Legal Issues
Avoiding Citations
Prior to showing up, the inspector will have already researched the inspection history of the site and reviewed the operations and processes in use and the standards most likely to apply.
In short, the inspector will be prepared so you need to be prepared, too. One way to do this is to designate one employee( most likely, a safety employee) to be the company representative for the inspection. This person will accompany the inspector wherever he or she goes. As a result, there will be one consistent“ voice” on behalf of the company.
Having a good representative is critical, especially considering that anything the representative tells the inspector may later be used as evidence against the company.
Of equal importance is to take detailed notes during the inspection, because they may prove critical during negotiation as well as in developing safety programs to avoid potential violations in the future.
Finally, OSHA requires that all employers maintain certain types of records. Make sure these records are in fact maintained and easily accessible. For crane rental companies, this will include— at a minimum— monthly and annual crane inspection records. Furthermore, OSHA 300 Log forms( of work-related injuries and illnesses) must be produced within four hours of being requested.
Know Your Rights and the Process
If you don’ t know your rights, you cannot assert them. For starters, employers— just like people on the street and in their homes— are entitled to Fourth Amendment protection against unreasonable searches and seizures.
An OSHA inspector therefore needs one of two things to proceed with an inspection: a warrant or your consent. Since an inspector will usually arrive without a warrant, this provides an opportunity( prior to consenting) to negotiate a reasonable scope and protocol for the inspection.
In addition, the inspector will invariably request that you produce certain documents and records. Ask the inspector to put the demands in writing. You are not obligated to produce requested records on the spot except perhaps the 300 logs.
Furthermore, during the actual inspection, the inspector will walk the site, gather evidence and seek to identify potential safety and / or health hazards. Inspectors are authorized during this phase to take photographs, videos and measurements; collect environmental samples and employ other reasonable investigative techniques.
During the inspection, you have the right to take side-by-side photographs and duplicate OSHA’ s measurements, sampling and other investigations. Do not hesitate to exercise these rights. OSHA inspectors know you have them.
Although an OSHA inspector may interview non-supervisory employees privately( and may insist on doing so), an employer representative, including counsel, has a right to participate in all management interviews. Employees are not required to sign a statement or the inspector’ s interview notes or give video and / or audiotaped statements.
Evaluate Potential Defenses
It is important to have at least a basic understanding of certain procedural and substantive defenses to citations. Some popular defenses include:( 1) the wrong employer was cited( 2) unpreventable employee misconduct
( 3) vagueness of the standard( 4) no hazard exists( 5) duplicative citations( 6) greater hazard posed by compliance( 7) impossibility / infeasibility of compliance( 8) allocation of responsibility by contract( 9) violation not within the scope of employment
( 10) new citation not“ substantially similar” to prior citation( if cited for a“ repeat” citation).
The unpreventable employee misconduct defense warrants special discussion. If you can establish that an employee’ s violative conduct was unknown to the employer and in violation of an adequate work rule, which was effectively communicated and uniformly enforced, then no citation should be issued. This underscores the importance of not only establishing a comprehensive and effective safety plan but also communicating the plan to employees, inspecting the site and enforcing the plan.
By seeking to incorporate the above strategies, the dual purpose of promoting safety and minimizing exposure will be served, all to your benefit and the benefit of your employees.
Michael Rubin, who has more than 20 years of litigation experience, is a recognized thought leader in workplace safety and OSHA compliance who provides comprehensive counsel on all aspects of occupational safety and health law across multiple industries. He represents employers during the OSHA inspection process and routinely litigates before the Occupational Safety and Health Review Commission and in State Plan jurisdictions.
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May 2026 • www. cranehotline. com