E1: OSHA Inspections

In the inaugural episode of the Cover Your Assets Podcast, attorney Kathleen Jennings discusses safety in the workplace and how to handle Occupational Safety and Health Administration (OSHA) inspections in a professional manner.

Podcast Episode Transcript

Narrator (00:03):
You are listening to Cover Your Assets, a podcast that discusses the timely and significant legal issues faced by employers. Kathleen Jennings is an attorney who has over 30 years of experience in advising employers as to their legal responsibilities and has written extensively about employment law in our popular Cover, your Assets blog. If your business has employees you cannot afford not to have your assets covered.

Thom Jennings (00:32):
Hello everyone and welcome to the inaugural episode of Cover Your Assets. And this is a podcast that is a companion piece to the cover Your Assets blog that is written by someone I know very well. My sister Kathleen Jenn. Kathleen why don't we start this off by you telling us a little bit about your legal background, what the impetus was for the cover your assets written blog, and then we will shift right into our topic of the day, which is, I believe OSHA inspections.

Kathleen Jennings (01:08):
Well, Thom, thank you very much and it is a pleasure to be here with you. My favorite brother doing a podcast as we've talked about doing for how long's it been now months, years,

Thom Jennings (01:21):
Decades, millenniums, I don't know. We've been talking about it for quite some time.

Kathleen Jennings (01:26):
We have been talking about it, so I'm glad we finally got around to doing it. I am an attorney, I'm licensed in Georgia and New York. I went to New York University School of Law on for law school and I went to Cornell University undergrad and I've practiced labor employment law on management side, which means I represent companies that have issues concerning their employees, any issues that could be anything from wage and hour to safety, to sexual harassment, discrimination, any of those things.

Thom Jennings (02:04):
So I mean, the reality is to cover your assets blog and of course your area of expertise in when it comes to law, this, this is something that would be targeted towards whom

Kathleen Jennings (02:16):
It's targeted toward. Businesses that wanna get a little information about the laws that apply to them are just best practices with regard to handling employee issues. I like writing and I thought that a blog would be a great platform for me to give some information to people out there about the latest cases or developments in the law. Something like the OSHA emergency temporary standard is something that I've been writing about a lot and Covid, as we all know, has presented a lot of new and different issues for employers. So I've done a lot of writing on that as well.

Thom Jennings (03:01):
And as much as the name cover your assets is kind of meant to be a little bit, I don't know what you call it, kind of kind of funny tongue in cheek. The reality is, is that as an employer, if you do have an issue related to employee safety or discrimination complaints, anything like that, it could make the difference between profitability, staying in business or even I guess from a public relations standpoint, these these are the types of things that you really have to pay attention to because they could cause serious damage to your assets and or your business. Correct.

Kathleen Jennings (03:35):
Absolutely. And let's just backtrack and let me give credit where credit is due. The name cover your assets was the brainchild of my favorite brother Thom Jennings. So I thank you very much for that. And you are absolutely correct. A, an employment discrimination or wage in hour case or any kind of litigation in involving employees can be very expensive. Even if you win, it's expensive and if you lose it's, it's even worse and absolutely can have a devastating impact on your company's reputation, on your ability to hire new employees, even especially now where the job market is so tight and most of all, you know, your assets are your employees, they are your biggest asset, and if you don't treat them right, you're gonna have a hard time finding and keeping good ones.

Thom Jennings (04:37):
And ultimately this is, is really about proactivity because the reactivity it, that's, that's at if you, if I feel like if you come in and there's something that has happened, now you're in reaction mode, which I believe you and I were talking about. You just had a case where you went to a place in Washington, DC where they had had an accident. So now you're dealing with OSHA with that. But the reality is, is that even as an attorney, you're advising clients on how to be proactive. Is that correct?

Kathleen Jennings (05:06):
Absolutely. Cuz proactive in the long run should save you money and also protect you against accidents, litigation, and just other issues like poor morale too much turnover, any of those things. So the proactive employers, the employer that truly does cover their assets better than the reactive employer. Now sometimes things happen then and through your best efforts they happen and you couldn't have stopped it. And sometimes we have to be reactive on those things, but it's good to plan ahead, sort of plan for the worst hope for the best.

