, we let them do that, but the compliance officer wanted to do a wall to wall and we would not let her do it.

J. Larry Stine (07:03):
They came in with a warrant, we quashed the warrant and got OSHAs thrown out successfully. And because the litigation lasted two years, they never did come back and finish up what little bit they did win. They just gave up on it. So the other thing though, when you're pushing back, one of my favorite stories is I got hired by an employee I who had a fatality. And he and I had just met, I have driven down south of Georgia to go into his plant and he had some things in his plant I didn't want the compliance officers to see. And so the compliance officers came and they said, where this fatality, we're gonna do a wall to wall. And I said, no, you're not, you're limiting it to the fatality. And they said, well, it's our policy on to do a wall to wall.

J. Larry Stine (07:49):
And I said, well, why don't you call your office? Cause it was the Savannah OSHA office, which is the one I had just thrown 'em out a few months before and said, tell 'em I'm the lawyer to do crier. And so they went outside, they came back and they went, yeah, we'll do it. My client didn't know me for like three hours afterwards, came to me, he says, you no, when you told them no, I about had a heart attack, he says, and then you made 'em do it. So it was really strange. But you need to know your rights. You can do it, but it's uncomfortable for the employer to do it. That's one reason we can be in big help. But you can do it all right? Yes,

Kathleen J. Jennings (08:29):
Yes, yes. I, I've had, I've had ocean inspectors who've come in on a injury investigation. I can think of at least one who at some point just said, you know what? I'd like to expand the inspection. And I just politely said, no, we're not gonna consent to that. And so he calls his office this and that and ultimately he did not expand it. But yeah, the client gets a little nervous cuz a lot of companies feel like if, if we don't cooperate fully with osha, they're gonna do something really bad. Well the reality is you have constitutional rights when you deal with OSHA or any other governmental agency

J. Larry Stine (09:12):
Right? Now, the other thing that Kathleen, that you've raised is fully cooperate. And that's a real problem sometimes in the mindset. So I have a, as you recall, our name of our inspection is what to do and what not to do. So I'm, before we start on what to do, I want to tell the story about my client who will forever remain unnamed. Gave a prime example. And this story is true. It's so bad I didn't have to exaggerate anything. So I had a client that came in on the phone and said, oh, she was in the door to do a wall to wall back when they did wall to walls and could do it properly. And I said, okay, here's the things I want you to do. I said, I, wherever they, I said, you want me to come? And he goes, no, you're too expensive.

J. Larry Stine (10:02):
And I said, I understand. And you know that do not every time somebody wants an attorney there. So I said, what I want you to do is have two people go out with them, one to be a spokesperson, one to be a note taker. Every time they take a picture. I want you to take a picture from the east to west to south from the north. So I get 4:00 AM I said, and whatever it is. Cause I was talking to the president, I said, you don't talk to them because if you say something, it's really hard if you make a mistake for me to disavow. But the president says, you know, if an HR manager or a maintenance man says something, the president come in and said, no, that's not right. I'm not gonna undo it. And so go ahead and do that. I'm fine.

J. Larry Stine (10:46):
About six months later, which for OSHA's a very bad sign is the statute limitation for OSHAs six months. When they take six months, close to six months issue with citations typically going be big. And so the president calls and says he's gotten a citation from OSHA for a quarter of a million dollars. And this would be early nineties, so that'd probably be the equivalent. About three quarters of a million now. And I, my first question is, I said, okay, great. Can you send me the pictures you took? Cause it'd be very helpful for me to see the pictures. And he goes, well, we didn't take any pictures. I go, okay, so why don't you send me the notes? Then he goes, well we didn't take any notes either. I said, okay, didn't give a little worried. I said, let me talk to the guys that walked around with the compliance officer who went through your plant when he went, well, we decided not to have anybody walk through because we wanted to be fully cooperative.

J. Larry Stine (11:53):
We wanted to show that, that we were fully cooperating. And I said, any other thing you want to tell 'em? He said, well, yeah, I did talk to them a couple of times and you told me not to. I said, okay, so what happened after you got the $250,000? He says, well, when I got it, I sent a letter to the two senators and all the congressmen in the state and I called the area director of senate. And so I said, okay, good. And I picked up the phone to talk to the area director and I told him who represented, and I've known this area director for 20 years at the time. He said, Larry, I don't have anything to talk to. And he hung up on me. So being fully cooperative like that didn't really work. He ended up with a quarter of a million. We managed to knock it down to 75,000 at the time. But those are the things that you don't do. You don't truly, truly be fully cooperative in every way and just let them walk through your plan. You're just asking for disasters. So when, what happens when an ocean inspector or any federal inspector comes up have 'em show you their credentials? They certainly are there. They happen occasions when we've had sales people come in and pretend to be OSHA compliance officers to sell things. Believe it or not,

Kathleen J. Jennings (13:18):
That's, that's troubling

J. Larry Stine (13:20):
Actually. It is troubling, but it actually has, yeah, it actually has happened that a couple of salespeople and we would, we've we've had them investigated afterwards and they're, they don't do it again. No, your rights this is important because it, it is, they do have limits to what they can do. They don't have part blanche for anything and everything and every piece of record and every injure your plant, they just don't have it. They have to limit their inspections to the areas they're in for one thing. They can only inspect places that the courts have allowed under the fourth amendment. They, depending on what they're doing, like if they come in with a scheduled inspection for wall to wall, well then you're going to do it. It's, if it's a complaint, you're gonna limit it to a complaint. But you need to know your rights and you don't have to talk to them. You really don't have to say anything at all. And if you talk to them, one thing you have to do is you have to tell them the truth. You don't have to talk to 'em. And if you got something you don't want to tell 'em, don't tell 'em. But don't lie. This is not, it's not a crime. I'm not saying anything. It is a crime to say something wrong under what is it? 18 USC 1001. Did I get that right Kathleen?

Kathleen J. Jennings (14:53):
I think so. And also, you know, you have, in addition to the fourth Amendment, right, to you know, the government has to have some kind of probable cause in order to come onto and inspect your premises. And in the case of a complaint or an injury or something, that's their probable cause to get them on there. You also have a Fifth Amendment right, which is the right to remain silent. A lot of people don't always avail themselves of that right when they need to. And you have a right to have your company's attorney there. I know in the past we've had some ocean inspectors who've given some pushback on that because they don't, you know, they don't wanna have the attorneys there because we know what we're doing and we know what the limitations are on their authority. And you know, we've heard stories just as the one Larry told, where ocean inspectors show up and basically do what they want because the company doesn't know otherwise.

Kathleen J. Jennings (15:55):
And as a result, you end up with a citation that could have been avoided. So if you say you wanna have your attorney there and they say, well, why, you know, it's, and, and you see this sometimes law enforcement, why do you need an attorney? Have you done something wrong? No, I just, you know, feel more comfortable having my council here. And you know, then there's nothing wrong with that. So don't, don't give into the pushback. If you really wanna have your council there. And I know we have a number of OSHA area offices who when they're told that, you know, one of us is gonna show up, they understand that, you know, we're gonna show up and, and they can't do anything about it.

J. Larry Stine (16:37):
Right? Typically what happens is we tell the client, if they called us, and we do have some clients who have policies that we show up for every ocean inspection regardless, you can put 'em in a nice conference room. They would like to look at your OSHA 300 s and because there's a, a regulation that says you have to produce your OS 300 s within four hours and you can get a penalty. And we can't do anything with OSHA 300 s. They, they are what they are. We'll tell 'em, give 'em the 300 s, let them go in, look at them and we'll be on our way. One other thing I will say, when you put 'em in a conference room and we're on our way, this is a wonderful time for you to send your people back in the plant and look for the low hanging, what I call the low hanging fruit, which just means the obvious things like you go through and you got an extension cord where you shouldn't have an extension cord. You can unplug it in, remove it, or where you've got a, you go in and you've got a drain uncovered. Somebody's set aside the drain cover, you can put the drain cover back cause you can go through and find some of those low hanging fruits so that OSHA doesn't come in and, you know, hit you with a serious citation for not having a drain cover. The fines are now up for serious into the $14,000 range. So, wow.

