How to handle OSHA complaints

"What phone call?" you may ask. "Short of a warning of catastrophic explosion, no phone call could possibly shake my world," you may be thinking.

Ever hear of the OSHA complaint process? It's where employees - yes, even your employees - contact OSHA and level charges against their employers. Federal and state OSHA officials conducted 24,490 complaint/incident-related and 16,553 referral/follow-up inspections in fiscal year 2000. While these numbers might raise the hair on the back of your neck, it's not all doom and gloom. Honest.

OSHA handles many complaints via a phone/fax investigation, so when that phone call comes, followed by a fax, keep these steps in mind:

Don't panic. The only way to at least minimize your panic is to have a response plan already in place. Sure, I know you don't have any disgruntled employees or self-proclaimed "saviors of the working class," just keep telling yourself that.

You want to be prepared, because the clock is ticking once you get the call. You have five, yes, only five days, to respond to each and every one of the allegations. And not to be misunderstood, OSHA makes it very clear:

"If we do not receive a response from you by (due date), indicating what appropriate action has been taken or that no hazard exists and why, an OSHA inspection will be conducted."

Your response plan when taking the phone call should include the following:

• Listen (do not ask any questions);
• Admit nothing related to the allegations (do not ask any questions);
• Refute nothing related to the allegations (do not ask any questions);
• Explain nothing related to the allegations (do not ask any questions);
• Do not question the legitimacy of the allegations; and,
• Express genuine and professional concern regarding the allegations (do not ask any questions).

State that you will review the specific allegations when you receive the faxed copy and comply with the directions contained within it (do not ask any questions). Thank the nice OSHA person (do not ask any questions); and, oh, did I mention, do not ask any questions.

You will receive the fax pretty quickly after the phone call (during which you asked NO questions). Read it thoroughly. Post a copy of the letter on the employee bulletin board (per OSHA's instruction: "Where it will be readily accessible for review by all of your employees?). Sign the "Certificate of Posting" and fax it back to OSHA immediately (keep the fax machine communication confirmation and attach it to the certificate).

Go into action. Review the OSHA standards cited in the letter, investigate the allegations, determine the legitimacy of the complaint items, correct them or put the corrections in motion.

Act quickly. Draft your reply letter no later than three days after you receive the phone call and fax. Work the weekend or double shifts if you have to. Your reply should include the following:

• Address it exactly as the return address appears on the complaint letter, to the attention of the OSHA representative that signed off on the letter;
• Include the official complaint number on the "Subject" line;
• Your salutation should match the salutation of the complaint letter;
• State the purpose of the letter (such as to address the allegations), present your findings and whatever actions you have taken. The language you use should be a mix of English and OSHA legalese. To affect this, use the same tone that comes across in the OSHA complaint letter. No, I don't mean detached, bureaucratic and uncaring. But when OSHA refers to the violations and/or hazards as "alleged," you should refer to them likewise. When OSHA cites specific standards, you should refer to those specific standards. State the facts. Make no excuses. Do not raise the possibility of a disgruntled employee. Most importantly, ask NO questions, such as: "Will this satisfy the inquiry?" "Is there anything else we can do to address these allegations?" "Can you offer us some assistance?" "Would you like to come by the plant and take an informal walk-through to see our operation?" Remember, the purpose of your letter is to CLOSE THE FILE. You don't want to give any indication that: a) You're minimizing the seriousness of the allegation; b) You're blaming an employee for playing games or seeking revenge; c) You don't know what you're talking about; and d) You believe that OSHA is not the least bit effective and should be dismantled in order to fund circus acts and Sylvester Stallone educational documentaries. Provide documentation. Collect an appropriate amount of supporting information (purchase orders, monitoring results, vendor/contractor contact information, photographs). Appropriate means not too little (you don't want the nice OSHA people to wonder what sampling method was used), or too much (a photograph that also happens to contain the image of an unguarded punch press located on a makeshift mezzanine with unprotected floor openings operated by a one-handed employee with three fingers). Show confidence. Close the letter by expressing your commitment to employee safety and health, and confidently stating what has been done to address the "allegations" contained in the complaint letter. Again, do not ask any questions. Guarantee delivery. Send the letter by Certified Mail with a receipt signature request, or by private courier.

The waiting game

Now you play the waiting game. With OSHA, no news is good news. The only way that you will know that the case is still open is if OSHA contacts you for additional information - or if you greet inspectors in your lobby. If you don't hear anything within three days after delivery of the reply letter, you should call and request a status report. Do not ask for anyone in particular, just state that you are calling to check the status of Complaint #123456789. Do not ask anything beyond that. If you're told that the case is still open, call back tomorrow. The OSHA complaint process has been streamlined and, I believe, is to the advantage of the employer. It's up to you to handle complaints in a professional and knowledgeable way. Are you up to the task?

SIDEBAR: What could be easier?

• A written, signed complaint by a current employee or employee representative with enough detail to enable OSHA to determine that a violation or danger likely exists that threatens physical harm or that an imminent danger exists;
• An allegation that physical harm has occurred as a result of the hazard and that it still exists;
• A report of an imminent danger;
• A complaint about a company in an industry covered by one of OSHA's local or national emphasis programs or a hazard targeted by one of these programs;
• Inadequate response from an employer who has received information on the hazard through a phone/fax investigation;
• A complaint against an employer with a past history of egregious, willful or failure-to-abate OSHA citations within the past three years;
• Referral from a whistle blower investigator; or
• Complaint at a facility scheduled for, or already undergoing, an OSHA inspection.

OSHA telephones the employer, describes the alleged hazards and then follows up with a fax or a letter. The employer must respond within five days, identifying in writing any problems found and noting corrective actions taken or planned. If the response is adequate, OSHA generally will not conduct an inspection. The employee who filed the original complaint will receive a copy of the employer's response. If still not satisfied, the complainant may then request an on-site inspection.