Thom Jennings (05:47):
All right, well here's a, here's a question. And so I own a business and OSHA has said that they're gonna come and inspect. I'm doing everything correctly. I shouldn't have to worry about it. Why would I need an attorney? I mean, if I'm doing everything right,

Kathleen Jennings (06:02):
Well, first of all, Thomkeep in mind that OSHA doesn't normally tell you when they show up one day, they ma may just show up at your door because it's either a programmed inspection of your particular industry, or more likely it's a complaint from an employee that is given to osha. They come in to inspect the complaint or it can be a workplace incident, an accident, an injury, or hopefully not a fatality. And they're gonna come in and they're going to investigate that, but they're not gonna call you up in advance and say, Hey, I'm your ocean inspector, I'm gonna show up and I inspect your plant, so just get ready for me. They don't do that. They, they wanna show up. They want the element of surprise in their favor. So why do you need an attorney? Because you have a right to an attorney. Every company has a right to an attorney. And unfortunately too many companies don't avail themselves of that. Right. And they think that they can just talk their way out of any kind of citations that the ocean Specter may issue or that the area office may issue. And the reality is that OSHA inspectors, some of them will take advantage of employers that don't have council present and they may expand the inspection beyond what they have probable cause to inspect.

Thom Jennings (07:31):
So at what point do you come in on the process? You said that the OSHA inspector just shows up unannounced. I mean, I was in the restaurant industry for many years. I mean, I guess it probably a similar situation with the health inspector to make sure the temps are right on all your food and all that kind of stuff. So are you called as soon as the Ocean Inspector shows up and then do they have to wait for the inspection or do they just have the right to go in and do what they have to do?

Kathleen Jennings (07:56):
Normally, the ocean, I, I'll get called when the Ocean Inspector shows up, and if an attorney can get there in a reasonable amount of time, then they'll have to wait for the attorney to get there.

Thom Jennings (08:09):
So let's, you know, let's finish up because I think ultimately when it comes to these types of things, ocean inspections and we've, we've kind of given a lot of just information. Can you gimme a case study one that kind of comes to mind, that that maybe will show people the proactive side and or the reactive side, but if nothing else, just kind of the importance of having legal counsel involved in the process and how maybe you saved a company's assets by being there.

Kathleen Jennings (08:37):
Well, Thom, have I ever told you about the first ocean inspection that I ever attended?

Thom Jennings (08:43):
Yeah. I think it was about an hour ago when we were preparing for the show, and I was hoping that it would just come off as very simultaneous and like well, well, well, no, not simultaneous. What's the word? Spontaneous.

Kathleen Jennings (08:56):
Spontaneous,

Thom Jennings (08:56):
Yes. But, but here we are. Yes. So I, I don't know if I said no, I'd never heard, but you know, you are an attorney, so you kind of backed me into a corner. So, you know, the answer is yes, I heard about it about an hour ago, which is why I threw that softball question to you.

Kathleen Jennings (09:10):
But I didn't actually tell you about the inspection, did I?

Thom Jennings (09:14):
Well, you told me a little bit about the inspection. Now see, now this is why you need an attorney because you notice how, even though, but there's a little bit of this sort of brother sister thing, so you know me. So you, you're backing me into a corner.

Kathleen Jennings (09:26):
Yes, I am <laugh>. It's what

Thom Jennings (09:28):
I do. It's what you do. It's what I do. All right, well, go ahead. Why don't you share the, the full story of the first OSHA inspection

Kathleen Jennings (09:39):
That I ever attended. That

Thom Jennings (09:40):
You ever attended? Yes. And did I ever tell you about the first ocean inspection that I ever attended?

Kathleen Jennings (09:44):
You haven't attended any. That's

Thom Jennings (09:46):
True. <Laugh>. So you caught me on that one. <Laugh>. So see,

Kathleen Jennings (09:51):
I'm not gonna talk about,

Thom Jennings (09:51):
There you go. All right. So go ahead. Let's get to that first ocean inspection.

