- Never Lie. Beyond the moral and ethical aspects of honesty is a practical one, if you get caught lying during deposition or as a witness, you are done professionally. You probably won’t be fired, but every opposing attorney in the area will know what you’ve done and your contest rate will skyrocket. Every DOL attorney will know what you’ve done and they will never take one of your cases to court again, you will have every contested case tossed out.
- Follow the Evidence. Just because you’ve seen something 20 times, doesn’t mean you know what happened the 21st time. Investigate! Use your powers of observation and deductive reasoning to figure out what’s happening every single time as if you’ve never seen the situation before. Very few things are as professionally embarrassing as admitting to a judge that you assumed something.
- Actively listen. When you interview employees don’t go into the interview determined to get yes or no answers to all of your questions. Even if all of the physical evidence gives a clear picture, ask open ended questions and listen not for the words you want to hear, but for words you didn’t expect. Not only will this give you a fuller picture, but you may discover bigger issues.
- Always Keep Your Head on a Swivel. It’s scary how often the forklift operator “didn’t see you” standing there with you hardhat, reflective vest and 9 company reps (all of whom happened to make eye contact with the driver), and suspended loads have a mysterious habit of dropping to shoulder height just as they get close to you.
- Never give advanced notice. This is one of the things that can actually send us to jail, and although I’ve never heard of people actually going to jail, I have heard of people being “reassigned” to other duties, for the rest of their career.
- Never Argue with a Team Member in Public. It’s OK to disagree with fellow CSHOs, it can actually be good for the inspection even, but don’t do it where the company can hear you. If you publicly disagree and the company hears you, they then have an avenue for contesting any citations and you’ll hear “they couldn’t even agree that it was a violation,” in front of the judge.
- Never Equivocate on the Stand or During Deposition. When you’re under oath be firm, “This IS what I saw,” not “I’m pretty sure I saw this.” It’s OK to say “I don’t know,” or “I don’t remember, I would need to check my notes or the video.” If you equivocate, you have just introduced doubt, and if the compliance officer is in doubt, what way do you think the judge will rule? Just remember Rule #1 – Never Lie.
- Never Get Angry. No matter how passionate you are, no matter how abusive the employer is, never get angry. If you’re in a situation that is escalating, find a way out of the room, you can not win that argument but you can make it worse.
- Understand Their Anger. A lot of anger directed at you is fake, especially that from opposing attorneys, they’re either testing you or trying to intimidate you so you won’t be as effective. Sometimes people are angry at getting caught doing something they weren’t supposed to (remember fight or flight?). Some people are angry for reasons that have nothing to do with you. There are other possibilities as well, but if you understand the anger you have a chance to diffuse it. Just don’t forget rule #8 - Never Get Angry.
- You Can Never Have Too Many Charged Batteries. This is especially true for equipment junkies, as most IHs seem to be. It’s almost a rite of passage that every new CSHO will, at some point, forget the extra batteries in the middle of the inspection. With any luck the batteries will be in the car instead of back at the office or hotel. When this happens, expect much ridicule, especially from us old timers who have never done anything like that ourselves (I write hoping a bolt of lightening doesn’t strike).
Friday, July 23, 2010
Top 10 Things Young CSHOs Need to Know
Below are my Top 10 Things Every Young CSHO Needs to Know Before They are Let Loose on the World.
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Be careful of everything you say because it can and will come back to bite you.
ReplyDeleteRe: No. 1: Good advice, but I don't know about "you are done professionally" if caught in a lie. I can think of one CSHO who got promoted after being caught in a lie in an affidavit. Maybe that's one of those "the ends justifies the means" area offices.
ReplyDeleteRe: No. 4, "always keep your head on a swivel," you're not implying that employers are intentionally trying to injure OSHA inspectors, are you?
RT, I've seen a few people who have screwed up big time and then gotten promotions just to get them out of the job they were in. It's messed up logic, but it did solve the problem.
ReplyDeleteAnd I'm not implying anything, I'm stating outright that there have been, and will continue to be, employers who try to injure CSHOs. It's happened to me, unfortunately not in such a way that I could prove intent.
I would like to add two, though they may be so obvious you chose not to include them. One - remember you are dealing with PEOPLE, both the employer and employees. Listen to them and treat them with respect. Two - look for the hazards then figure out how the standards apply, not the other way around.
ReplyDeleteBoth excellent points. I kind of see the listening, don't get angry and understand their anger as specific aspects of remembering you're dealing with people. When I say understand their anger, I should really say try to understand who you're talking to.
