Michael Rubin
Summary
Michael Rubin is an OSHA attorney with 25 years of experience in the legal field, primarily focusing on OSHA inspections, citations, and trials. He initially got into OSHA law out of a desire to establish a niche practice, and he has since become an expert in the field. While it's important to have a healthy respect and concern for OSHA, he believes it's equally important to focus on identifying hazards, training, discipline, and retraining to keep your workplace safe. Rubin: OSHA lawyer Mike Buchanan talks about his background, passion for law, and provides tips for dealing with OSHA on a job site. He advises employers to know their rights, have a game plan, and communicate with employees to avoid incidents and complaints. He also cautions against making mistakes that could harm a potential OSHA case, such as agreeing to be recorded without understanding your rights, or not having relevant records and disciplinary actions. Overall, knowing and understanding your rights and having a solid communication OSHA inspections are a part of a company's safety program, and it's important to have a thorough understanding of OSHA regulations and compliance to avoid penalties or fines. It can be beneficial for companies to seek third-party help, like safety consultants, to ensure they are meeting all OSHA requirements. There can be missteps in compliance due to ignorance or lack of knowledge, so it's important to have experts look out for potential violations and provide guidance on how to navigate gray areas in regulations. - Be aware of your rights during an OSHA inspection, such as the right to request a warrant and the right to limit the scope of the inspection. - It's important to know your rights before an inspection occurs, because once OSHA shows up, it may be too late to fully prepare. - Training and safety programs are essential for OSHA compliance and can help prevent violations and penalties. - Common gotchas or red flags for OSHA inspections include fall protection, ladders, working at Interview with Michael Rubin, an OSHA and workplace safety expert who works at Ogletree Deakins law firm. Topics discussed include the role of OSHA and how it applies to warehousing and distribution centers, the process of OSHA inspections and penalties, common OSHA violations in warehouses, and the importance of maintaining proper safety protocols in the workplace. Rubin also shares his thoughts on what companies can do to prepare for OSHA inspections and how they can stay compliant with regulations. He also
Transcription
Speaker 1
[00.00.00]
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your operation. No, let Wow be your side storage solution while you go back to focusing on main line operation. All right. Hey everyone, thanks for tuning in to episode number 28 at the Warehouse Underground podcast, Real Talk or Warehouse DC and FC professionals of all levels around the globe. I am Ben, the host of the show. Now let me set the stage for you. Your warehouse leader. You're a distribution center leader. Someone comes up to you and they say OSHA is in the lobby. Now, I don't know about you. I don't particularly like to hear that. In fact, it sends a little bit of a chill down my spine. What am I supposed to say? What do I not say? What is OSHA allowed to do? What are they not allowed to do? All these questions I would have, and I know many others out there would have to, because we simply don't have the expertise in this legal realm. But my guest on the show today absolutely does. His name is Michael Rubin. He is an OSHA attorney at Ogletree Deakins, helping employers with OSHA inspections, citations and trials nationwide. Now, I've wanted to have him on the show for a long time to talk about some of this stuff, one for my own personal benefit, and two, because I know lots of you out there will benefit from it as well. To find out more about this. So really excited to have him on the show today and chat with him and learn more about legal and the world of OSHA. So with that, I will bring him on the stage. Michael, my friend, thank you very much for appearing on the Warehouse Underground podcast. And how are you today, sir? Doing great, Ben. Um, really looking forward to having this conversation. So, um, I am ready for the questions, the discussion, and I literally can't wait to start. Good. So like like I say, I've been I'm excited for this show today because because I've been wanting to chat with you for a long time. I've been trying to do this show. So before we get too much into it, though, can you just tell the audience a little bit about your background because you have a very extensive background. You've been in this industry for a long time, but what's your background in the legal world and then what's your experiences like so far with OSHA?