Kathleen J. Jennings (18:01):
Yeah, yeah. Check your exit doors, make sure that they're not locked. Make sure your exit signs light up. Simple stuff like that. Do your, if you have eye wash areas, make sure the water comes out. You know, just, just simple stuff like that. Yeah, that's the low

J. Larry Stine (18:19):
You can and walk. Do it while you're waiting for us to get there. You'll get an hour or two while we, we get on, get on the way or whoever it is, whether it's us or the corporate safety director. If you use them as a person, you need to sign responsibility. So there's a couple of things that you need to think about. Okay, who's gonna be in charge of handling the ocean investigation? Who's gonna be person in charge? It can be an attorney, it can be your safety director, it can be the corporate safety director. I would not recommend your engineers. Engineers have this bad habit of wanting to explain everything and I just don't recommend them to be the talk the talker. So you got to have somebody in control. Have somebody that can do, be the talker with attorney, corporate safety director, hr, who's good at it.

J. Larry Stine (19:15):
You can have a maintenance guy or a engineer come, but their job is to observe, take pictures, take take notes. And the other thing is, if you have not been able to get all the low hanging fruit and the compliance officers mentioned that if you've got the maintenance guy or the engineer, you can have people nearby and get it fixed immediately. You will get brownie points. You may not even, sometimes they won't even cite you, but you will get brownie points for fixing the things so quickly cuz it, it gives a good first impression. So you need to have those people assigned and understand what's going on. So beforehand, before they show in, decide who's going to handle the overall, who's gonna be the person doing the talking and who's gonna go through the walkthrough. So you need to have those things in your mind.

J. Larry Stine (20:07):
The way I like to say it is you're going to have a written policy as to how to handle an inspection. The question is, do you write it with a little time and think it through? Are you busy writing it as the OSHA compliance software is sitting in your waiting because you will be doing these things. If you don't do it ahead of time, you'll be doing it right then and there on the spot. And the chances of you're not doing it as well is also very careful. Also, the HR person can help you. When, when compliance officers want to talk to employees, oftentimes they'll give you a list of people that they have selected that they want to talk to. Very seldom they give you the opportunity to select them, which is a wonderful opportunity. If you got it, take it. But one of the things I want to tell you, when you have an ocean inspection and they give you a list of people, sit down with the people who know those people and put them in order.

J. Larry Stine (21:12):
Put, put the happiest person who loves to work with you at the, at the top and put that grumbling guy who can never, ever say anything nice. And the world's a horrible, terrible place at the very end. It actually makes a difference with who gets to talk to the compliance officers first. Because if you get two or three people who are happy with you and are saying all the good things, when the grumbler comes in, it's now him gets three other people that the person has already heard you put the grumbler at start, then that's the, that's the impression you're gonna get that you got a problem and then the happy people won't have as much impact. You really need to think about the order you bring the people into for the interviews. You got anything else on the responsibilities, Catherine?

Kathleen J. Jennings (22:03):
Well, we, we have a, a sample written policy that I'll show you in a different slide after this one. And if anybody would like to get a copy of it or talk to us about getting a copy of it, you can reach out to us after the webinar. So we will have a sample policy that you can take a look at,

J. Larry Stine (22:23):
Right? And we also have an article that we can send you if you'll just send us a a link. I will say I haven't updated it since 2017 cause the penalties are 2017, but other than that, it's the same exact text.

Kathleen J. Jennings (22:36):
Nothing is really, but it's be prepared is really the most important point that we wanna make here so that you're not scrambling when they show up. And, and that segues into the next topic or next point, which is do your hazard assessments and safety trainings so that you have and, and document those. If you do them, you don't document them. It's like you haven't done them at all. So perform those hazard assessments and safety trainings. Document them, have that documentation available if you need it.

J. Larry Stine (23:14):
Right? And, and, and the other thing is, a lot of times when you have done a good job with your hazard assessments and your safety training and your programs and you give them to the investigator, whether it's Wage hour or OSHA or whoever, it, it really makes, gives them a comfortable feeling. They feel like they're in a place where you know what you are doing and you want to set that good impression. We know what we're doing, we know how we're doing it. And believe me, it has an impact at times I get, I get pushback from employers who really push back on the records, the hazard assessment and safety training records. Not that they don't do it, but they kind of grumble about the record part of it. Because, well, you know, really the important part of doing the safety and doing the hazard assessment as to the employees, and I don't know if I disagree with that aspect.

J. Larry Stine (24:13):
I think the, the actual training, the actual hazard assessment for the employees as the critical thing. But we're not talking about the employees, we're talking about the investigators. And these records are your defense against employees saying something that's not true. For example, we had a case once in which our client got cited for willful failure to perform training. And the client had done a video of the training, but the, and they had a roster. The employee swore up and down, he was never in that training. And so OSHA went ahead and cited them willful. And I had the safety director come in and said, let me see the safety. And when we were doing the review of the training that we got cited willful, all of a sudden the safety director was sitting there, started letting loose with a string of profanities that I won't put on recording.

J. Larry Stine (25:24):
I'm going, what's wrong? What's wrong? He says, you know that employee, that's not we, that's not the words he used. He says, that's him right there in the training in the video. So I was able to take the video, I took it down to the attorney for the solicitor's office and put it in there and we started showing it and I froze it and I said, there's your employee who's swearing up and down. He didn't get training and the attorney for the other side gave a string of profanities again and, you know, for a very different reason because his whole case went bye-bye. And they dropped the case. Records can win your case in keeping good records give you have good first impression. The records aren't for the employees. The records are for you, for your protection from the employee saying things that aren't true and the compliance officers taking what those employees said, these records can offset bad things that employees said.

J. Larry Stine (26:21):
And sometimes remember, even even guys who are your friend and compliance officer, ask them, have they had, has time training? Well since HazCom training is not exactly high on their list of things in their memory, a lot of 'em will tell them, no, I haven't done any of HazCom training. And then you'll pull the records and show the guys signed it and there it is and he'll look at it and go, yeah, I guess I was there. I don't remember it. But a lot of people were plain, they don't have training for simply because they either think training means a classroom or they just don't remember. And these records are there to protect a you from their lap and memory. Okay, copy the inspector. All right. Okay Kathleen, you put it up so

Kathleen J. Jennings (27:16):
Well copy the inspector. And that's, you know, that's the advice that Larry gave to the client that ignored him, which is when the inspector takes photos, you take photos, somebody follows him and whatever he looks at, make a note, whatever he says, make a note those kinds of things so that way you have a record of exactly what the inspector took photos of and exactly what he looked at or she looked at or commented on so that you have that information that you can, if you have to fight a citation, you can provide that to your attorney,

J. Larry Stine (27:57):
Right? And, and it's if, if we're not there, frankly we are there. Having those pictures and having those notes are critical for putting up the defense. Cause a lot of times what you can be, you can either be able to do is take your own photographs and later show. Most inspectors are really are trying to do their job. They're, they're, you know, they can be issues with inspectors. Some inspectors are frankly lazy and if you find out they're lazy, then we know how to take advantage of them being lazy. Some of 'em don't know what the heck they're looking at. We can do that every once in a while. You'll get somebody that's got a motive and we've had that happen before. Those records can help us communicate with the attorney above the, so that they can see what's actually going on. When the inspectors aren't forthcoming or think about this, inspectors will do multiple inspections and by the time you get to question them, they'll have done 20, 30, 40, 50 inspections and guess what?

J. Larry Stine (29:04):
They don't remember it that well. And so you get your own pictures so that you can bring their memory back even if they're just because they have a pal poor memory. There's a lot of reasons to copy the inspectors and keep your pictures, keep your notes. And particularly if the inspector says something is really favorable, we can do that. That statement is a statement of a party opponent and is admissible in review commission. So when the inspectors tell you, and we've had this happen before, I don't see anything to cite here. And then you get a citation. We had one this month, didn't we Kathleen?

Kathleen J. Jennings (29:48):
We did.

J. Larry Stine (29:49):
We did. And when we went to the informal settlement conference, they withdrew the citations because we had put down the statements, we knew what he was saying and they were in our notes and we couldn't good procures perform periodic internal audits. Honestly, probably the very best thing to protect yourself is to check yourself and have your audits because it keeps them from finding the problems. The other thing about periodic internal audits is it actually helps you from a legal side on the knowledge. I've had cases in where we're doing periodic internal audits and we've gone by a machine and checked off that the machine guard was good and the compliance officer comes in, the next guy during day, I've literally had this happen and somebody in sanitation and a plant forgot to put the guard back on about an hour before they showed up.

J. Larry Stine (30:51):
We were able to beat it because we could show we had an audit, it checked it the day before and it was on and we didn't have any knowledge. So it can help you establish that you're doing audits. The other thing the will help you do is an awful lot of the OSHA cases are based upon constructive knowledge. Not that you actually never saw it, but that you should have seen it. Well, if you're performing your periodic internal audits and you're documenting them, then I've got proofs that I am checking the area. I am looking for those things. I don't have constructive knowledge cuz I did look before. So performing these periodic internal audits help you in two ways. The first thing they do is, and probably the most important is you're able to find things that need to be fixed and fix them there before things happen. The secondary value is what I say. I can use them if something happens and they come in and the machine guard's been taken off and put back on the day of the inspection.

