By: Mark A. Lies, II
As anyone who has ever experienced an OSHA inspection is well aware, a key element is the agency’s interviews of employees by the compliance officers from the U.S. Occupational Safety and Health Administration (OSHA). It is generally recognized that a majority of OSHA citations are based upon OSHA interviews of management and hourly employees. Unfortunately, a lot of confusion has occurred over the respective rights of OSHA, the employer and the employees. This article will attempt to shed some light on this topic.
During any inspection, the compliance officer will request employee interviews (both management and non-management employees) in order to gather facts as to possible violations of agency regulations. Employers often fail to advise employees of their rights during such interviews and these rights are never exercised. If the employee gives inaccurate, incomplete or confusing responses, these statements can be the basis for civil citations with monetary penalties, or worse, criminal liability. We have prepared a summary sheet that can be used to prepare employees for OSHA interviews.
The general rights of the various parties are as follows:
Employee Rights – Every Employee:
- Has a right to a private one-on-one interview with the compliance officer which is confidential and is considered “protected activity.” The employee cannot suffer any “adverse action” from the employer for exercising this right. The compliance officer cannot disclose the contents of the interview.
- Has a right to refuse to be interviewed by the compliance officer. In other words, an employee cannot be forced to have a private one-on-one interview. These interviews are totally voluntary. If the employee declines to be interviewed (and the employee need not give any reason for the decision) the agency will have to obtain a subpoena to require the interview. If the agency obtains a subpoena, the employee has the full scope of rights to respond, including the right to counsel.
- Has a right to decline to have a one-on-one private interview and the right to have a person of their choice attend the interview and, if the compliance officer refuses to allow this person to attend, decline to be interviewed. Some employees feel comfortable being interviewed if they have another person present during the interview. Again, if the compliance officer refuses to allow this other person to attend, the employee can decline the interview for no reason.
- Has a right to end the interview at any time for any reason. Since the interview is completely voluntary (unless OSHA subpoenaed the employee) the employee can end the interview at any time and can leave without any explanation.
- Has a right to refuse to sign a statement, be tape recorded or photographed.
- Has the right to refuse to provide any private contact information, such as home address and telephone number.
- Has the right to require the interview to occur at the workplace.
- The compliance officer has the right to interview the employee in private, if the employee consents.
- Has a right to have truthful responses to their questions.
- Has the right to inform its employees of their rights during the inspection.
- Must allow the employee to be interviewed by OSHA if the employee consents.
- Has the right to participate in non-private employee interviews (those attended by a third party, such as a union representative) and, if the compliance officer refuses, require that the interviews occur on non-paid work time.
- Has the right to attend interviews of employer management representatives since they are agents of the employer.
- Has the right to end the interviews if the interviews become disruptive, that is, unreasonably interfere with ongoing work, or become confrontational, in which case the employer should consult legal counsel regarding the termination of the inspection.
Employee Right to Legal Counsel
As noted, any employee can decline a private interview unless the employee is allowed to have a person of their choice attend the interview. This also means that the employee can select legal counsel as their person of choice. Remember, as citizens, we have a fundamental right to representation by counsel in any administrative or judicial proceeding. Additionally, in most jurisdictions, the employer has an obligation to defend its employees if they are faced with liability for their acts that may have occurred within the scope and course of their employment. In other words, the right to legal counsel (if requested) is unquestionable. If OSHA refuses this request, the employee can decline to be interviewed.
Employee Potential Criminal Liability
Another significant issue which may arise in an OSHA inspection after a serious accident involving a fatality or multiple injuries is potential criminal liability for the employer and individual employees. A basic right under the United States and state constitutions is against self-incrimination (under the Fifth Amendment).
Unfortunately, when the inspection occurs, it is impossible to determine whether criminal charges may result, months or years later, by which time an employee may have incriminated him/herself in the OSHA interviews and exposed themselves to criminal liability. For this reason, it is extremely important that legal counsel be consulted for the OSHA interviews.
No Criminal Miranda Warnings
Another potential problem which warrants legal counsel is the fact that the OSHA compliance officer is not required to give the employee the Miranda warnings, which inform employees of their rights against self-incrimination (among other rights). Recall that an OSHA compliance officer is not a police officer and the employee has not been placed under arrest; but the agency has the ability to impose criminal liability, such that the employer is cautioned to should engage legal counsel to evaluate the situation and the employee’s rights.
OSHA Objections to Legal Counsel
Unfortunately, in many inspections, OSHA objects to the employee having another person present, including legal counsel. In those instances where OSHA agrees to allow the employee to have legal counsel, the agency objects to allowing the employee to utilize the employer’s attorney who has been provided at no cost to the employee. OSHA claims that such attorney may have a conflict-of-interest representing the employer and also representing the employee in the interview. It should be noted that it is not OSHA’s right to object to any potential conflict‑of‑interest. Rather, it is the employee’s right to accept the representation (provided, of course, that the attorney has discussed potential conflicts of interest with the employee)
OSHA also objects to the employer’s legal counsel provided at no cost because the employee may be exposed to retaliation by the employer for what is said in the interview. This argument is likewise without foundation because the employee is protected from retaliation under Section 11(c) of the Act for participating in the interview or inspection with OSHA. Thus, it is both inappropriate and unfair for the agency to object to the presence of legal counsel provided at no expense by the employer in an interview where an employee could face potential civil or criminal liability arising out of an accident and which will force the employee to retain other legal counsel at the employee’s expense if the employee wishes to exercise these rights. Indeed, in many cases, an employee cannot afford to retain his own counsel and thus is effectively denied legal counsel.
Language Barrier Issues
Because of the diverse nature of many workplaces, an issue arises concerning language barriers between the employee being interviewed and the compliance officer. It is critical that a competent interpreter be made available by the employer to ensure that the employee being interviewed can understand the questions and respond accurately and truthfully. The employer frequently will make available a co-employee who is bilingual to perform this role. OSHA may attempt to discourage this other employee from participating in the interview by claiming that the compliance officer is bilingual and can interpret. As we have seen above, the employee who is being interviewed has the right to refuse to be interviewed if the employee is denied the interpreter. In addition, the employer should be cautious about accepting an interpreter offered by OSHA since there is the potential for this interpreter to pose the questions to the employee in a technical manner which the employee may find confusing. In addition, there have been instances where the OSHA interpreter does not speak the particular dialect of the language of the interviewed employee, in which case there is further opportunity for confusion. Unfortunately, when an employee gives responses that are confused or incomplete because the employee cannot understand the questions, this provides an opportunity for citations to be issued to the employer on the grounds that employees are not properly trained and do not understand the employer’s safety and health programs.
Please contact the author or your Seyfarth attorney with any questions you may have regarding this topic.