Panel upholds judge’s decision — Emphasizes importance of scrutinizing credentials

OSHA officer had the authority to conduct inspection, even with expired credential card

Posted February 28, 2018

A case decided by Occupational Safety and Health Review Commission (OSHRC) highlights the importance of employers scrutinizing the credentials of the OSHA compliance officers (COs) who ask to come onsite and conduct an inspection. According to court documents, an OSHA inspection of a general contractor’s worksite in 2012 resulted in seven serious citations and two repeat citations with a total proposed penalty of $32,800. The general contractor contested the violations before an administrative law judge (ALJ) who upheld three of the seven serious citations and both repeat citations, with an assessed total penalty of $24,400.

The general contractor appealed the ALJ’s decision to an OSHRC three-judge panel, which affirmed the ALJ’s decision.

The issue before the court was whether the ALJ should have dismissed the case against the general contractor because the OSHA CO who conducted the inspection presented company officials with an expired credential card.

Background

The facts presented before the court show that in July 2012, an OSHA CO, responding to an employee complaint, arrived at the general contractor’s worksite to conduct an inspection. He presented his credential card to one of the contractor’s foremen, who allowed the officer onsite and agreed to the inspection. After the CO had left, the office’s credential card was found at the worksite. The company co-owner noticed the expiration date on the card was almost three weeks before the inspection.

At some point after the inspection, the CO obtained an updated credential card.

CO authority to inspect

Section 8(a) of the Occupational Safety and Health Act requires OSHA compliance officers to present appropriate credentials to the owner, operator, or agent in charge at a worksite. However, the OSHRC panel said that even with the expired credentials, the CO was properly authorized to enter the worksite to conduct the inspection. They explained, “The Act as well as the regulations establish that a CO’s authority to inspect is delegated from the Secretary through OSHA, and derives from this delegation and employment as a CO for the Department of Labor, not from the credential card. In other words, the credential card merely functions to inform an employer that OSHA has delegated inspection authority to the CO — the card itself does not grant that authority.”

Purpose of presenting credentials

The whole purpose of presenting credentials, according to the panel, is to provide an employer with the means to ensure that the person seeking to inspect their worksite is, in fact, an OSHA compliance officer. It allows the employer an opportunity to scrutinize the credential card and determine if the card is “appropriate.” While an expired card could cause an employer to reasonably question whether the person presenting the card has the authority to inspect, the employer could contact the local OSHA office for verification, or even refuse entry. This would require OSHA to send an officer with an unexpired card.

The employer in this case had an opportunity to scrutinize the OSHA officer’s credential card or refuse entry, but did not do so. Therefore, the commissioners concluded that the employer consented to the OSHA inspection, which is similar to an employer who consents to an inspection of private property without asking for a warrant.

Protect yourself from unauthorized entry

In the end, the panel warned that “the only way employers can protect themselves from such a threat [of an unauthorized person attempting entry to their property] is to demand and scrutinize credentials when someone shows up at their doorstep to initiate an OSHA inspection — if the employer fails to make use of this tool conferred by the Act, its purpose cannot be effectuated.”


OSHA Compliance for Construction Activities ManualJ. J. Keller's OSHA Compliance for Construction Activities Manual explains complex Part 1926 regs in easy-to-understand language.

 

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