Kathleen J. Jennings (31:54):
But keep in mind, you know, if you do these periodic internal audits and you find potential hazards, then you also need to be committed to fixing those hazards. Because if you do the audit, become aware of a hazard and don't do anything about it. That sounds an awful lot like willful, doesn't it, Larry?

J. Larry Stine (32:16):
It does. And that is an important point to make is it's not enough just to do the audits. You've got to, you've gotta follow up on it. The, the thing I like to see the best is when I see these audits, a lot of times they'll do audits. They'll take a picture. Well, if you fix it herpes sake, take another picture. Sometimes you end up with an audits but nothing but violations of them and nothing other than a little note fixed. You don't have to take pictures. If you do take pictures, take a picture when you fix it so that they believe me. It is very impressive if you're having an audit and the compliance officer looks at the audit and sees the machine guards off and the next picture shows the machines guards back on or they see something is broken and the next picture shows it's fixed or they got a busted electrical panel and the next picture is they fix you.

J. Larry Stine (33:12):
But you do wanna make certain that you document the corrective actions. I will tell you I had a case with one with a very large company where I ended up with 4,800 items and they were really good about documenting them and they did not document the fixing at all. And they, the safety people didn't inspection the operation people were supposed to be to doing the fixing and they did. So, alright, so we have a sample policy here that we've, we've pulled from somebody that has used us and we, we think this is really important to be prepared. This is think about what's going to happen before they show up so that when you have this, when they walk up to the door, you can whip this thing out and you've got it on there. You know what the policy is. Now we've written this one as the attorney, but as I said, you can use the lead person as your vice president for safety or corporate safety director.

J. Larry Stine (34:26):
Somebody who's got some knowledge, understands your rights cuz they really need to understand when they can push back and when they shouldn't and how to handle 'em. And then put their numbers there and tell them what's going on. Now if you got an act, if you got a a death and we handle way too many of them, but we do handle them, that's the time. A lot of times we're going to try to get ourselves there as quickly as possible cuz you're gonna report it within eight hours and OSHA will have somebody there. And I will tell you, I have gone to plants at two in the morning. I've gotten calls that, you know, hey, we got a fatality. I've gotten in my car, driven to the plant, conducted the investigation, figured out what's wrong and by the time the compliance officer shows up, we're ready to figure out and explain what happened and why it happened and come up with the best ways to present it.

J. Larry Stine (35:28):
Sometimes we can present it cuz we didn't do anything wrong and we can do that or we can present it in such a way to, to make it look as good as possible and have things already fixed quickly. But you need to do that. You need to have somebody ready to come and go. This plan, you put your name, put your telephone numbers down so you can call them. And whoever's on there needs to understand that they may, they need to leave their phone on cuz you may need to be able to call them at three o'clock in the morning. By the way, at four o'clock in the morning, all the lights are lined up. You're gonna really make traffic in Atlanta. Really great, Kathleen.

Kathleen J. Jennings (36:06):
Yeah, there's probably a lot less traffic at that point. So, oh,

J. Larry Stine (36:10):
I, I went someplace not too long ago at four o'clock in the morning and the thing I found out I didn't know at the time we're heading through Tucker, was they synced up all the lights. I made it all, I made like eight miles to the expressway without hitting a red light. I've never done that in my life, but

Kathleen J. Jennings (36:24):
Anyway, but we're not encouraging you to call Larry at four o'clock in the morning just so he can see the lights. But if you need to, you know that one of us can be available, right? This moves on. Larry had mentioned a bunch of don'ts in his story of the client who didn't listen to his legal advice. And so these are some of the don'ts that you need to make sure that you don't do in regard to dealing with any government inspector. Understand that managers and supervisors are basically agents of your company. So whatever they say is binding against the company. So you wanna make sure they don't say anything that could be used as an admission against the company, such as if the, if the manager or supervisors, you know, the ocean inspector or any kind of government agent says, well, you know, it looks like this has been a problem for a long time. And the manager says, yeah, it really has. You know, we keep meaning to fix it but we just haven't gotten around to it. That's an admission that can be used against the company later. So don't let anybody say that. It's, it's like any kind of proceeding like a court proceeding criminal proceeding. The less you say the less that can be used against you.

J. Larry Stine (37:49):
Right? Anything you say can be used against you in a court of law

Kathleen J. Jennings (37:53):
Absolutely. Or in any administrative proceeding. So less the better,

J. Larry Stine (38:00):
Right? I'm not gonna give you a Miranda warning, we're gonna give you a Miranda warning. We're telling you don't, don't make admissions against them. That's one reason I don't allow engineers. I still remember I was in a plant one time and the ocean compliance officer looked at a problem and the engineer proceeded to tell them how in the last two years they had been working trying to fix this problem. We got a willful out of the engineer. I mean he was very detailed. All the things they had tried, it's for two years they left the thing wrong. The other thing, the volunteer information it's very hard not to volunteer information. And a lot of people want to cooperate the way I tell clients to do it, and there's a reason I do it. I said, I want you to give the appearance of cooperation.

J. Larry Stine (38:53):
And the reason I keep, I finally, I finally landed on that because if you use the word cooperate with the government, oh my gosh, some of the employees will just go outta the way to pull documents to want to talk to them, explain things. And that's not the way you need to handle it. They are not there to help you. They are there to see if they can find violations and issue citations. They are not judged by on their job performance standards, by how many compliance inspections they found. They're judged on their performance evaluations by how successful they are in finding violations. They won't tell you that. And it's written in ways that's not a direct quota, but believe me, their managers are expecting them to find things and that is their job. And you may not forget it. That's just what they're there to do.

J. Larry Stine (39:48):
And they're not there to help you. They're there to find violations and issue citations and to penalize you. So when the voluntary information just don't do it, what we'll do is we respond to what the compliance officer, the government inspector asks for any nothing else. And if I don't like what he is asked for, sometimes I will not respond the first time. I will make the investigator ask me a second time because sometimes I have found that inspectors forgot what they asked me the first time and then forget it the second time and therefore I don't have to give it to them. They ask for it the second time I give it to them and I try to put it in the light best. And one of the things that we do in the background when they're asking for things and we're in the background looking at stuff, we're trying to figure out the way to put the information in the best light possible.

J. Larry Stine (40:46):
Sometimes that's not as good as we'd like, but we always wanna do it in a way that's best light possible. And you need to do the same thing. If we're not there, how am I gonna present this evidence to them with this documents or this stuff and the best light? I can't. So think about that, but but don't volunteer information because it can be used against you. And when you think it's very helpful, don't do it. What I would recommend, if you think some information's helpful and sometimes it is before you offer it to the compliance officers, go in the back room and talk about it and think, think it, just think it through before you do it. What we don't want you to do is all we do this, we do this, we do this without thinking about it. Cuz you don't always understand all the implications of thinking through. But go in the back room, talk about it. Hey, we think that this is a really great thing and then we'll figure out whether it is or not. And then at that point, only after you've talked about it, thought about the considerations and the implications, might you wanna do that? But never any information just during the investigation, very clear thinking about.

Kathleen J. Jennings (41:54):
Yeah. And a lot of times what what I like to do is if an inspector asks me for specific information while they're walking around, I ask them to just put the complete request in an email. That way we're all on the same page. They have it in writing, I have it in writing, and it's easier to figure out what they're looking for. So I'll do that. Don't make threats against employees who are interviewed by the inspector. When an inspector wants to interview employees, keep in mind that managers and supervisors, anybody who's in a position to make admissions against the company are allowed to have company council present for those interviews. So we can help out in those situations For non-supervisory, non-management employees council is not present and those employees, actually everybody who participates in any kind of inspection like this or interviews is protected from retaliation. So you don't wanna make threats against somebody who was interviewed by an inspector because that is a whole other problem that you don't wanna have to deal with.

J. Larry Stine (43:09):
Yeah. And while it's not on the list and, but I will say this, don't threaten the inspector <laugh>

Kathleen J. Jennings (43:17):
<Laugh>. Yeah, that seems obvious, but we probably do need to put that on the list. You're right.