Kathleen Jennings (09:55):
Okay, well let's talk about the first ocean spec inspection that I attended because it happened, I don't even know how many years ago it was, but I was called in because an ocean inspector had shown up on a complaint issue and one of my colleagues had gotten into I guess an argument with him and threw him out. So then the ocean inspector came back with a warrant and rather than St send, the colleague that had argued with him back down, I was sent over to interact with this ocean inspector who happened to be fresh out of the Marines where he had been a drill sergeant. So he was feeling pretty frisky and he had this warrant and he decided that he was going to inspect the entire facility even though he didn't really have a reason to, but he had a warrant, so he couldn't stop him at that point. So this inspection, he walked around with me for 14 hours looking at everything cuz he thought he was gonna wear me down and he didn't. And then finally we agreed upon a time when we would finish because I get a little cranky when I don't have sleep.

Thom Jennings (11:19):
<Laugh>. Yeah, I I have a quick question. So, sure. You mentioned the fact that the ocean inspector had a warrant to be able to inspect the entire facility. So without a warrant, how much leeway does an OSHA inspector have to inspect an a facility? And at what point could you advise your client or your client could say, no, you can't inspect this portion of the operation without a warrant?

Kathleen Jennings (11:43):
Normally the ocean inspector can inspect what he or she has probable cause to inspect, depending upon the impetus or the inspection. So if it's a complaint inspection, then they're gonna look, they, they have probable cause to inspect the area in which the complaint arose. Or if there's an accident, they have probable cause to inspect the area where the accident occurred, to get a wall to wall, which is what we call the inspection of the whole facility. Some of those are programmed inspections, which means they rotate among different companies in the industry and, and look at the entire facility wall to wall. Some, some industries get that more than others because there's a lot of safety issues. So on something like a complaint investigation, they shouldn't have probable cause to inspect the entire facility wall to wall. And what Ocean inspectors will also do is keep in mind when they come into your facility, not only are they inspecting what is arising or out of or close to the complaint or the accident, anything they see in plain sight, they can cite you for if there's a hazard that you haven't done anything about.

Kathleen Jennings (13:02):
So you wanna limit their access to those kinds of things and you wanna clean things up before they get there if you can.

Thom Jennings (13:09):
So what happened with that particular, you said you got into, was it 14 hour inspection and I mean, how, what was the end result? And again, what was your role in terms of maybe mitigating circumstances in the favor of the employer or just maybe making it a little bit better for them?

Kathleen Jennings (13:26):
Well, he and I reached an agreement as to when he would leave and come back the next day. That's what he wanted to do. And then we got to that point and he said he was gonna continue inspecting and I looked him in the eye and I said, you are a Marine, are you not? And he said, yes. And I said, well, isn't your honor important as a Marine? He said, yes. I said, well, you gave me your word that you were gonna be out of here at this particular time, so are you telling me that you are not a man of your word and not a man of honor? So he left. In the meantime, folks in my office were going to court to quash the warrant. So when he came back the next day, I had the pleasure of telling him that he couldn't come back in.

Thom Jennings (14:15):
Oh, nice. Well, and again, I, like you said, I mean it sometimes giving an employer the benefit of the doubt, there may be a violation that they're not entirely aware of, but I think that maybe speaks to the importance of, as an employer, you really have to be aware of the OSHA rules and regulations and have some internal controls to make sure that you're not committing any violations. And do you consult with clients on that as well? Do you ever go through and explain to them the types of things that they need to be doing so that they're in compliance?

Kathleen Jennings (14:47):
Absolutely. I've done inspections, a facility, facility looking for the kinds of things that OSHA might cite them for. That way they can clean them up and not get cited by osha if OSHA does in fact show up.