Speaker 2
[00.03.18]
So I'm now on my 25th or 26 years as an attorney. Um, I would say the first 15 years exclusively civil litigation, personal action, uh, personal injury defense cases. And then about 15 years ago, the resident partner in the firm I was at at the time said, hey, Mike, we don't have anyone who does OSHA. Why don't you check that out? So I thought, okay, you know, I'd been a general litigator. And at around that time, I really was looking to establish sort of a niche practice. And OSHA was the first area that the more I looked into it, the more interesting it was. And just, you know, more led to more investigation. And I really took off. And then I would say at one point I said, there is no looking back. I am Mike Rubin, an OSHA attorney, and I'm going to take this as far as I possibly can. So that involved doing the litigation, my existing caseload, which I had been doing for years, but sort of on the Sinai side, it was almost like a gig, uh, you know, job or gig, um, type thing. I was really learning every single thing I could about OSHA and safety, and that involved going to safety conferences, you know, going over the OSHA website and then taking classes. Uh, you know, OSHA tends and construction in general industry then, hey, let's do better. So OSHA 30s and construction in general industry, then they um, ASP and CSP. And just continually trying to learn more and more and more about safety, and then really also learning the OSHA process. So when you don't have a lot of experience in something, the first thing you really want to learn, at least my view was I've got to understand how this works procedurally. So what happens if someone gets cited? When does OSHA need to cite someone all these facts and, um, you know, aspects of the process and then little by little started doing the work and then a little work turned into a lot of work, and it just snowballed more than I could probably imagine. And, uh, yeah, now, you know, I think last week I said OSHA for the 100 and, uh, maybe the 10,000th time this year. So I tend to talk about OSHA quite a bit. So all right, today, 100% of my practice is OSHA and, you know, inspections, citations, litigation, state plans, federal OSHA states, 30 states and counting.
Speaker 1
[00.06.09]
Yeah, yeah, I mean, it's it's everywhere. And I think and I mentioned this in the intro for the ops world out there. Ops leaders. Ops managers, site leaders. Whether that's a construction site or a warehouse or whatever it may be. The term OSHA almost like strikes fear and some of them and and I don't know if that's a good thing. I don't know if they should have a healthy amount of anxiety when it comes to that, or if that's just sort of an unfortunate byproduct. But where are you? Where do you come down on that? I mean, do you think that people should have a healthy, you know, respect and anxiety about OSHA, or do you think it's more of a mythical monster that they've created? That's not really that way in reality once they dive into it?
Speaker 2
[00.06.58]
Well, I mean, the way you phrase that question is really awesome. Uh, so number one, we don't want so much fear that you're going to sit in the office and cry because you're terrified and quit, right? That's too much fear, too much anxiety. At the same time, if you don't think something's important, you're not going to pay it the respect it deserves and it needs. Um, I would say concern is certainly relevant, uh, maybe heightened concern. And that sort of spills into something else. Because if you have a safety position. Worrying about OSHA showing up is only one part of it. You know that because it will reflect your effectiveness, arguably your company safety, performance, all of that. Um, but at the same time, you it's not just compliance, it's safety itself. Right? Identifying hazards controls, eliminating hazards. You know, the hierarchy of controls and all of those items. So it's good to have a healthy respect and concern about OSHA. But at the same time, OSHA is not everything independent of OSHA. And that threat. You really need to focus on identifying hazards, you know, training, discipline, retraining, inspections, all of those things that are interrelated but really are their own thing.
Speaker 1
[00.08.23]
Yeah. And I have in my past, I did meet an OSHA inspector when they came to a site that I was at, and I actually ended up really liking them as a person. I mean, we got along great. And and he talked about a lot of the same things that, that you were talking about, I think. But but there is a certain amount of authority and power that, that they have over oversights, that you're right. I think people should have a concern and a healthy amount of respect for it. Uh, it's just it's just getting, uh, getting, getting out there and and out of the unknown and more into the area where you know more about it. And I think that alleviates some people's anxiety and then kind of gives that healthy level of concern. So before we get too far into the show, though, I do say, and I'm like, I'm all of you on LinkedIn, where I follow a lot of people on LinkedIn. And, Mike, you're one of the most you you are putting out so much good knowledge and so much good information on LinkedIn. What, you know, like what was your motivation behind that? I mean, do you do you take on clients? Do you do consultations? I mean, do you do you do events in and everything because you're you're putting a ton of good stuff out there that people should definitely be following and taking advantage of even after the show. Right. The podcast is just scratching the surface, but I don't know what's your what's your motivation behind that? What's your history behind your your own growth and what you do on LinkedIn?