ReplyDeleteSome of us are old enough to remember an OTI instructor who retired several years ago (I won't mention his name) who used to preach "identify the hazard, then figure out how to cite it." Maybe I should combine 8 & 9 and add this one.
Sorry, these all sound great. Motherhood and apple pie. UNFORTUNATELY, doesn't work out that way. Too many ideologically driven RAs -- which in turn, creates ideologically driven Deputies and ADs, and so forth down the line.
ReplyDeleteSorry but it's absolutely and definitively true.
One thing I learned is that "silence is golden." This connects with 'don't get angry' and its sidebar, "don't get into hot argumentation." When blood pressure rises, button lip. Give respondent a chance to think your silence shows weakness and start to crow about it. Sometimes surprising truths show up in the process.
ReplyDeleteAnon, I feel bad for you because I live and teach those rules every day and there's not a thing any RA or AD can do to stop me, not that I've actually met one that would (and I've met most of the RAs and a lot of ADs). How I conduct myself ethically or professionally is mine to choose, as it is for you to choose, not theirs.
ReplyDeleteGeo: You are absolutely right. I have a friend who likes to say "shut up, you might learn something." It's true.
To point #4. Does OSHA have a near miss reporting system for the CSHO's? I work in private industry, and it is almost mandatory to have an incident reporting and investigation system. Would be interesting to see if there was a pattern for incidents based on company, industry, union/non-union, etc.
ReplyDeleteAm the same 'Anon'.
ReplyDeleteI understand that one practicing the advice given is a good thing. I agree. I was was making the point that it's too bad that many others in the agency seemingly do not follow it which is rather disheartening.
Anon @ 5:49 - There is no OSHA near miss reporting system, employers aren't even required to report accidents if fewer than 3 people are hurt. And the Recordkeeping standard doesn't require recording near misses. And we don't have enough resources to deal with them anyway.
ReplyDeleteAnon @4:36 - I'm sorry, I completely misread the tone of your post (this is why I prefer recording witness statements instead of only writing them down, you lose too much nuance in the writing). You're right that it's too bad not everyone follows something like this, but I know enough CSHOs to believe that most of them do. It would be interesting to see some demographics on it, I would bet there would be variability based on area of the country, the Area Director, Regional Office influence, and even age (some of my generational peers can be a little cynical).
So if a CSHO gets hurt during an inspection, does OSHA send another CSHO out to investigate? Does OSHA then write itself a 5(a)(1) for putting its employee in harm's way?
ReplyDeleteI'm being silly. I think most employers would be absolutely mortified if a CSHO was hurt during an inspection, moreso if intentionally hurt by an employee.
There are, and probably always will be, people who view OSHA inspectors as yet another extension of "the man," the bureaucrat who makes his job harder with all those rules. Sometimes these people are bottom-of-the-food-chain laborers; sometimes they are foremen. But that mentality rarely comes from the top of the company, unless it's a small company.
Never chase willful violations. You'll waste 5 months of work. Our soliciters lack the testicular fortitude to pursue them.
ReplyDeleteRT - That's an interesting question, most of the significant CSHO injuries I know of occur because of car accidents. I would hope someone outside of OSHA would investigate (depending on how serious it is), I'm not big on self regulation.
ReplyDeleteI also agree that most employers would be mortified, or even scared out of their mind. If it's intentional, then DOJ gets involved and it's a criminal investigation.
Anon @ 3:42 - That's too broad of a statement, yes there are enough people in SOL who have the courage of Chicken Little, but there are others who will fight with you to the end. Some of this seems to be regional, some regions will fight more and harder than others, but in spite of my constant expressions of exasperation with SOL, some of them are pretty good.
The other thing is I've seen cases so sloppily put together even I wouldn't take them forward. In fact, that's number 11 on my list now:
11. If you want your case to go forward, put together a well structured case file and justification for SOL.
@ RT
ReplyDelete"There are, and probably always will be, people who view OSHA inspectors as yet another extension of "the man," the bureaucrat who makes his job harder with all those rules. Sometimes these people are bottom-of-the-food-chain laborers; sometimes they are foremen. But that mentality rarely comes from the top of the company, unless it's a small company."
Were you speaking of small bottom-of-the-food-chain companies like Wal-Mart?
http://bit.ly/bj8RbP
Anon @ 5:11 - He said rarely, not never. How many other large corporations would do what Wal-Mart is?
ReplyDeleteEven BP doesn't take things to trial, and for them it WOULD make financial sense. I would bet that the trial judge would reduce BP's $84 million penalty at least 25%, which means BP would save $21 million, a large enough number to justify the lawyer fees, and even though it's in contest, I'll also bet it never reaches trial (the contest seems to be about abatement measures and time tables).