J. Larry Stine (43:22):
Yeah. I had a compliance officer one time tell me that he went to a construction site and the supervisor at the time told him that the split toilet seat was there so that it wouldn't hit him in the head when he was drinking from the toilet. And he came back the next day and his, that supervisor's boss heard about it and they came back the next day. The supervisor was sitting in the corner wearing a dance hat and a dress. That was the way,

Kathleen J. Jennings (43:51):
No, that, that's the best way to deal with that either, but that's probably a topic for a a different webinar <laugh>. We've talked about allowing access beyond where the inspectors authorized and also allowing the inspector to just walk through your facility unaccompanied, don't do those things. As Larry pointed out, they're just there to find issues that they can use to issue a citation. And so don't let them just go anywhere without anybody following them and seeing what they're doing. That's just gonna lead to trouble.

J. Larry Stine (44:30):
Right. And keep 'em where they're authorized because yes, if I, if I've got it in one area and I don't let, I don't have to let them go in the other nine tenths of the plant, then I, I keep any of the violations on the nine 10th of plants from his vision. And it's very helpful that way to do that.

Kathleen J. Jennings (44:48):
And even sometimes you may even wanna plan a path of ingress and egress to the particular area that they do need to inspect to minimize the number of areas that they can see in plain sight because anything that they see in plain sight is also fair game for a citation.

J. Larry Stine (45:10):
It's a, that's a very good point, Kathleen, is plan, plan the route to the area you're going to do. I have literally taken umbrellas and walked outside in the pouring rain to walk around the outside the plant and have somebody open a back door to go into the area instead of walking them through the plant. We have done that before and you need to think about it if you've got a accent or event in an area in the back of the plant, is there a different way to get the compliance officers there without having to walk through the whole plant? So it's another thing you need to, to, to plan and, and take care of.

Kathleen J. Jennings (45:55):
Well, we've covered a lot of information and we are at the point of asking if anybody has any questions. I don't see any in the chat. So either Larry and I have done an incredibly good job in presenting this material or y'all are just afraid to type a question in the chat.

J. Larry Stine (46:21):
<Laugh>,

Kathleen J. Jennings (46:22):
I guess we've done an incredibly good job, right Larry

J. Larry Stine (46:25):
As always, Gavin <laugh> we're glad you came and really when you think about it, if you haven't made your plan on how you're gonna handle those inspections,

J. Larry Stine (46:40):
If the you leave here with nothing else, go back, sit down, write out a plan of what you are going to do before the inspector shows up at your doorstep because that's going to give you a lot more confidence in what you're doing, who's going to be there. And if you've got somebody who's going to be the designated person, give them an opportunity to get some training. So spend some time reading, figuring out how they're going to handle it and know their rights. Cuz that's the critical thing in handling these inspections is some compliance officers are very pushing and some are not.

Kathleen J. Jennings (47:21):
Is I I P P still the most popular violation,

J. Larry Stine (47:27):
The most pop, the most popular frankly, is the HazCom violations violations of 19 10, 1200. We get more HazCom violations than anything else. The other one we get a lot of now is lockout tagout. And then nineteen ten two twelve a one, which is the machine guard standard, still is in the top 10 of the of the of the violations. The other thing we see a lot now is personal protective equipment. Not doing the hazard. Oh, like Hasco, okay, thanks. Yeah. Employee training. Yeah. yeah, we get employed a lot of times now with the citations. You'll see almost two of 'em. Hey, you, you didn't do the lockout tagout and therefore ifso facto, you didn't do the train. Not necessarily true, but a lot of compliance officers kind of have this ipso facto rationale that if I have a violation, you didn't properly train them, therefore you didn't train them and it doesn't work. But we do get that citation all the time. And I'm lockout tagout seems to be the one we're dealing with the most lately. 

Kathleen J. Jennings (48:44):
Well that's, you know, if you don't do it, that's when you're likely to get hurt. So those tend to be injuries, I think when people aren't using those procedures. I think I also wanna point out that even though we've spent most of the time discussing OSHA inspections these points also apply to dealing with other government inspectors insofar as you still have your constitutional rights, your fourth amendment right, against an unlawful search and seizure, your fifth Amendment right against self-incrimination or incrimination of the company. So those rights exist whenever the government is, is coming after you and you need to be aware of them and be prepared for any kind of government agent. Really depends on the type of business that you're in. That will determine the type of government agents that will come into your facility. In addition to OSHA's Larry pointed out, wage and hour inspectors can be likely to show up and at least we'll give you a little bit of notice so you can have everything in order and, and have the proper person who is the face of the company dealing with them. But it's, it's important to have those ducks in a row, have that face of the company determined, have someone who is knowledgeable, who is calm, who is mature, and is not likely to threaten whichever inspector shows up. Because that is the face of the company. And that will go a long way toward the inspector's attitude, toward the inspection and towards your company.

J. Larry Stine (50:30):
Right? The the other thing in wage hour inspections, it's going back to know your rights, the wage hour, their rights, and the way they handle it depends on the type of inspection. For example, if you're just getting a general wage hour investigator, you're a private employer. If you tell 'em though, they can't come on the premises, they will not come on your premises. They will do a sidewalk inspection. If you're a farmer and they're coming in to do an investigation on H two A, you've consented by applying for the H two A to allow them on your property and you don't let them on your property, you just don't get employees anymore. So one's a very simple remedy. Not much mu much risk for a farmer throwing 'em off the site as tremendous risk. And that's where you need to know your rights times gets a little at that times gets a little complex and a little difficult for a lay layperson to understand the complexities of what they're looking at and what you're doing. And it can differ even inside the same agency.

Kathleen J. Jennings (51:35):
Don't we. Thank everybody for joining us for this webinar today. Like I said, please give us feedback if you have any, any suggestions as to future webinars. We would love to hear from you what kinds of topics you wanna hear about. So Larry Stine, thank you very much for being here and my name is Kathleen Jennings and if any of you want to follow up with us after the webinar, you can go to our firm's website, which is www.whimlaw.com. You can reach out to Larry by email, which is jls whim law.com, or myself, I am at kj j whim law.com. Or if you're feeling like actually talking to us, the main firm number is 4 0 4 3 6 5 0 9 0 0. Thank you.

Kathleen J. Jennings (00:00):
Everyone. Welcome to our August webinar presented by Wimberley Lawson. Today we are going to be talking about what to do when a government inspector shows up at your facility. And my name is Kathleen Jennings. I'm one of the attorneys here at Wimberley Lawson. Larry Stine is the other esteemed presenter in this webinar. And he is also someone who has had a vast amount of experience with these government inspectors, including one of, he is one of the few attorneys to successfully kick out OSHA inspectors who decided to overstay their welcome. So we can talk about that in a little bit. If you have any questions, please put them in the chat and we will try to answer them as best we can. And we h would love to get some feedback from all of you about how you enjoyed this webinar or didn't enjoy this webinar, or any suggestions as to how we could conduct it, or even more important suggestions for fu future topics that are important to you and your business. So, again, welcome and Larry and I hope to give you some useful information as to what you should do when a government inspector shows up.

J. Larry Stine (01:26):
As you can imagine, it's not a pleasant day when the government official pulls up into your parking lot and walks into the door and having surprise inspections is not that unusual. OSHA has a provision, the act that prohibits them from telling you to start with. You can tell from some inspections are gonna happen. You report a fatality you can almost count the next day or even later that day. OSHA will will show up. So we wanna talk a little bit about what you can do and what you can't do. So we're going to talk about the topics, but we'll mention the news the day and then answer your questions if you need to, to do that. So, but we'll, we'll go ahead and get started with the discussion. And the first part, so OSHA does not have to give advanced notice of an inspection. True or false?

Kathleen J. Jennings (02:37):
True or false? Everybody think about that. Do they have to give advanced notice of an inspection?

J. Larry Stine (02:45):
I am. They do not have to give advance on those inspection. Let me take this a little bit better. OSHA is peculiar. When Congress wrote the act, they made it a crime for OSHA to give advanced notice. That's the reason you don't get appointment letters. Other federal agencies don't have that. So a lot of times, for example, in a wage hour investigation, your first inkling that you're going to have a wage hour investigation is you receive a letter saying, Hey, we're coming out on such and such a day, and here's the documents we want you to have. But with osha, they're, you're gonna look out in your parking lot and you're gonna see a bland little GSA car drive up. And that's gonna be OSHA coming to see you. Like I said, sometimes you know they're coming cause you've got a fatality, you can count on it, you have a big accident, you know they're coming. Other than that, you don't know whether they're coming or not. Okay? Once, once inside your facility, an ocean inspector can go wherever he or she wants, true or false.

