by James W. Ward, J.D.; Employment Law Subject Matter Expert/Legal Writer and Editor, CalChamber
An inspector from the California Division of Occupational Safety and Health (Cal/OSHA) showing up at your worksite can be surprising and even intimidating — especially if you’re not sure what to expect. But understanding the inspection process and preparing in advance can make a significant difference.
Cal/OSHA has broad authority to conduct inspections of employers’ worksites after a workplace accident, receiving a safety complaint or if Cal/OSHA has some other reason to believe that the workplace isn’t safe. Employers who are familiar with Cal/OSHA inspection procedures can efficiently meet their obligations, protect their rights during the inspection and minimize disruptions to the workplace.
Here’s an overview of the Cal/OSHA inspection process — from the beginning to the closing conference — with some practical considerations to help prepare employers in case Cal/OSHA knocks on their doors.
Cal/OSHA can begin an inspection, pursuant to Labor Code section 6309(a), if it has reason to believe that a place of employment is “not safe or is injurious to the welfare of an employee.” This could happen when:
Cal/OSHA also conducts targeted inspections of high-hazard industries with higher rates of injuries and illnesses, maintaining a high-hazard industry list adjusted periodically based on injury and illness statistics.
After receiving a complaint alleging a nonserious violation, Cal/OSHA has 14 days to begin an investigation. If the complaint alleges a serious violation, then Cal/OSHA has three days to begin an investigation. Under Labor Code section 6309(c), the name of the person who filed the complaint is kept confidential unless they request otherwise.
Cal/OSHA has broad authority to collect information and evidence when investigating complaints and conducting inspections. Under Labor Code section 6314, Cal/OSHA may:
During the Cal/OSHA inspection process, both the employer and employee have rights and obligations. Employers need to be aware so they can safeguard their own rights, satisfy their obligations and avoid violating employees’ rights, which can result in retaliation or discrimination claims.
Employees have the right to file a complaint as well as the right to not be retaliated or discriminated against. Employees also have the right to participate in the inspection, including the opening conference, walkaround inspection and interviews.
Employers have the right to demand inspection warrants. Cal/OSHA typically asks for the employer’s consent to inspect the workplace. The employer, however, may refuse to consent until the inspector has a warrant for the inspection. In consultation with their legal counsel, employers should carefully consider their warrant strategy, as there are potential risks and benefits with either course of action.
Employers also have the right to protect their trade secrets and confidential information. During the inspection, they may accompany the inspector and participate in the interview of supervisory employees. Lastly, employers may challenge citations.
Cal/OSHA inspections generally follow a process outlined in the Labor Code and the Cal/OSHA Policy and Procedure Manual, though inspections may vary based on the circumstances.
Cal/OSHA will first initiate contact with the employer. Typically, Cal/OSHA doesn’t provide advance notice of an inspection. It makes three exceptions, however, and will provide advance notice in the following situations:
Outside of these circumstances, most employers will first hear about the inspection when the Cal/OSHA inspector knocks on their door. The inspector will display their credentials and seek consent to conduct the inspection, which begins the opening conference.
Employee representatives may participate in the opening conference.
The inspector will begin by:
Employers should use the opening conference as an opportunity to understand the nature and scope of the inspection. Based on the inspector-provided details, an employer will be able to identify the personnel that should be involved and the documents that may be relevant. The employer can also explain its document production and witness interview protocols to the inspector.
During the opening conference, the inspector usually requests several documents to review, which may include:
When possible, employers should insist on getting written requests for documents. Before producing documents, employers should review them for privileged or confidential business information.
Next, the inspector will conduct a walkaround inspection of the facility looking for regulation violations. The inspection may be a partial inspection, limited to the area defined by the inspection’s stated reasons. If, however, the inspector learns something during the opening conference or the walkaround that suggests the need for a comprehensive inspection, they may expand the scope to inspect the entire workplace. If possible, the employer should restrict the inspector’s access to the areas specifically designated for inspection.