Thom Jennings (15:02):
All right. And let's, you know, let's, let's wrap this up cuz I think we've had some, some great information. And I know at the beginning of the podcast we mentioned that much of this was related to covid, but even beyond that, I think Covid may have just drawn attention to the necessity of making sure that you're in compliance with every laws and that they change. So in terms of covid, what are some of the challenges that employers maybe need to keep an eye out for and some things that you've dealt with in regard to the pandemic and compliance with the different rules and regulations that seem to change every minute?

Kathleen Jennings (15:39):
Well, OSHA will still come out and what they want employers to do is follow the guidance that is on OSHA's webpage. Most of it is based upon c d C guidance. Up until a couple weeks ago, OSHA had issued an emergency temporary standard that applied to employers with a hundred or more employees that is now gone. It was stayed by the US Supreme Court and then the administration withdrew the ET ets, which is what we call it. So that's no longer there. But OSHA can still enforce hazards related to covid under its general duty clause, which is sort of a catchall that they use when there's not a specific section in OSHA law that covers a particular hazard. So it's important to be familiar with their guidance. The guidance targets different industries and follow that guidance. It has to do with physical distancing, mask wearing, things like that.

Kathleen Jennings (16:45):
What we found early in the pandemic was that some employees who are also familiar that OSHA's out there enforcing this law would call in complaints, unfortunately with the hope that it would bring in an ocean inspector and maybe shut down the plant for a day so they could get a day off. And that was not very successful. Cause during Covid, a lot of ocean inspectors did not do in person inspections, but they're doing those now. So if your employees are aware of these standards, that means they're aware, they're aware that they can call OSHA and make a complaint and their identity is never disclosed and they're protected from retaliation. So it's important to, to follow these procedures, follow the guidance so that if OSHA does show up, you can show them all the steps that you're taking to protect your employees from infection by covid.

Thom Jennings (17:41):
Excellent. All right, so let's wrap this up. How about some contact information? I know we'll put some stuff in the, in the show notes so that people can get in touch with you. But how can people get in touch with you if they have further questions or maybe they want to retain your services?

Kathleen Jennings (17:57):
People can go to the cover Your Assets blog. They can contact me by my email, which is probably the easiest, KJ j@wimlaw.com.

Thom Jennings (18:11):
All right. And of course you can subscribe to the written blog as well and you'll be able to subscribe to the podcast. And if you find something in here, please don't forget to subscribe and share. And if you've got some ideas, some topics and whatnot, I'm sure that you'd be happy to address 'em and we can go from there.

Kathleen Jennings (18:30):
Will Thom, have you subscribed to the written blog yet

Thom Jennings (18:34):
On the Advice of Counsel? I will plead my Fifth Amendment. Is that, is that how it goes? Something like that. So I will though, I will though, because I know you're gonna ask me again. And if I say no, then it will be very awkward. So you know that you will have one more subscriber before the end of this show and it will be okay. It will be your favorite brother, which is in, in fact, thanks. It's in fact me. But anyhow this was a great time. Hopefully people enjoy it. I know, I certainly enjoyed it. I'm just so you know, that I'm in Western New York, near Buffalo, New York, and of course you are right now recording from the lovely state of Georgia.

Kathleen Jennings (19:10):
I am

Thom Jennings (19:11):
So, so great.

Kathleen Jennings (19:12):
Hopefully at some point, you know, you can visit down here because Thom, it's warmer in Georgia than it is in Western Europe, York, this time of year.

Thom Jennings (19:21):
<Laugh>. All right, duly noted. But again, everybody, thank you so much for listening to the inaugural episode of the Cover Your Assets podcast and what a fantastic name that is. Isn't it

Kathleen Jennings (19:34):
Like a great name, Thom? Whoever came up with that is a genius.

Thom Jennings (19:39):
Alright, fantastic. Alright, so next time, this is your host, ThomJenn, and of course with my expert sister Kathleen.

Podcast Disclaimer

The Cover Your Assets-The Labor and Employment Law Podcast is produced by Thom Jennings of the Caronia Media Group. For more details, you can contact him at thom@caroniamediagroup.com.

The information provided in this podcast is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this podcast or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings. The opinions expressed at or through this site are the opinions of the individual hosts and guests.