Kathleen J. Jennings (03:54):
And this is where talking about the actual law, not what the ocean inspector really thinks he or she can do, right. Larry

J. Larry Stine (04:02):
<Laugh>. That's right. They'll tell you it's false. They can't just go wherever they want with some small I'll talk about the exceptions for that rule. The way they do it. Now, typically, OSHA's coming in either on a complaint, a report of an amputation, or report of the hospitalization for a report of a fatality. They didn't used to do that, but when they changed the law about reporting and lowered the hospitalizations from three to one, and then added the amputations the entire way that OSHA conducted inspections changed up until that time, they had regularly scheduled selected inspections with wall to walls. They, but when the thing changed, they started being much more reactive, reacting to these points. The problem for Ocean doing that though, is when they come in with a administratively neutral plan, as the Supreme Court said in Barlow, they can do a wall to wall, but when they come in on a complaint, an amputation, a hospitalization, our fatality, their authority is to inspect for what happened for the fatality or for the hospitalization, the amputation.

J. Larry Stine (05:16):
And so they're not able to go everywhere. Now, some inspectors will push back on that really hard and some will not. When you have your opening conference and what happens in an inspection, investigators almost from every agency will sit down and have an opening conference and they're going to tell you what they're going to do. This is when you need to be able to find out what they're doing and how they're going to handle it. So if you have an ocean spectrum, they come in and they said, I got a complaint. And he said, okay, we'll go to the complaint area. And they says, that's grand. I'm leading my inspection to a complaint. And you can rest a little easy. But sometimes you say that and the inspector goes, no, no. I plan to do more than that. And then you need to know what your rights are and how to push back.

J. Larry Stine (06:03):
I will say that a lot of employers really don't like to push back on investigators. That's one reason. Sometimes we go there cuz it's our job to push back on 'em very politely, very respectfully. We don't disrespect them. We don't give 'em a hard time. But very politely and respectfully, we'll go, no, you're not, you're limited to the complaint and we're not letting you go anywhere. But the complaint area, and we've, we've made that stick a couple of times. As Kathleen says, on at least two occasions, they tried to expand it far beyond what they're, what they came in for. And one they came in where a guy actually stuck a screwdriver into electrical panel and had an arc flash in one area. Well, they came in, we let them do that, but the compliance officer wanted to do a wall to wall and we would not let her do it.

J. Larry Stine (07:03):
They came in with a warrant, we quashed the warrant and got OSHAs thrown out successfully. And because the litigation lasted two years, they never did come back and finish up what little bit they did win. They just gave up on it. So the other thing though, when you're pushing back, one of my favorite stories is I got hired by an employee I who had a fatality. And he and I had just met, I have driven down south of Georgia to go into his plant and he had some things in his plant I didn't want the compliance officers to see. And so the compliance officers came and they said, where this fatality, we're gonna do a wall to wall. And I said, no, you're not, you're limiting it to the fatality. And they said, well, it's our policy on to do a wall to wall.

J. Larry Stine (07:49):
And I said, well, why don't you call your office? Cause it was the Savannah OSHA office, which is the one I had just thrown 'em out a few months before and said, tell 'em I'm the lawyer to do crier. And so they went outside, they came back and they went, yeah, we'll do it. My client didn't know me for like three hours afterwards, came to me, he says, you no, when you told them no, I about had a heart attack, he says, and then you made 'em do it. So it was really strange. But you need to know your rights. You can do it, but it's uncomfortable for the employer to do it. That's one reason we can be in big help. But you can do it all right? Yes,

Kathleen J. Jennings (08:29):
Yes, yes. I, I've had, I've had ocean inspectors who've come in on a injury investigation. I can think of at least one who at some point just said, you know what? I'd like to expand the inspection. And I just politely said, no, we're not gonna consent to that. And so he calls his office this and that and ultimately he did not expand it. But yeah, the client gets a little nervous cuz a lot of companies feel like if, if we don't cooperate fully with osha, they're gonna do something really bad. Well the reality is you have constitutional rights when you deal with OSHA or any other governmental agency

J. Larry Stine (09:12):
Right? Now, the other thing that Kathleen, that you've raised is fully cooperate. And that's a real problem sometimes in the mindset. So I have a, as you recall, our name of our inspection is what to do and what not to do. So I'm, before we start on what to do, I want to tell the story about my client who will forever remain unnamed. Gave a prime example. And this story is true. It's so bad I didn't have to exaggerate anything. So I had a client that came in on the phone and said, oh, she was in the door to do a wall to wall back when they did wall to walls and could do it properly. And I said, okay, here's the things I want you to do. I said, I, wherever they, I said, you want me to come? And he goes, no, you're too expensive.

J. Larry Stine (10:02):
And I said, I understand. And you know that do not every time somebody wants an attorney there. So I said, what I want you to do is have two people go out with them, one to be a spokesperson, one to be a note taker. Every time they take a picture. I want you to take a picture from the east to west to south from the north. So I get 4:00 AM I said, and whatever it is. Cause I was talking to the president, I said, you don't talk to them because if you say something, it's really hard if you make a mistake for me to disavow. But the president says, you know, if an HR manager or a maintenance man says something, the president come in and said, no, that's not right. I'm not gonna undo it. And so go ahead and do that. I'm fine.

J. Larry Stine (10:46):
About six months later, which for OSHA's a very bad sign is the statute limitation for OSHAs six months. When they take six months, close to six months issue with citations typically going be big. And so the president calls and says he's gotten a citation from OSHA for a quarter of a million dollars. And this would be early nineties, so that'd probably be the equivalent. About three quarters of a million now. And I, my first question is, I said, okay, great. Can you send me the pictures you took? Cause it'd be very helpful for me to see the pictures. And he goes, well, we didn't take any pictures. I go, okay, so why don't you send me the notes? Then he goes, well we didn't take any notes either. I said, okay, didn't give a little worried. I said, let me talk to the guys that walked around with the compliance officer who went through your plant when he went, well, we decided not to have anybody walk through because we wanted to be fully cooperative.

J. Larry Stine (11:53):
We wanted to show that, that we were fully cooperating. And I said, any other thing you want to tell 'em? He said, well, yeah, I did talk to them a couple of times and you told me not to. I said, okay, so what happened after you got the $250,000? He says, well, when I got it, I sent a letter to the two senators and all the congressmen in the state and I called the area director of senate. And so I said, okay, good. And I picked up the phone to talk to the area director and I told him who represented, and I've known this area director for 20 years at the time. He said, Larry, I don't have anything to talk to. And he hung up on me. So being fully cooperative like that didn't really work. He ended up with a quarter of a million. We managed to knock it down to 75,000 at the time. But those are the things that you don't do. You don't truly, truly be fully cooperative in every way and just let them walk through your plan. You're just asking for disasters. So when, what happens when an ocean inspector or any federal inspector comes up have 'em show you their credentials? They certainly are there. They happen occasions when we've had sales people come in and pretend to be OSHA compliance officers to sell things. Believe it or not,

Kathleen J. Jennings (13:18):
That's, that's troubling

J. Larry Stine (13:20):
Actually. It is troubling, but it actually has, yeah, it actually has happened that a couple of salespeople and we would, we've we've had them investigated afterwards and they're, they don't do it again. No, your rights this is important because it, it is, they do have limits to what they can do. They don't have part blanche for anything and everything and every piece of record and every injure your plant, they just don't have it. They have to limit their inspections to the areas they're in for one thing. They can only inspect places that the courts have allowed under the fourth amendment. They, depending on what they're doing, like if they come in with a scheduled inspection for wall to wall, well then you're going to do it. It's, if it's a complaint, you're gonna limit it to a complaint. But you need to know your rights and you don't have to talk to them. You really don't have to say anything at all. And if you talk to them, one thing you have to do is you have to tell them the truth. You don't have to talk to 'em. And if you got something you don't want to tell 'em, don't tell 'em. But don't lie. This is not, it's not a crime. I'm not saying anything. It is a crime to say something wrong under what is it? 18 USC 1001. Did I get that right Kathleen?

Kathleen J. Jennings (14:53):
I think so. And also, you know, you have, in addition to the fourth Amendment, right, to you know, the government has to have some kind of probable cause in order to come onto and inspect your premises. And in the case of a complaint or an injury or something, that's their probable cause to get them on there. You also have a Fifth Amendment right, which is the right to remain silent. A lot of people don't always avail themselves of that right when they need to. And you have a right to have your company's attorney there. I know in the past we've had some ocean inspectors who've given some pushback on that because they don't, you know, they don't wanna have the attorneys there because we know what we're doing and we know what the limitations are on their authority. And you know, we've heard stories just as the one Larry told, where ocean inspectors show up and basically do what they want because the company doesn't know otherwise.

