The Occupational Health and Safety Administration (OSHA) establishes and enforces workplace safety regulations in several industries, including restaurants. Under the Obama administration, OSHA has undertaken several new enforcement initiatives that have a wide-ranging impact on employers in the restaurant industry. The best way to insulate your restaurant from citations or fines is to know your rights and obligations under the Occupational Safety and Health Act (the OSH Act). This article will provide you with some background information and a few tips to help you and your restaurant be prepared if OSHA comes calling.
Background
The OSH Act is designed to "assure . . . every working man and woman in the Nation safe and healthful working conditions . . . ." 29 U.S.C. 651(b). The Act applies to all employment performed in any workplace in the U.S. that has one or more employees. OSHA is tasked with writing and enforcing regulations to meet the goals of the Act.
An employer's initial contact with OSHA often is through an inspection. Inspections may be triggered by (1) a complaint made by an employee; (2) notification of an accident at the employer's location; or (3) random selection by OSHA. OSHA may either perform an "on-site" inspection – where a real-life inspector tours your restaurant – or an "off-site" inspection, which involves written communication with an inspector regarding alleged unsafe conditions or practices.
What are the Risks?
If an inspection uncovers a violation, OSHA may issue a citation to the business. Typical violations in the restaurant industry include:
- Failure to provide Personal Protective Equipment (PPE) Hazard Assessments or to provide the appropriate PPE, such as cut-resistant gloves, protective burn aprons, or goggles.
- Failure to complete Material Safety Data Sheets (MSDSs) or to ensure that employees are aware of and can locate MSDSs.
- Problems with electrical wiring, such as using extension cords for permanent connections, exposed wiring, unlabeled circuits, or not having enough clearance for panel boxes.
- Improper placement of or lack of training regarding the use of fire extinguishers.
- Lack of coverings for holes in the floor or improper stairway railings and/or guards.
- Excessively wet floors and/or excessive debris, such as boxes or equipment in walkways.
- Obstructed exit routes or exit signs not illuminated and visible and/or non-exit doors not properly marked with "not an exit."
- Lack of eye and face protection where necessary.
- Employees not properly trained in administering first aid and/or lack of first aid supplies.
There are generally two types of citations: (1) citations for violation of an individual standard (most common); and (2) citations for the violation of the "General Duty Clause" (also known as a § 5(a)(1) Citation). Citations may be classified as (a) de minimis, (b) other-than-serious; (c) serious; (d) willful; or (e) repeat. OSHA citations may or may not also include a fine.
Currently, penalties can range anywhere from a simple order to correct or "abate" the unsafe condition by a specific deadline to a monetary fine of up to $70,000 per violation. In addition, failure to abate a prior violation can result in a fine of up to $7,000 for each day the violation continues.
What Are Your Rights When the Inspector Knocks at Your Door?
OSHA inspectors must have probable cause to conduct an inspection. Under the law, you have the right to request the inspector's OSHA credentials and to know the basis for the inspector's visit. If that basis is an employee complaint, you should request a copy of the written complaint. If the visit is for some other reason, you should ask for information regarding the specific initiative or program under which your restaurant was selected.
Once you receive this information, members of the senior management team should immediately be contacted. If a serious injury or property damage has occurred, legal counsel should also be contacted. It is important to consider whether you should allow the inspection, and if so, determine its scope. You should designate a member of the management team who is familiar with OSHA standards and who is responsible for safety to represent management during the inspection.
The Act also allows employees to designate a representative to accompany the inspector during the on-site investigation. According to a recent OSHA interpretation, both unionized and non-union employees may select a person who is affiliated with a union or a community organization to act as their representative during an investigation. Unions will likely use this new interpretation to attempt to establish a foothold with non-union employees by acting as their advocate for employee safety in the workplace. Thus, it is critical to consider the pros and cons before allowing the investigation to go forward with a union representative.
If the investigation proceeds, the employer representative should stay with the investigator every moment. The employer representative should also document everything the inspector observes. The representative should never volunteer information. The inspector has the right to speak privately to your employees. However, employers also have the right to stop interviews if they become disruptive or unreasonably interfere with ongoing work.
A closing conference will occur at the end of the inspection. At the closing conference, you should question the inspector about all areas of possible and probable violations. Do not admit anything because such admissions may be used against you if a citation is later issued. If a citation is issued, we recommend you consult with experienced counsel before deciding whether to contest the penalty or enter into a settlement agreement with OSHA, since such actions may have costly and long-reaching consequences.
Preventative Measures
Employers should take proactive steps to ensure OSHA compliance before an investigator conducts an on-site inspection. These steps include ensuring that you are in compliance on the most commonly cited issues discussed above and that you have developed and implemented a written safety program. Employees should be regularly trained on safety procedures and how to prevent workplace accidents. The Department of Labor reports that nearly 30 percent of restaurant workers are 20 years old or younger. Due to this younger workforce and the high rate of turnover, regular training is crucial in the restaurant industry. Employers should keep records of minutes taken during employer-employee safety meetings and ensure that managers are enforcing safety rules correctly and consistently.
You should also ensure you are maintaining proper paperwork. For restaurants with 11 or more employees, these records include the OSHA 300 Log of work-related injuries and illnesses, the annual OSHA 300A summary, and the OSHA 301 injury and illness incident report. If an employer has more than one establishment, a separate set of records must be maintained for each one. Records for employees should be kept at the employee's work location. In situations where the employee does not work at the same location each day, records should be maintained at the location from where the employee is paid or at the base from which he or she operates. In general, OSHA logs must be maintained for five years following the end of the calendar year covered by the records. Failing to maintain or produce these records during an inspection can result in a citation, which may include a monetary fine.
Whistleblower/Retaliation
Many on-site inspections are the result of complaints by disgruntled employees. Additionally, unions and community organizations such as Restaurant Opportunities Center United (ROC-United), a union-backed group focused on restaurant workers' rights, have recently used OSHA complaints as a way to gain popularity with employees at non-unionized facilities. Even if you know or suspect that such groups are behind an OSHA complaint, it is imperative to remember that you cannot take action against an employee for filing an OSHA complaint or participating in an OSHA investigation. Doing so will only create a new legal problem in the form of a whistleblower or retaliation complaint. According to OSHA statistics, 2,787 retaliation/whistleblower complaints were filed in 2012 – a 30% increase since 2009. While many of these complaints are meritless, and may be successfully defended, it is important for employers to take certain precautions before taking actions against an employee who has filed a complaint or has been involved in an OSHA investigation. Failing to do so may subject your company to time-consuming and potentially burdensome litigation.
If you have any questions regarding this article or other employment related issues impacting the restaurant industry, please contact the author, Josh Sudbury, jsudbury@fordharrison.com, who is an attorney in our Nashville office, any member of FordHarrison's Restaurant Industry practice group, or the FordHarrison attorney with whom you usually work.