The employer should then determine how to handle witnesses. The contractor has an absolute right to have a management representative or his attorney present for all OSHA interviews of supervisory employees and should never surrender this right. The compliance officer has the right to interview non-supervisory employees without a management representative. The employer has the right to refuse to permit OSHA to interview employees onsite; however, with certain exceptions, the employer will usually want to grant interviews of employees. Employees tend to be more truthful when interviewed onsite than at their own homes or offsite. Whenever possible, the employer should speak to witnesses first to explain that OSHA is going to interview them. In the case of a deposition, the employer should advise employees to listen to the question, and only answer with a "yes" or "no" if possible. The employer should tell the employee not to make up answers or speculate.

It is essential that the employer's last instruction be that the employee tell the absolute truth, coupled with an assurance that the employee will not be retaliated against for cooperating with OSHA. Once OSHA learns that the employee was instructed to tell the truth, they are more likely to believe your overall presentation of facts, and to consider you a "responsible employer." As to MSHA, an employer should seek to have counsel or management present for supervisor interviews, but should do so promptly and ensure its actions are reasonable.

Although not common, some construction contractors may perform work regulated by MSHA, most likely because they are an independent contractor performing service or construction at a mine. While not unlimited, MSHA has far broader powers than OSHA, and in most circumstances, the agency has the right to conduct inspections without warrants. MSHA is required to inspect mines at least four times per year and will generally be present with far greater frequency than OSHA at even high visibility construction sites. Moreover, emboldened by MINER and other changes, individual investigations have more ability to increase penalties, and of course, unlike OSHA compliance officers, they may also assert claims against individuals. The 1979 Memorandum of Understanding Between OSHA and MSHA, accessible at both http://www.osha.gov/ and http://www.msha.gov/, presents a good starting point for a discussion of where OSHA coverage ends and MSHA coverage begins. The bottom-line is that the construction employer embroiled with MSHA should carefully determine whether MSHA controls the company's work, and if so, proceed more carefully in efforts to control the inspection process.

Throughout the OSHA inspection, the contractor should be mindful that OSHA can cite employers on a multi-employer site under various theories. OSHA may cite the employer of the exposed employees, the employer who supervised employees in danger, the employer who created a hazard or controlled the site, the employer who controlled a hazard, the employer who abated a hazard or all of the above parties. Contractors should recognize that various contractors may have different interests and positions. Employers should also be prepared to assert that a violation was a result of "unpreventable employee misconduct." This defense requires that the employer show a published and well-communicated rule, a disciplinary program enforcing safety rules and proof that employees have been disciplined for safety violations in the past. While the disciplinary actions should not be for violation of the rule in question, this defense typically fails when an employer only has proof of "oral" or casual warnings. OSHA administrative law judges look for written warnings, suspensions and discharges. Therefore, as part of a contractor's advance planning, he should ensure that his supervisors actively provide written warnings and otherwise dutifully enforce safety rules.

Especially in the case of employee fatalities, an employer should avoid creating written statements or otherwise arriving at "conclusions" at an early stage, which may later bind the contractor. Likewise, employers should exercise care in the preparation of accident or incident investigation reports to avoid arriving too soon at conclusions of employee failures or other problems. Finally, OSHA automatically involves an OSHA investigator trained in criminal fact gathering when they believe possible "willful" citations may be involved in a fatality, and in those circumstances, more control is required.

While each step of an appeal can be increasingly costly, contractors typically achieve a better resolution through contests, negotiation and even trial. In determining a strategy, the contractor should consider the three-year risk of "repeat" citations and the effect of citations on future bids or on ancillary litigation.

Once the citations are issued, an employer should always attend an OSHA Informal Conference. While OSHA obviously seeks to avoid contest, they will not retaliate against an employer for filing a contest, especially when the employer assures OSHA that he will do whatever is necessary to continue to guarantee a safe workplace for employees regardless of the legal outcome. An attorney can be useful to analyze items because OSHA Administrative Law Judges often take a more restrictive view of the OSHAct, and OSHA's counsel may be more willing to negotiate to avoid time-consuming hearings. In MSHA proceedings, especially under the enhanced MINER approach, skilled handling of the investigation is even more important than in an OSHA inspection.

Employers who follow these basic rules should be able to better manage and control inspections, limit penalties and more importantly, reduce hazards.

Howard Mavity is an attorney with the Atlanta office of Fisher & Phillips LLP. For additional information or questions, you may contact the him at 404.231.1400. Fisher & Phillips LLP exclusively represents management in labor, employment, benefit and immigration matters.

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