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If You Cooperate with the Government, Do Not Lie – An OSHA Lesson

A supervisor in North Dakota has been indicted for obstruction of justice in connection with an OSHA investigation of a worker’s death.  US v. Reisinger, Case 1:19-cr-00240-DLH (DND, 2019).  The supervisor of forty (40) employees allegedly lied about his knowledge of the work being performed and whether it posed a hazard.  He also is charged with concealing evidence from OSHA in the form of written work orders.  The accident causing the OSHA investigation occurred five years ago.

Let’s start with the obvious.  Never lie to government investigators.  Martha Stewart went to prison for lying to the FBI, not for the other crime she was charged with, insider trading.  It is better to invoke your 5th Amendment right against self-incrimination, whether guilty or innocent, than mislead investigators.

Under the Occupational Safety and Health Act, employer representatives can be criminally charged if an employee dies as a result of a willful violation of federal safety laws.  These instances are rare, but they do happen.  Every time there is a fatality in the workplace, OSHA looks at the safety record of the employer to determine whether the employer has a history of skirting safety and health regulations.  Even in instances where OSHA believes there has been no criminal violation, it attempts to determine whether civil citations and penalties are appropriate for the conditions that led to the fatality.  There are even mechanisms to compel the employer to participate in a workplace inspection and to subpoena witnesses and documents from the employer.  Employers generally cooperate, but refusing to cooperate is better than lying or altering evidence during an investigation.

A workplace fatality creates chaotic conditions.  Even if an employer intends to cooperate fully in an investigation, it should have in place a mechanism for dealing with the chaos that follows a workplace fatality or other catastrophe.  You should know that first responders are instructed to contact OSHA when there is a workplace accident, and you should anticipate a visit from OSHA before those first responders leave.  Know what to do.  The most important thing is to take steps to find out what happened, interviewing all the witnesses before you even consider providing those witnesses to the OSHA inspector.  Remember, you are trying to find out what happened; OSHA is collecting evidence for citations and possibly criminal action.

Even where there has been no accident, and OSHA shows up to conduct an inspection, you should have procedures in place for dealing with such visits.  An OSHA inspector without a warrant has no right to conduct an inspection without your permission.  Slowing down an investigation to insure accuracy is better than hoping to clear up inaccuracies resulting from the chaos later.  Never, however, lie. For help complying with OSHA regulations, contact us by calling (410) 727-4300.

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