Kathleen J. Jennings (15:55):
And as a result, you end up with a citation that could have been avoided. So if you say you wanna have your attorney there and they say, well, why, you know, it's, and, and you see this sometimes law enforcement, why do you need an attorney? Have you done something wrong? No, I just, you know, feel more comfortable having my council here. And you know, then there's nothing wrong with that. So don't, don't give into the pushback. If you really wanna have your council there. And I know we have a number of OSHA area offices who when they're told that, you know, one of us is gonna show up, they understand that, you know, we're gonna show up and, and they can't do anything about it.

J. Larry Stine (16:37):
Right? Typically what happens is we tell the client, if they called us, and we do have some clients who have policies that we show up for every ocean inspection regardless, you can put 'em in a nice conference room. They would like to look at your OSHA 300 s and because there's a, a regulation that says you have to produce your OS 300 s within four hours and you can get a penalty. And we can't do anything with OSHA 300 s. They, they are what they are. We'll tell 'em, give 'em the 300 s, let them go in, look at them and we'll be on our way. One other thing I will say, when you put 'em in a conference room and we're on our way, this is a wonderful time for you to send your people back in the plant and look for the low hanging, what I call the low hanging fruit, which just means the obvious things like you go through and you got an extension cord where you shouldn't have an extension cord. You can unplug it in, remove it, or where you've got a, you go in and you've got a drain uncovered. Somebody's set aside the drain cover, you can put the drain cover back cause you can go through and find some of those low hanging fruits so that OSHA doesn't come in and, you know, hit you with a serious citation for not having a drain cover. The fines are now up for serious into the $14,000 range. So, wow.

Kathleen J. Jennings (18:01):
Yeah, yeah. Check your exit doors, make sure that they're not locked. Make sure your exit signs light up. Simple stuff like that. Do your, if you have eye wash areas, make sure the water comes out. You know, just, just simple stuff like that. Yeah, that's the low

J. Larry Stine (18:19):
You can and walk. Do it while you're waiting for us to get there. You'll get an hour or two while we, we get on, get on the way or whoever it is, whether it's us or the corporate safety director. If you use them as a person, you need to sign responsibility. So there's a couple of things that you need to think about. Okay, who's gonna be in charge of handling the ocean investigation? Who's gonna be person in charge? It can be an attorney, it can be your safety director, it can be the corporate safety director. I would not recommend your engineers. Engineers have this bad habit of wanting to explain everything and I just don't recommend them to be the talk the talker. So you got to have somebody in control. Have somebody that can do, be the talker with attorney, corporate safety director, hr, who's good at it.

J. Larry Stine (19:15):
You can have a maintenance guy or a engineer come, but their job is to observe, take pictures, take take notes. And the other thing is, if you have not been able to get all the low hanging fruit and the compliance officers mentioned that if you've got the maintenance guy or the engineer, you can have people nearby and get it fixed immediately. You will get brownie points. You may not even, sometimes they won't even cite you, but you will get brownie points for fixing the things so quickly cuz it, it gives a good first impression. So you need to have those people assigned and understand what's going on. So beforehand, before they show in, decide who's going to handle the overall, who's gonna be the person doing the talking and who's gonna go through the walkthrough. So you need to have those things in your mind.

J. Larry Stine (20:07):
The way I like to say it is you're going to have a written policy as to how to handle an inspection. The question is, do you write it with a little time and think it through? Are you busy writing it as the OSHA compliance software is sitting in your waiting because you will be doing these things. If you don't do it ahead of time, you'll be doing it right then and there on the spot. And the chances of you're not doing it as well is also very careful. Also, the HR person can help you. When, when compliance officers want to talk to employees, oftentimes they'll give you a list of people that they have selected that they want to talk to. Very seldom they give you the opportunity to select them, which is a wonderful opportunity. If you got it, take it. But one of the things I want to tell you, when you have an ocean inspection and they give you a list of people, sit down with the people who know those people and put them in order.

J. Larry Stine (21:12):
Put, put the happiest person who loves to work with you at the, at the top and put that grumbling guy who can never, ever say anything nice. And the world's a horrible, terrible place at the very end. It actually makes a difference with who gets to talk to the compliance officers first. Because if you get two or three people who are happy with you and are saying all the good things, when the grumbler comes in, it's now him gets three other people that the person has already heard you put the grumbler at start, then that's the, that's the impression you're gonna get that you got a problem and then the happy people won't have as much impact. You really need to think about the order you bring the people into for the interviews. You got anything else on the responsibilities, Catherine?

Kathleen J. Jennings (22:03):
Well, we, we have a, a sample written policy that I'll show you in a different slide after this one. And if anybody would like to get a copy of it or talk to us about getting a copy of it, you can reach out to us after the webinar. So we will have a sample policy that you can take a look at,

J. Larry Stine (22:23):
Right? And we also have an article that we can send you if you'll just send us a a link. I will say I haven't updated it since 2017 cause the penalties are 2017, but other than that, it's the same exact text.

Kathleen J. Jennings (22:36):
Nothing is really, but it's be prepared is really the most important point that we wanna make here so that you're not scrambling when they show up. And, and that segues into the next topic or next point, which is do your hazard assessments and safety trainings so that you have and, and document those. If you do them, you don't document them. It's like you haven't done them at all. So perform those hazard assessments and safety trainings. Document them, have that documentation available if you need it.

J. Larry Stine (23:14):
Right? And, and, and the other thing is, a lot of times when you have done a good job with your hazard assessments and your safety training and your programs and you give them to the investigator, whether it's Wage hour or OSHA or whoever, it, it really makes, gives them a comfortable feeling. They feel like they're in a place where you know what you are doing and you want to set that good impression. We know what we're doing, we know how we're doing it. And believe me, it has an impact at times I get, I get pushback from employers who really push back on the records, the hazard assessment and safety training records. Not that they don't do it, but they kind of grumble about the record part of it. Because, well, you know, really the important part of doing the safety and doing the hazard assessment as to the employees, and I don't know if I disagree with that aspect.

J. Larry Stine (24:13):
I think the, the actual training, the actual hazard assessment for the employees as the critical thing. But we're not talking about the employees, we're talking about the investigators. And these records are your defense against employees saying something that's not true. For example, we had a case once in which our client got cited for willful failure to perform training. And the client had done a video of the training, but the, and they had a roster. The employee swore up and down, he was never in that training. And so OSHA went ahead and cited them willful. And I had the safety director come in and said, let me see the safety. And when we were doing the review of the training that we got cited willful, all of a sudden the safety director was sitting there, started letting loose with a string of profanities that I won't put on recording.

J. Larry Stine (25:24):
I'm going, what's wrong? What's wrong? He says, you know that employee, that's not we, that's not the words he used. He says, that's him right there in the training in the video. So I was able to take the video, I took it down to the attorney for the solicitor's office and put it in there and we started showing it and I froze it and I said, there's your employee who's swearing up and down. He didn't get training and the attorney for the other side gave a string of profanities again and, you know, for a very different reason because his whole case went bye-bye. And they dropped the case. Records can win your case in keeping good records give you have good first impression. The records aren't for the employees. The records are for you, for your protection from the employee saying things that aren't true and the compliance officers taking what those employees said, these records can offset bad things that employees said.

J. Larry Stine (26:21):
And sometimes remember, even even guys who are your friend and compliance officer, ask them, have they had, has time training? Well since HazCom training is not exactly high on their list of things in their memory, a lot of 'em will tell them, no, I haven't done any of HazCom training. And then you'll pull the records and show the guys signed it and there it is and he'll look at it and go, yeah, I guess I was there. I don't remember it. But a lot of people were plain, they don't have training for simply because they either think training means a classroom or they just don't remember. And these records are there to protect a you from their lap and memory. Okay, copy the inspector. All right. Okay Kathleen, you put it up so

Kathleen J. Jennings (27:16):
Well copy the inspector. And that's, you know, that's the advice that Larry gave to the client that ignored him, which is when the inspector takes photos, you take photos, somebody follows him and whatever he looks at, make a note, whatever he says, make a note those kinds of things so that way you have a record of exactly what the inspector took photos of and exactly what he looked at or she looked at or commented on so that you have that information that you can, if you have to fight a citation, you can provide that to your attorney,

J. Larry Stine (27:57):
Right? And, and it's if, if we're not there, frankly we are there. Having those pictures and having those notes are critical for putting up the defense. Cause a lot of times what you can be, you can either be able to do is take your own photographs and later show. Most inspectors are really are trying to do their job. They're, they're, you know, they can be issues with inspectors. Some inspectors are frankly lazy and if you find out they're lazy, then we know how to take advantage of them being lazy. Some of 'em don't know what the heck they're looking at. We can do that every once in a while. You'll get somebody that's got a motive and we've had that happen before. Those records can help us communicate with the attorney above the, so that they can see what's actually going on. When the inspectors aren't forthcoming or think about this, inspectors will do multiple inspections and by the time you get to question them, they'll have done 20, 30, 40, 50 inspections and guess what?