RT is right, it is usually smaller employers, especially those in rural areas or those in areas where unions aren't every large/effective.
No business wants regulations, but most accept the regulations as the cost of doing business.
Abel, having lived in the business world for many, many years. I disagree that no business wants regulations. That is a gross misstatement not to mention (apparently also a) misconception.
ReplyDeleteBusinesses absolutely DO want regulations. We just want regulations that make sense and provides for commonsense protections.
Making such a comment about businesses not wanting any regulations whatsoever would be like saying no drivers want any traffic laws. I don't know a single person that would like to see the lane dividers be done away with, all the traffic lights taken down, automobiles that meet certain safety standards/"street legal", you get my point.
Require a driver to "train" (akin to flight safety speeches, etc) their passengers on how to use the seatbelt, lock/unlock/open/close the door, etc (not to mention putting the driver in jail if a passenger in the backseat gets hurt because somebody else crashed into them) ... Good luck getting drivers to buy into that sort of stupidity.
O&G Industries.
ReplyDeleteSmall Employer?
"The agency (OSHA)levied its largest fine in the case against O&G Industries Inc., the general contractor, totaling $8.35 million, in response to 119 willful, 17 serious and three less-than-serious citations. O&G said it would challenge OSHA's action."
They are challenging. Must be a "small...rural" company.
Abel, you said "BP doesn't take things to trial"?
ReplyDelete"BP has vehemently denied the charges alleged by OSHA and has formally contested the proposed penalties."
"BP may end up fighting the charges in federal court."
Tuesday 04 May 2010
http://bitURL.net/ahce
"UCLA to contest Cal/OSHA fines"
ReplyDeletehttp://bitURL.net/ahcg
UCLA administration. Academia in the 2nd largest city in the US. A liberal school to boot.
A small, rural employer? Bottom-of-the-food-chain types, RT?
Anon 4:25 8/15/10 - You are absolutely right, laws are necessary so everyone has a level playing field and we're protected from each other, I engaged in hyperbole. I get annoyed because every time OSHA is even mentioned the US Chamber of Commerce jumps up and down claiming we're destroying free enterprise. OK, maybe that was some more hyperbole, but it sure seems they do, and so I over stated what I think, sorry.
ReplyDeleteAnon 10:28 8/18/10 - Most companies that get big penalties contest, that's not the same as going to trial, wait and see if there is actually a trial or if this is just a negotiation technique, see next comment.
Anon 10:37 8/18/10 - You need more recent news: "BP to pay record $50.6M fine for hazards at deadly Texas refinery"
http://content.usatoday.com/communities/ondeadline/post/2010/08/bp-to-pay-record-506m-fine-for-hazards-at-deadly-texas-refinery/1
Anon 10:46 8/18/10 - See what I said about Anon 10:28 8/18/10 comment (I'm thinking your the same person) and keep in mind that was Cal/OSHA, not fed OSHA. Cal/OSHA has issues with their Appeals Board dismissing cases, so it's not surprising a company in California would contest. And as I said, contest does not equal trial.
The other thing is you're trying to project 4 out of 38,000/year (?) inspection results to all of the results. A limited number of exceptions doesn't nullify RT's premise, in my experience RT is right.
The problem is as always perception. Under the previous leadership, the focus was to be on consultation. Now there is a "new sheriff in town". Previously, the outcry was OSHA doesn't enforce enough and business can get away with ... (fill in the blank). Now the outcry is you will kill free enterprise.
ReplyDeleteEither way, there is going to be opposition. What we in the outside world want is reasonable, obtainable, enforcable equal regulation. Not a focus on small,rural, "NON UNION" v anything else.
Your current survey is an example of a flaw. The possible answers are going to force people to maintain their current divisions. Why not have a category that says, "yes, but more..." Fill in the blank with efficient, proactive, or any other adjective. Stronger means big brother, business friendly means biased against the union. Both are bad choices of wording.
I think that OSHA should be business friendly in the sense that if the focus was on proactive consultation with a goal of prevention, that improves safety. but, when the bad apple floats to the top of the barrel, stronger means applying proper enforcement to get them to change their practices.
Look at the new final rule for Cranes in construction. 200 pages of rule. I will admit some improvements long overdue. Some mistakes made as well. And, now completely out of line wiht 1910. When will OSHA get around to updating 29CFR1910.180. As it stands now, an employee may get to a job site to do a job, and then have to refuse work because even though it was believed to be general industry, it now falls into construction (e.g., delivery of materials to a site, and asked to arrange materials for construction work). The worker will have to refuse the work or risk his employer being cited for not complying wiht 1926 rules.