Speaker 2
[00.09.50]
Well, I'll tell you, I have to give credit where credit is due. Um, before I came over to my current firm, Ogletree Deakins, I saw this other OSHA attorney who was now my colleague who I, I could not have more respect for, has actually served as kind of as a mentor. He's is very impressive. For the first time ever, I saw someone talking in in real English talking about OSHA, and his name is Philip Russell. And when I saw him doing that, it almost gave me a license to say, why don't I publish? You know, share with the world what I really think about this stuff. And I noticed that it's almost a breath of fresh air. People want you to share what you think, what you've noticed, but they don't want it straight down the middle of the plate. They want something a little bit off center, something that's not just straight information. Give some context, give some extra flavor and maybe a little flair and fine. And, um, that's really what started it. I will say it has led to clients, right? People say, you know, it's sort of your it's not an audition, but people think, oh, I like the way that person thinks. Some might say, I hate the way that person thinks, okay, you know, not going to work. But, um, so there's been a lot of opportunities, not even just people calling and saying, hey, Mike, I have a I have an ocean matter can help, which invariably the answer is yes, I want to help. But also that aspect of sharing what you know, so that can be at industry events. It could be, um, you know, training, in-house training of managers. So just it's really amazing because you can never predict where it will take you. But there's always opportunities and. You know I. With posting on LinkedIn. I do it because I really enjoy it. That's the number one hobby. If it does lead to opportunities, that's great. But that's not the number one reason.
Speaker 1
[00.11.54]
Yeah. I mean, and I, I post a lot on LinkedIn too. And that's one of the like. You have this knowledge, you have this experience. You have this this wisdom. Some of it came from, you know, scars for lack of a better term. And so you want to kind of give back to a lot of people. So I, I just I think that's great. I think that that's great that you're doing that. And I hope after this show with people listen, they go check you out because there there's some good stuff there. So let me ask you the golden question though, and I think this is the the two part question that most of the audience will care about. And that is, number one, what do I have to do at my job site to keep OSHA away? And then if they do show up, how should the leadership conduct themselves to help OSHA do their job, what they're required to do, but also protect yourself and the company and the organization that you run? If it if it happens. Okay. That's a great question. It's a very simple answer in 35 parts. Let me start with this number one. And you have to know your rights. Management has to know their rights if an inspector shows up. Nothing wrong with with that. If OSHA shows up on any site across the country, I feel confident that I know the employer's rights. Maybe better than the inspector knows the employer's rights. If someone tells me, oh, we've got the EPA outside, what should I do? I'd say, well, you need to call an EPA lawyer. I mean, I don't I'm I'm OSHA. Okay? So you need to know those rights that apply to that specific regulatory entity. That's what gives you, I don't know, confidence, comfort, the ability to handle it. Because when you don't feel comfortable with the process, I mean, how can you assert or write or ask for something you don't know if it's a highly offensive thing to ask or it's routine? You don't know if the inspectors heard this a million times, or you're just the first person to ask. It's almost impossible to be such a good guesser that you could guess. For example, the Fourth Amendment applies and the inspector needs a warrant or your consent. And if it's a federal OSHA state, maybe you could imply consent just by not telling the ocean specter. No. So you just have to know your rights, number one. And then I would say having a game plan if OSHA does show up. I mean, I've done mock OSHA inspections for clients where I actually play the ocean inspector, and it's a 30 point check. So I'm going to check their knowledge of the process very deeply, not just their knowledge, but comprehension. So they can, um, you know, voice objections or, or steer the inspection the right way. But you need to have a process. What do you do when the inspector is at the front gate? Let's say who's going to be the employer representative? You need to know that you can have that representative, and then you just walk through the entire process. You need to understand what OSHA can do. Can't do one thing you mentioned. What can you do to kind of keep OSHA away? Um, yeah. Number one, one of the reasons OSHA shows up, if you have injuries that where you're required to report the injury to OSHA, for example, if you have a fatality and this is federal OSHA, you have to call ocean eight hours of an Tello show. Just generally speaking, um, amputations, loss of an eye or an inpatient hospitalization. You have to tell OSHA within 24 hours, really 24 hours of the triggering event. Are you getting notice? Sometimes that extends it a bit. But when you tell OSHA there's been a serious incident. Guess what? OSHA is likely going to show up. So preventing injuries. Number one great way to keep OSHA away. Number two. Another reason OSHA shows up is anonymous employee complaints. So you might have questionnaires. You need some sort of dialogue with employees to see what's bothering them. You can't prevent every single employee from ever being upset and complaining to OSHA about something. But. Speaking of LinkedIn, I had posted on LinkedIn and said, it's your first day. There's a ton of problems at your, uh, you know, your new job and your safety director. What do you do? And the answer was, you've got to get out on the floor. You've got to speak with employees and say, hey, what's going on here? What's good, what's bad? I want you to trust me. Here's why I'm asking. Go through all these, um, different steps to get trust, know what's going on. And that response is the response I like the most on LinkedIn. Just
Speaker 2
[00.17.05]
walk immediately and start meeting. Meeting workers. If you do that. I think maybe that goes towards creating a environment where there's trust and listen. Might be easier said than done, but you would want an employee complaining to you and that employee knowing there's someone who will be receptive and not turn them away so that they can address a safety issue, as opposed to someone saying, you know, in a vindictive way, even if it's a legitimate, you know, issue. But being upset, saying, I'm going to call OSHA now, you're going to listen. So I think that communication comfort is all really important.