Employers should always accompany the inspector. Additionally, an authorized employee representative can accompany the inspector. Per the Cal/OSHA inspection policy and manual, the inspector must make every effort to invite the employee representative to participate in the walkaround. If no authorized employee representative is available, the inspector must consult with a reasonable number of the employer's employees concerning matters of workplace safety and health.
During an inspection, the inspector may take pictures, examine machinery, conduct tests, interview employees and observe working situations. The employer’s personnel accompanying the inspector may be asked to explain or answer questions about the work process.
Employers should take detailed notes of the inspection.
During the inspection, the Cal/OSHA inspector will likely interview employees. Employees and the employer, or their representatives, have the right to talk to the inspector in private if they prefer. To minimize workplace disruptions, employers should, to the extent possible, arrange to have interviews in a pre-selected office or conference room.
Rights and rules apply to employee interviews, depending on whether the inspector is interviewing a supervisory/management employee or a nonsupervisory employee.
During management interviews, the employer has the right to be present. This right belongs to the employer, not the witness. The supervisor’s knowledge is attributed to the employer, so employers should prepare management witnesses and avoid impromptu management interviews.
When the inspector interviews a nonsupervisory employee, the employee may have a union representative present. That right belongs to the employee. Employers may not coerce, intimidate or discriminate against an employee that agrees to speak to a Cal/OSHA inspector.
The inspector may ask to record the interviews, take interview notes, ask witnesses to write statements, or ask them to review and sign the inspector’s notes. The inspector will also ask about documents such as the employer’s IIPP.
Employees may decline to speak to the inspector. In that case, Cal/OSHA may consider issuing an administrative subpoena, but this isn’t common.
Depending on the circumstances, the inspector may schedule follow-up inspections, interviews and/or document requests.
Prior to leaving the worksite, Cal/OSHA inspectors will conduct an exit conference with the employer and employee representatives. At that time, they will:
If the Cal/OSHA inspector does not issue any citations, the exit conference ends, and nothing else follows. If the inspection results in a citation or other action, such as a Special Order, Cal/OSHA schedules a formal closing conference.
At the closing conference, the inspector will:
Employers can use the closing conference to correct mistakes or obvious errors, if possible, identify alleged violations that have already been corrected and request time to offer additional information if it is relevant and helpful. Employers may also ask any clarifying questions about the alleged violations, citation classifications and penalties. During the closing conference, employers should take detailed notes.
If the inspector finds a violation, Cal/OSHA may issue any of the following:
If Cal/OSHA issues a citation or other enforcement document, employers are required to:
Citations may have a wide range of penalties, depending on the safety standard at issue and what the inspector finds in the workplace. For example, nonserious violations, including posting and recordkeeping violations, start at a proposed minimum of $500 but can reach a maximum of $16,285. Repeat or willful violations, however, carry much higher penalties, starting at $11,632 and reaching a maximum of $162,851. Cal/OSHA has some discretion to adjust penalties based on the size of the business, any history of past violations and the good faith of the employer, which includes consideration of the employer’s safety program and efforts to comply with Cal/OSHA safety standards.
Employers may contest the enforcement action by filing an appeal with the Occupational Safety and Health Appeals Board within 15 working days of receiving a citation. Because the time allotted is only 15 working days, employers should start the decision-making process immediately upon receiving the citation or order and consider the following factors:
Employers may also request an informal conference with Cal/OSHA’s district manager and the inspector responsible for the citation to try to resolve any disputes and avoid the need for an appeal. District managers must hold the conference no more than 10 working days after issuing a citation. If the employer has already filed an appeal, the conference can take place any time up to the hearing date. The district manager can potentially amend or withdraw citations, depending on the circumstances.
While employers generally don’t expect a Cal/OSHA safety inspector to knock on their door, they should proactively develop policies and procedures to be prepared for it. In doing so, employers should consider the following:
This is only a general framework for Cal/OSHA inspections. The process may vary depending on the employer’s worksite, applicable industry specific standards and other circumstances. Employers should consult with legal counsel if they have questions about any specific facet of Cal/OSHA inspections or the appeals process.