Not to mention 10 ft rule for power lines v. 20 ft in construction...
@ Anons: As Abel said earlier, I didn't say "never." In my experience, most companies out there get it, for the most part, and try to do something about it. They may not like every single reg in the book, but then again, any CSHO I know could easily rattle off a list of the top ten dumb regs that they'd personally get rid of, because they have no discernable impact on improving safety.
ReplyDeleteAnd since when is an employer contest proof of a lax safety attitude? If the safest company in the world gets cited by OSHA, and they contest, I guess that instantly makes them a bad actor, in your mind(s)?
Anon: You're right, perception is the problem, but as they say, perception is reality.
ReplyDeleteThe Pump Handle wrote an article about visible changes in OSHA press releases (http://scienceblogs.com/thepumphandle/2010/08/osha_2.php).
It's interesting, but I don't think that much has changed, even the fact that our penalties have been boosted somewhat doesn't seem to make that much difference.
It used to be that we would only publicize inspections nationally if the penalty exceeded $100k. Now, even though they are usually classified as "regional releases," we tout every inspection where we issue a Willful violation. The perception is we're hitting companies harder. But I'm not convinced, I haven't seen the in-compliance rates, or the average violations per inspection. If these jump significantly, then we'll know the new sheriff is more Wyatt Earp and less Barney Fife.
You're also right about the survey, but that's partially a limitation of the survey tool. I've been asking for over a year how to make things better and the loudest voices have been to get rid of OSHA, which isn't very helpful when one understands that OSHA isn't going away.
I would be interested in what you mean by business friendly. We fund the Consultation Program, we have VPP, Partnerships, Alliances, we also have one of the most extensive government websites out there with all kinds of publications intended to help business, and we have the OSHA toll free number (1-800-321-OSHA).
When I ask what you mean by business friendly, I am NOT being snide, I'm serious, maybe one of problems is perception and businesses don't realize how much is out there to help them? What do you think would make us better?
As for the crane standard, fortunately I'm an IH and don't have to worry about it!
@RT
ReplyDeleteYou're right, you did not say "never"...just "rarely".
You're also right that a large company contesting doesn't show they have a "lax" safety attitude. Which is exactly my point. Small, rural companies contesting doesn't automatically prove they have a "lax" attitude towards safety either. Your correct logic goes both ways.
And Abel and Anon are right also. Perception and I would add feasibility are very important actors. I thought your generalization was flimsy because it omits a myriad of other variables that, in my opinion, are easier to justify than "people who view OSHA inspectors as yet another extension of 'the man,'". Do you really think that small business owners, entrepreneurs, and rural folk are that simple minded?
It is fact and truth that many (I won't say most or all) of the aforementioned are confused by the arguably daunting and sometimes contradictory (or fuzzy or overlapping or incomplete) regulations. Many simply don't have the resources and can't justify closing their business because they don't meet code (especially in economic depressions perhaps). Furthermore some simply have a hard time competing when states like CA refuse to write a single industrial truck citation for certain codes for 5+ years while competing companies in other states are forced to re-tool to the tune of 100's of thousands of dollars. (Spare me the "CA is a state run program" defense - an unequal playing field is just that - any way you skin it)
Personally, I live in a fairly large community but I think the negative implications in your statement about rural mindset and its juxtaposition with what I guess to be more metropolitan ares is a mind-numbing cop-out of reality. I believe that OSHA, in general, shares your sentiments and alienates those operating in more remote areas: labeling them as simple dissenters instead of accepting their numbered presence and self evident worth in the conversation.
Anon @ 11:14 Aug 31: You said: "It is fact and truth that many (I won't say most or all) of the aforementioned are confused by the arguably daunting and sometimes contradictory (or fuzzy or overlapping or incomplete) regulations."
ReplyDeleteYou are absolutely right, some of our standards are confusing and many are daunting and there are several contradictions. I get frustrated with our expanded health standards. Lead is 30 pages, all to say: No exposures over 50 ug/m3 or install engineering controls, if that doesn't work use PPE, keep the place clean, check exposures once in awhile and get everyone a physical. I could write that whole standard in 4-5 pages. The problem with our standards is they are written by people who understand the theory and not the practical.
As for the rural vs urban, I grew up very rural, and I can not stress the word 'very' strongly enough. There is a natural divide between rural and urban that I don't think has anything to do with OSHA, or the government for that matter.