Speaker 1
[00.17.45]
Yeah. All right. So Mike, let me ask you this question with operators out there. I mean, what are some of the common missteps or the common mistakes that they may make, willingly or unwillingly, that kind of hurt them down the road if it goes all the way to the trial or whatever? I mean, what are the things that you see that are just mess ups that people want to do over in the future. But they can't. They can't take it back. So there's a lot of parts to that. Number one, I think when employers don't understand their rights, sometimes they might agree to have OSHA record a manager when they give an interview. So just think if there's been an accident, oftentimes there could be related civil litigation that could run years and years and years. At some point you have your own managers getting deposed, uh, you know, having their deposition taken at that point and attorneys involved. They're getting prepped. You know, there's a lot of thought going into it. When OSHA shows up, if there was an incident, I mean, there might be on site same day right away. And then if you have your supervisor start giving statements, it's being recorded. They might not really understand what it's all about. And you know what we found? My own view. There's a difference between telling the truth, doing your best, and being accurate. As lawyers, we want accuracy. And when we have an ability to prepare managers or whomever for either an interview with OSHA or a deposition, we just want an accurate record. Okay. Um, of course, that's same as the truth and doing your best. But sometimes I think personally, if managers are getting interviewed very close to an incident, they're just going to give an old college try. Right. They're just going to do their best. And whatever it is, it is, and they want to get out of there. And that can have a really negative impact on future OSHA. Um, you know, the future OSHA matter or civil litigation. So just knowing that you don't have to be recorded, you can say, I, I decline, I'm not going to let you record this interview or that OSHA has six months to issue a citation. You can say we want to do management interviews later. We don't want to do management interviews the first day you show up. So that's one. Okay, that can turn out to be a bad thing. Number two, not understanding what OSHA needs to prove and why certain records you have are relevant. So for OSHA to win, for example, or establish a violation in a court of law, if you challenged OSHA, OSHA needs to prove four things. Standard applies, was not complied with, an employee was exposed to a hazard, and the employer, through its management, either knew or should have known of that violation. Many times employers don't know those last two elements. So, for example, if a client calls and says, hey, OSHA's on site, one of our roofers wasn't tied off, what do you think? Are we going to win or lose? My first question would be,
Speaker 2
[00.21.08]
well, is everyone safe? But getting into the legal aspects would be. Was it a supervisor? I did a supervisor know that this employee was up there. Was how long was he employee up there? Was there proper fall protection provided with the harness on the employee, but he just wasn't tied off. I mean, these are the types of questions you really need to ask. And and you need to get answers to understand whether you likely could win or lose a notion. Matter. Um, one little footnote. Disciplinary records are extremely important to OSHA. OSHA assumes that workers, despite your best efforts, just simply are not going to follow all of your health and safety rules. So if OSHA shows up and employees not following a PPE requirement, eventually they may want to know, do you have records where you discipline workers for noncompliant behavior? And if you don't have any of those disciplinary records, OSHA will likely think you've got a deficient health and safety plan. Many don't know this, so disciplinary records and some don't even like that term. They say, well, disciplines and antiquated term. Isn't it really retraining? And, you know, it just sounds so authoritative to talk about discipline. Well, that may be true, but that's what OSHA cares about in large part. So
Speaker 1
[00.22.38]
