Witness Statements and OSHA Inspections

Trent Cotney PA ◆ FRSA Legal Counsel

Last month’s article discussed OSHA witness interviews and statements. As discussed, OSHA relies heavily upon witness statements during inspections to issue citations. Unlike a criminal investigation, employees who are interviewed by OSHA are not given a Miranda or similar warning. The Miranda warning, in part, advises of the Fifth Amendment’s protection against self-incrimination and the right to remain silent. Currently, OSHA’s Compliance Safety and Health Officers (CSHOs) are not required to give a Miranda warning to interviewees because they are not police officers and because the interviewee is not in custody. However, similar to a criminal arrest, an interviewee risks exposing himself or herself to potential criminal liability given the possibility of criminal sanctions
under the OSH Act.

The tactics employed by OSHA may violate employer and employee’s constitutional due process rights by not informing them of their right to remain silent or have counsel present during interviews. It is very difficult for an interviewee to determine at the time of the interview if their statements could lead to criminal prosecution. For example, if an employee being interviewed mentions that he had taken illegal substances which resulted in the death of another employee, he/she may face criminal prosecution if the matter is referred to the police. Similarly, a supervisor’s comments may provide the evidence needed for an employer to receive a willful citation with the possibility of criminal prosecution.

Without a Miranda-type warning, many interviewees may provide incriminating testimony. Employee interviews are voluntary and employees have the right to decline an interview outright. However, OSHA can choose to obtain a subpoena to compel the interview.
In the absence of a subpoena, an interviewee cannot be compelled to do anything during the voluntary interview. An employee may refuse to answer certain questions or may refuse to provide other employees’ names in response to questions. Employees may decline an interview if he or she is not comfortable that he or she will understand the CSHO’s language well enough to answer the questions accurately and completely. The employer or OSHA may provide an interpreter but the employee should be cautious with interpreters because different dialects can have a significant effect on discussions of detailed technical matters. This language barrier often results in confused or incomplete responses which can be used as the basis for a citation.

As stated last month, employees are entitled to have a representative present during the interview if requested by the employee. This person can be an attorney and can be the employer’s attorney if the employee and attorney discuss any potential conflict of interest and the employee knowingly waives any potential conflict. Employees have the right to refuse to allow the interview to be recorded by video or audio. However, OSHA can obtain a subpoena to compel the recording.

On several occasions, we have encountered attempts by CSHOs to request that employees demonstrate proper safety techniques
including how to properly install an anchor, put on a harness, and cut tile for testing silica inhalation. Interviewees are not required to perform demonstrations which amount to entrapment. Again, attempts by CSHOs to ask for safety demonstrations on job sites may violate the constitutional rights of employers. Employers should never agree to perform demonstrations without first obtaining the advice of legal counsel. With the recent Federal Budget Act increasing OSHA citations by as much as 80 percent, employers must
remain vigilant and be aware of their rights during an OSHA investigation.

FRM

Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual
pattern or situation.

Trent Cotney is Florida Bar Certified in Construction Law, General Counsel and a director of the Florida Roofing and Sheet Metal Contractors Association (FRSA), a director of the West Coast Roofing Contractors Association (WCRCA), and a member of the National Roofing Contractors Association (NRCA), Midwest Roofing Contractors Association (MRCA) and several other FRSA affiliates. For more information, contact the author at 813-579-3278 or go to www.trentcotney.com.