J. Larry Stine (29:04):
They don't remember it that well. And so you get your own pictures so that you can bring their memory back even if they're just because they have a pal poor memory. There's a lot of reasons to copy the inspectors and keep your pictures, keep your notes. And particularly if the inspector says something is really favorable, we can do that. That statement is a statement of a party opponent and is admissible in review commission. So when the inspectors tell you, and we've had this happen before, I don't see anything to cite here. And then you get a citation. We had one this month, didn't we Kathleen?

Kathleen J. Jennings (29:48):
We did.

J. Larry Stine (29:49):
We did. And when we went to the informal settlement conference, they withdrew the citations because we had put down the statements, we knew what he was saying and they were in our notes and we couldn't good procures perform periodic internal audits. Honestly, probably the very best thing to protect yourself is to check yourself and have your audits because it keeps them from finding the problems. The other thing about periodic internal audits is it actually helps you from a legal side on the knowledge. I've had cases in where we're doing periodic internal audits and we've gone by a machine and checked off that the machine guard was good and the compliance officer comes in, the next guy during day, I've literally had this happen and somebody in sanitation and a plant forgot to put the guard back on about an hour before they showed up.

J. Larry Stine (30:51):
We were able to beat it because we could show we had an audit, it checked it the day before and it was on and we didn't have any knowledge. So it can help you establish that you're doing audits. The other thing the will help you do is an awful lot of the OSHA cases are based upon constructive knowledge. Not that you actually never saw it, but that you should have seen it. Well, if you're performing your periodic internal audits and you're documenting them, then I've got proofs that I am checking the area. I am looking for those things. I don't have constructive knowledge cuz I did look before. So performing these periodic internal audits help you in two ways. The first thing they do is, and probably the most important is you're able to find things that need to be fixed and fix them there before things happen. The secondary value is what I say. I can use them if something happens and they come in and the machine guard's been taken off and put back on the day of the inspection.

Kathleen J. Jennings (31:54):
But keep in mind, you know, if you do these periodic internal audits and you find potential hazards, then you also need to be committed to fixing those hazards. Because if you do the audit, become aware of a hazard and don't do anything about it. That sounds an awful lot like willful, doesn't it, Larry?

J. Larry Stine (32:16):
It does. And that is an important point to make is it's not enough just to do the audits. You've got to, you've gotta follow up on it. The, the thing I like to see the best is when I see these audits, a lot of times they'll do audits. They'll take a picture. Well, if you fix it herpes sake, take another picture. Sometimes you end up with an audits but nothing but violations of them and nothing other than a little note fixed. You don't have to take pictures. If you do take pictures, take a picture when you fix it so that they believe me. It is very impressive if you're having an audit and the compliance officer looks at the audit and sees the machine guards off and the next picture shows the machines guards back on or they see something is broken and the next picture shows it's fixed or they got a busted electrical panel and the next picture is they fix you.

J. Larry Stine (33:12):
But you do wanna make certain that you document the corrective actions. I will tell you I had a case with one with a very large company where I ended up with 4,800 items and they were really good about documenting them and they did not document the fixing at all. And they, the safety people didn't inspection the operation people were supposed to be to doing the fixing and they did. So, alright, so we have a sample policy here that we've, we've pulled from somebody that has used us and we, we think this is really important to be prepared. This is think about what's going to happen before they show up so that when you have this, when they walk up to the door, you can whip this thing out and you've got it on there. You know what the policy is. Now we've written this one as the attorney, but as I said, you can use the lead person as your vice president for safety or corporate safety director.

J. Larry Stine (34:26):
Somebody who's got some knowledge, understands your rights cuz they really need to understand when they can push back and when they shouldn't and how to handle 'em. And then put their numbers there and tell them what's going on. Now if you got an act, if you got a a death and we handle way too many of them, but we do handle them, that's the time. A lot of times we're going to try to get ourselves there as quickly as possible cuz you're gonna report it within eight hours and OSHA will have somebody there. And I will tell you, I have gone to plants at two in the morning. I've gotten calls that, you know, hey, we got a fatality. I've gotten in my car, driven to the plant, conducted the investigation, figured out what's wrong and by the time the compliance officer shows up, we're ready to figure out and explain what happened and why it happened and come up with the best ways to present it.

J. Larry Stine (35:28):
Sometimes we can present it cuz we didn't do anything wrong and we can do that or we can present it in such a way to, to make it look as good as possible and have things already fixed quickly. But you need to do that. You need to have somebody ready to come and go. This plan, you put your name, put your telephone numbers down so you can call them. And whoever's on there needs to understand that they may, they need to leave their phone on cuz you may need to be able to call them at three o'clock in the morning. By the way, at four o'clock in the morning, all the lights are lined up. You're gonna really make traffic in Atlanta. Really great, Kathleen.

Kathleen J. Jennings (36:06):
Yeah, there's probably a lot less traffic at that point. So, oh,

J. Larry Stine (36:10):
I, I went someplace not too long ago at four o'clock in the morning and the thing I found out I didn't know at the time we're heading through Tucker, was they synced up all the lights. I made it all, I made like eight miles to the expressway without hitting a red light. I've never done that in my life, but

Kathleen J. Jennings (36:24):
Anyway, but we're not encouraging you to call Larry at four o'clock in the morning just so he can see the lights. But if you need to, you know that one of us can be available, right? This moves on. Larry had mentioned a bunch of don'ts in his story of the client who didn't listen to his legal advice. And so these are some of the don'ts that you need to make sure that you don't do in regard to dealing with any government inspector. Understand that managers and supervisors are basically agents of your company. So whatever they say is binding against the company. So you wanna make sure they don't say anything that could be used as an admission against the company, such as if the, if the manager or supervisors, you know, the ocean inspector or any kind of government agent says, well, you know, it looks like this has been a problem for a long time. And the manager says, yeah, it really has. You know, we keep meaning to fix it but we just haven't gotten around to it. That's an admission that can be used against the company later. So don't let anybody say that. It's, it's like any kind of proceeding like a court proceeding criminal proceeding. The less you say the less that can be used against you.

J. Larry Stine (37:49):
Right? Anything you say can be used against you in a court of law

Kathleen J. Jennings (37:53):
Absolutely. Or in any administrative proceeding. So less the better,

J. Larry Stine (38:00):
Right? I'm not gonna give you a Miranda warning, we're gonna give you a Miranda warning. We're telling you don't, don't make admissions against them. That's one reason I don't allow engineers. I still remember I was in a plant one time and the ocean compliance officer looked at a problem and the engineer proceeded to tell them how in the last two years they had been working trying to fix this problem. We got a willful out of the engineer. I mean he was very detailed. All the things they had tried, it's for two years they left the thing wrong. The other thing, the volunteer information it's very hard not to volunteer information. And a lot of people want to cooperate the way I tell clients to do it, and there's a reason I do it. I said, I want you to give the appearance of cooperation.

J. Larry Stine (38:53):
And the reason I keep, I finally, I finally landed on that because if you use the word cooperate with the government, oh my gosh, some of the employees will just go outta the way to pull documents to want to talk to them, explain things. And that's not the way you need to handle it. They are not there to help you. They are there to see if they can find violations and issue citations. They are not judged by on their job performance standards, by how many compliance inspections they found. They're judged on their performance evaluations by how successful they are in finding violations. They won't tell you that. And it's written in ways that's not a direct quota, but believe me, their managers are expecting them to find things and that is their job. And you may not forget it. That's just what they're there to do.

J. Larry Stine (39:48):
And they're not there to help you. They're there to find violations and issue citations and to penalize you. So when the voluntary information just don't do it, what we'll do is we respond to what the compliance officer, the government inspector asks for any nothing else. And if I don't like what he is asked for, sometimes I will not respond the first time. I will make the investigator ask me a second time because sometimes I have found that inspectors forgot what they asked me the first time and then forget it the second time and therefore I don't have to give it to them. They ask for it the second time I give it to them and I try to put it in the light best. And one of the things that we do in the background when they're asking for things and we're in the background looking at stuff, we're trying to figure out the way to put the information in the best light possible.