yeah, and that's one of those things too, I think you will see operators out there or managers, they get told this from their seniors or from HR. Hey you, you need to document everything. You have to document. You have to document. And sometimes they don't like that, but they don't understand what we're kind of talking about right here. If it really goes bad and goes sour. These are the types of things that make a difference. And most, most HR departments will will know that. So I think that's just very good advice for young managers out there who are giving pushback to, I don't want to do all this disciplinary stuff. I don't want to do all this documentation. Well, you'll be very glad that you did. If we get to the instances like what we're talking about right now, I think it will pay big dividends down the road. So now let me ask this question. So you mentioned that you do and you have done. Inspections, like mock inspections for sites and for operations. But it's I've heard that OSHA will sometimes do that as well. Uh, you know, what do you think about that? I mean, do you think there's value in kind of companies going to somebody like you or a consultant or a specialist to say, hey, can you can you give us this help? Can you do a safety inspection or a mock inspection? And should they take advantage of OSHA, who is is doing that or should they go, no, no, no, we don't want to be on their radar at all. We're going to go with a third party kind of help, because I've heard of different opinion on each one of those. Want to get your your
Speaker 2
[00.24.15]
thoughts. Yeah. So what you described is what I think of and I describe as OSHA on site consultation where it's not the ocean enforcement, but they have a separate, you know, uh, effort where you get basically a free of charge inspection and then you don't get cited as long as you correct any deficiencies. I'm all for it. I mean, the more sources of analysis looking at your work environment to see if you're compliant, not in compliance, I think the better. Um, when I talk of doing a mock ocean inspection, I'm going just to show up to see if they understand the OSHA process, but I'm not going to look and say, oh, there's a guard missing, or, you know, you don't have a specific lock out, tag out procedures. It's not those, you know, like, um, standards will not really jumping in, but I have I think it's good. And so there's it's also interesting just a little footnote here. We've had matters where companies have utilised on site consultation. They might get a clean bill of health or, you know, maybe there's some items, but they take care of it. And then OSHA comes back for a real inspection a couple of years later, and OSHA picks up on something that existed two years ago and says, oh, you're this is a violation. You say, well, I had on site consultation here. They didn't say anything. OSHA will say, too bad. We should have known about it. So you can't rely entirely about that. We did have one case where, um, OSHA said, well, you should have had knowledge about this. It was sort of a constructive knowledge argument against our client. And we said, well, if the experts missed it, why would we? I don't know, how can you blame us for us missing it? So it actually did we did weave that argument in there and it would actually turned out to help us out. But I'm all for it. The more people you have in there. Um, you know, if you have someone ask you to redo your entire floor or do something that seems completely out of whack, then you might want to get a second opinion. But yeah, I think it's great.
Speaker 1
[00.26.28]
Yeah. And I think that's a really good point I think. You. Most leaders will have a pretty good idea of their general type safety things that they're looking at at their site guard here, PPE, those type of things. I mean, that's what they managed to do, but what they don't know are what you're talking about. If if this is getting looked at through an OSHA lens, what do we need to do? What do we need to do there? And I think that that's a great and a great additional layer I think that people should take advantage of to then go, hey, we ran this 2 or 3 filters. We have safety pros, we have our own knowledge. And we had a OSHA lawyer who has had cases. They they know what they look for. It doesn't give us a get out of jail free card or a trump card to use kind of a bad term. But this is about as good as it's going to get when they take it to their CEO. This is about as good as it's going to get for us to tell you that, yes, we are OSHA compliant and sleep well at night like we've gone through every possible step that that we can do. So I think that's a really good thing that people should take advantage of if you're doing that.
Speaker 2
[00.27.35]
I want to give you one example. You know, I obviously being an OSHA attorney deal with many, you know, have relationships with many safety consultants. And I've just heard so many stories where a company will say, oh, we're good. You know, they are the sole and you can come in, but you're kind of wasting your time. And then the consultant finds, you know, technically, like 65 violations. I mean, I'm talking an astronomical number of violations. And a company might say, yeah, that's that's no one's going to get hurt with that. Well, it doesn't matter, because if OSHA comes in and they find it and then you get a repeat and then another repeat or a willful, all of a sudden this little thing turns into a huge thing. So you might as well just have someone come in and look for every potential violation.
