OSHA Kicks Out Employers during Interviews
The Oregon Occupational Safety and Health Administration (OSHA) can prohibit employers from attending interviews and depositions of workers during an investigation even if the workers object, according to the Oregon Court of Appeals recent ruling in Nygaard Logging Co. v. State of Oregon, (No. 97-C-10448; CA A98942 Jan. 19, 2000).
OR-OSHA is the state agency charged with investigating workplace accidents and it is empowered to assess potentially heavy fines against employers for safety violations. As many of you know, OSHA likes to interview employees in private because it believes employees will be more forthcoming if an employer does not monitor their interviews. Employees, on the other hand, often want someone to be with them so that they do not feel pressured or tricked by OSHA's questions. OSHA can assess potentially heavy fines against employers for safety violations.
In Nygaard, after an accident had occurred at a logging company site, OSHA sought to interview several employees in private outside the presence of the employer. The employees refused to talk unless an employer representative was present. Without being able to conduct private interviews, OSHA subpoenaed the employees for depositions as part of its investigation, again trying to conduct the depositions outside the presence of the employer.
The employer tried to cancel the subpoenas and stop OSHA from interviewing or deposing its employees without a company representative present. The circuit court agreed and banned OSHA from excluding the employer unless the employee asked for a private interview.
The Court of Appeals overruled the circuit court, saying that Oregon statutes expressly authorize OSHA to interview or depose witnesses in private against their will. That's how the law now stands unless the Oregon Supreme Court reviews and reverses the decision.
For the time being, employers should allow OSHA to conduct interviews of its employees in private. If the employee resists, OSHA can subpoena the employee for a private deposition, which may not be at a time or location that is convenient for the employee.
Good Advice for Good Employers Everywhere SM