Those T.V. legal procedurals, with their expertly tailored litigators uncovering critical evidence and dramatic dialog, miss the point of a winning legal defense: finding a resolution well before the case ever gets to the courtroom, ideally even before an Occupational Safety and Health Administration (OSHA) inspector leaves your facility.
Micah Dickie, a partner in Fisher Phillips’ Workplace Safety and Catastrophe Management Practice Group, will share how to meet—and maintain—OSHA compliance, resulting in fewer citations issued after inspections, more citations getting withdrawn at an OSHA informal, and successfully challenging OSHA citations before administrative law judges.
Dickie will present “Save the Receipts: A Winning Strategy for OSHA and OSHRC Litigation” at Safety Leadership Conference 2025, being held October 20-22 in Phoenix. More information, including registration, can be found at www.safetyleadershipconference.com. Below is a preview of what to expect from Dickie’s presentation.
EHS Today: Your presentation title uses the word "receipts." Whenever I hear that word, I think of the comedy skits where a frazzled guy hands a shoebox full of crumpled up papers to his accountant. I know that's not an apt analogy, so I want to know how you define receipts and how can they help a company win in OSHA and Occupational Safety and Health Review Commission (OSHRC) litigation?
Dickie: It’s about proof. For example, when OSHA shows up for an inspection, it conducts interviews and requests documentation from employers. Often, employees cannot remember the specifics of a particular safety topic on which they’ve been trained.
Sometimes, this is due to overly formalistic wording of questions from OSHA, like “Have you been trained on the effective isolation of hazardous energy?” Some employees will go blank in response to that question, even though they are an authorized lockout/tagout (LOTO) employee and even when they’ve been trained in the last year on LOTO. Consequently, OSHA presumes this employee has not been trained.
If an employer does not have proof of that training, particularly where there is an accident involving service and maintenance, OSHA will likely issue a training citation. Fast forward to OSHRC litigation, and a judge wants to see proof of training, not just testimony from the company’s management.
Is there anything you wish safety professionals could learn (or unlearn) about OSHA regulations and recordkeeping?
Learning what regulations apply to a business and what those regulations actually require is something safety professionals should learn and get a refresh on as time goes by. OSHA regulations impose substantial compliance obligations on employers in every industry, so it pays to read them often and then check for compliance against what the regulations require. OSHA has many letters of interpretation that can help safety professionals in close cases and, of course, legal counsel can help as well.
How can good recordkeeping protect a company before, during and after an OSHA inspection?
As we talked about above, good documentation can, though it does not always, keep an OSHA inspection fairly short and sweet. If a topic like powered industrial trucks (PITs) are within the scope of an inspection, OSHA will ask for employee certification records. Failing to keep and provide those during an inspection will signal to OSHA that the employer likely has other gaps in its paperwork—and often in its actual safety compliance.
What are some recordkeeping best practices during an OSHA informal and hearing before an administrative law judge?
For OSHA informal conferences, to some extent the table is already set for an employer on recordkeeping. If an employer had a document that OSHA asked for, if it’s within the scope of the inspection, the employer should almost always produce that document.
In the rare case that OSHA decides to cite an employer for a lack of documentation proving compliance with a standard, if the employer has such documentation that pre-dates the inspection, the employer can offer to provide that to OSHA after the informal conference. That is somewhat rare, and you have to be careful about what you share with OSHA, however.
Some documentation is mandatory, but not always. What do you often recommend in those instances where documentation could be seen as optional, nice to have or a wish list item?
Triage. In other words, as we discussed, OSHA regulations require a ton of stuff for safety professionals. In an environment where not everything can be fully documented, prioritize things that often come into play during litigation, like job safety analyses (JSAs) and refresher trainings. While they often are not required by regulations, having frequent JSAs shows that the employer is discussing safety hazards with workers before a project begins.
Similarly, original documentation done at the beginning of employment can get lost, and sometimes that last annual refresher training will be the only proof an employer might have that training was every actually completed, even though it is not required on an annual basis.
What's one thing safety professionals should start doing today with regard to recordkeeping?
In every meeting with employees where a safety topic is covered, have a roster where you can have employees print and sign. Ensure that the full date and what was covered is documented. The second most important thing would be discipline. Document any coaching you do for a safety violation.
What's one thing safety professionals should stop doing today with regard to recordkeeping?
This one goes against the theme we’ve discussed, but hold off on documenting every finding after an accident. An employer’s internal investigation document, if not directed by legal counsel, can be used against it. I cannot count how many times an employer investigated an accident and put down lack of training, lack of proper tools or lack of supervision as a cause of an accident. This stuff can be discussed, and actions can be taken after an accident, but wait to document until you’ve had the benefit of legal counsel.
What's one thing you hope attendees take away from your presentation?
Paperwork is tedious, but it can make or break an employer’s defenses to an OSHA citation.