J. Larry Stine (40:46):
Sometimes that's not as good as we'd like, but we always wanna do it in a way that's best light possible. And you need to do the same thing. If we're not there, how am I gonna present this evidence to them with this documents or this stuff and the best light? I can't. So think about that, but but don't volunteer information because it can be used against you. And when you think it's very helpful, don't do it. What I would recommend, if you think some information's helpful and sometimes it is before you offer it to the compliance officers, go in the back room and talk about it and think, think it, just think it through before you do it. What we don't want you to do is all we do this, we do this, we do this without thinking about it. Cuz you don't always understand all the implications of thinking through. But go in the back room, talk about it. Hey, we think that this is a really great thing and then we'll figure out whether it is or not. And then at that point, only after you've talked about it, thought about the considerations and the implications, might you wanna do that? But never any information just during the investigation, very clear thinking about.

Kathleen J. Jennings (41:54):
Yeah. And a lot of times what what I like to do is if an inspector asks me for specific information while they're walking around, I ask them to just put the complete request in an email. That way we're all on the same page. They have it in writing, I have it in writing, and it's easier to figure out what they're looking for. So I'll do that. Don't make threats against employees who are interviewed by the inspector. When an inspector wants to interview employees, keep in mind that managers and supervisors, anybody who's in a position to make admissions against the company are allowed to have company council present for those interviews. So we can help out in those situations For non-supervisory, non-management employees council is not present and those employees, actually everybody who participates in any kind of inspection like this or interviews is protected from retaliation. So you don't wanna make threats against somebody who was interviewed by an inspector because that is a whole other problem that you don't wanna have to deal with.

J. Larry Stine (43:09):
Yeah. And while it's not on the list and, but I will say this, don't threaten the inspector <laugh>

Kathleen J. Jennings (43:17):
<Laugh>. Yeah, that seems obvious, but we probably do need to put that on the list. You're right.

J. Larry Stine (43:22):
Yeah. I had a compliance officer one time tell me that he went to a construction site and the supervisor at the time told him that the split toilet seat was there so that it wouldn't hit him in the head when he was drinking from the toilet. And he came back the next day and his, that supervisor's boss heard about it and they came back the next day. The supervisor was sitting in the corner wearing a dance hat and a dress. That was the way,

Kathleen J. Jennings (43:51):
No, that, that's the best way to deal with that either, but that's probably a topic for a a different webinar <laugh>. We've talked about allowing access beyond where the inspectors authorized and also allowing the inspector to just walk through your facility unaccompanied, don't do those things. As Larry pointed out, they're just there to find issues that they can use to issue a citation. And so don't let them just go anywhere without anybody following them and seeing what they're doing. That's just gonna lead to trouble.

J. Larry Stine (44:30):
Right. And keep 'em where they're authorized because yes, if I, if I've got it in one area and I don't let, I don't have to let them go in the other nine tenths of the plant, then I, I keep any of the violations on the nine 10th of plants from his vision. And it's very helpful that way to do that.

Kathleen J. Jennings (44:48):
And even sometimes you may even wanna plan a path of ingress and egress to the particular area that they do need to inspect to minimize the number of areas that they can see in plain sight because anything that they see in plain sight is also fair game for a citation.

J. Larry Stine (45:10):
It's a, that's a very good point, Kathleen, is plan, plan the route to the area you're going to do. I have literally taken umbrellas and walked outside in the pouring rain to walk around the outside the plant and have somebody open a back door to go into the area instead of walking them through the plant. We have done that before and you need to think about it if you've got a accent or event in an area in the back of the plant, is there a different way to get the compliance officers there without having to walk through the whole plant? So it's another thing you need to, to, to plan and, and take care of.

Kathleen J. Jennings (45:55):
Well, we've covered a lot of information and we are at the point of asking if anybody has any questions. I don't see any in the chat. So either Larry and I have done an incredibly good job in presenting this material or y'all are just afraid to type a question in the chat.

J. Larry Stine (46:21):
<Laugh>,

Kathleen J. Jennings (46:22):
I guess we've done an incredibly good job, right Larry

J. Larry Stine (46:25):
As always, Gavin <laugh> we're glad you came and really when you think about it, if you haven't made your plan on how you're gonna handle those inspections,

J. Larry Stine (46:40):
If the you leave here with nothing else, go back, sit down, write out a plan of what you are going to do before the inspector shows up at your doorstep because that's going to give you a lot more confidence in what you're doing, who's going to be there. And if you've got somebody who's going to be the designated person, give them an opportunity to get some training. So spend some time reading, figuring out how they're going to handle it and know their rights. Cuz that's the critical thing in handling these inspections is some compliance officers are very pushing and some are not.

Kathleen J. Jennings (47:21):
Is I I P P still the most popular violation,

J. Larry Stine (47:27):
The most pop, the most popular frankly, is the HazCom violations violations of 19 10, 1200. We get more HazCom violations than anything else. The other one we get a lot of now is lockout tagout. And then nineteen ten two twelve a one, which is the machine guard standard, still is in the top 10 of the of the of the violations. The other thing we see a lot now is personal protective equipment. Not doing the hazard. Oh, like Hasco, okay, thanks. Yeah. Employee training. Yeah. yeah, we get employed a lot of times now with the citations. You'll see almost two of 'em. Hey, you, you didn't do the lockout tagout and therefore ifso facto, you didn't do the train. Not necessarily true, but a lot of compliance officers kind of have this ipso facto rationale that if I have a violation, you didn't properly train them, therefore you didn't train them and it doesn't work. But we do get that citation all the time. And I'm lockout tagout seems to be the one we're dealing with the most lately. 

Kathleen J. Jennings (48:44):
Well that's, you know, if you don't do it, that's when you're likely to get hurt. So those tend to be injuries, I think when people aren't using those procedures. I think I also wanna point out that even though we've spent most of the time discussing OSHA inspections these points also apply to dealing with other government inspectors insofar as you still have your constitutional rights, your fourth amendment right, against an unlawful search and seizure, your fifth Amendment right against self-incrimination or incrimination of the company. So those rights exist whenever the government is, is coming after you and you need to be aware of them and be prepared for any kind of government agent. Really depends on the type of business that you're in. That will determine the type of government agents that will come into your facility. In addition to OSHA's Larry pointed out, wage and hour inspectors can be likely to show up and at least we'll give you a little bit of notice so you can have everything in order and, and have the proper person who is the face of the company dealing with them. But it's, it's important to have those ducks in a row, have that face of the company determined, have someone who is knowledgeable, who is calm, who is mature, and is not likely to threaten whichever inspector shows up. Because that is the face of the company. And that will go a long way toward the inspector's attitude, toward the inspection and towards your company.

J. Larry Stine (50:30):
Right? The the other thing in wage hour inspections, it's going back to know your rights, the wage hour, their rights, and the way they handle it depends on the type of inspection. For example, if you're just getting a general wage hour investigator, you're a private employer. If you tell 'em though, they can't come on the premises, they will not come on your premises. They will do a sidewalk inspection. If you're a farmer and they're coming in to do an investigation on H two A, you've consented by applying for the H two A to allow them on your property and you don't let them on your property, you just don't get employees anymore. So one's a very simple remedy. Not much mu much risk for a farmer throwing 'em off the site as tremendous risk. And that's where you need to know your rights times gets a little at that times gets a little complex and a little difficult for a lay layperson to understand the complexities of what they're looking at and what you're doing. And it can differ even inside the same agency.

Kathleen J. Jennings (51:35):
Don't we. Thank everybody for joining us for this webinar today. Like I said, please give us feedback if you have any, any suggestions as to future webinars. We would love to hear from you what kinds of topics you wanna hear about. So Larry Stine, thank you very much for being here and my name is Kathleen Jennings and if any of you want to follow up with us after the webinar, you can go to our firm's website, which is www.whimlaw.com. You can reach out to Larry by email, which is jls whim law.com, or myself, I am at kj j whim law.com. Or if you're feeling like actually talking to us, the main firm number is 4 0 4 3 6 5 0 9 0 0. Thank you.

Status: Available On-Demand

Webinar Date: Friday, August 05, 2022

Start Time: 12:00 PM

End Time: 12:45 PM

Venue: Zoom

Presenter(s): J. Larry Stine & Kathleen J. Jennings