Speaker 1
[00.28.20]
Yeah. And that kind of brings me to my next question, which is like, do you do people get to the missteps that people make occur because they're just ignorant, or is it because I don't want to say tricked? Because tricked is not a very good word. That's kind of an aggressive word and a bad word, but just you. There's a level of knowledge and understanding the ropes that OSHA knows, and a consultant will know that. You may think you know, but you don't. I mean, is that that that that does happen to a lot of people out there, I think. Would you agree? Not true. But you know what I mean. Like, you just got you some. You were in over your head and you didn't quite realize it because you just had hubris or you thought, yeah, no problem. Yeah, that happens all the time. Uh, where, you know, a lot of this is it almost seems like it's just. Word of mouth that people learn safety, right? But yeah, I went to a when I was learning safety and still am right every single day. But I went to an OSHA presentation and there was a new I think it was a confined space. So maybe this was, I don't know, 2014, 15 around then. Uh, and the presenter on one um, slide, it just said read the rule with like 20 exclamation points. And I thought, this is great because the presentation was about the new rule, but that second hand, like, you should just read the rule. And I don't know how many people are actually reading the fall protection rule. They're not, you know, like a subpart M, you know, you're reading all these things, you know, in in construction, you should really know all these items. And and if you don't know it, you're just sort of in the kind of, sort of have got it category. But with compliance, although there are a lot of gray areas and evidentiary areas that we. Yeah,
Speaker 2
[00.30.11]
living doing those items. Um, some things are kind of black and white, right. If you you can't have this equipment without this type of protective measure. And, um, you need an expert who does it day after day after day after day. Get them in, get rid of these things that are easy to correct and just feel better about it.
Speaker 1
[00.30.33]
Yeah, and that's how I've always looked at it. I mean, OSHA has a website. You can plainly see a lot of the rules on there. And, and I've always felt if you break one of these or you don't follow these, OSHA is going to have no mercy because it's it's plainly right there. They they feel like you are just not compliance, not following the rule. But you're right. There's many gray areas. And so if you have a gray area then it's sometimes open for interpretation. I won't say open for interpretation, but that's where I don't want my opinion of how the gray area will be interpreted. I want somebody's opinion. Who has lived in that gray area with OSHA or against OSHA for a long time? Like you to kind of help me, help me navigate that because, uh, you know, you can't have rules for everything. I mean, the list would just be a mile long. There has to be some gray area there. So am I. Am I good on that? I mean, is that the right way to look at that? That hard and fast rule? You must follow gray area. I need to have the interpretation of somebody that's an expert who understands how OSHA may interpret that, because that could be completely different from how I do. Or my company
Speaker 2
[00.31.36]
used to do it. I mean, when you're reading a standard, it's out of line. I mean, it's not in any context, it's just a standard declaring what the rule is. Right. But then you have to apply it to a, you know, myriad of different job setups and job and job sites and job, you know, and etc.. So yeah, it's it it doesn't always apply directly. And, and one thing about OSHA, if you have an incentive to fight an OSHA citation, there's just so many defenses. It's not that attorneys said, let's make up these defenses. They just have existed. So, you know, you have that management didn't know about it. Or maybe it was employee misconduct. Even if a supervisor commits misconduct, you can say, well, you can't blame the company because it's a supervisor's fault. And you might think, well, wait a minute, the supervisor is the company, but still, it's an affirmative defense. There's just so many arguments you can make. And so when you talk of gray areas, we're thinking, are there valid arguments to make that OSHA can't win because they don't have this evidence that they need to support this element, or we have counter evidence that shows what they're saying is just not true. Yeah. And what happens oftentimes. Um, you know, OSHA shows up, an inspector will take some photos, and the inspector might think, hey, we have this case one. There's two people on the edge of a roof. I mean, this is and there's no protection. But what if it's a low slope roof less than 50ft wide, and one of them's a safety monitor watching the other worker. I mean, that's that's something that could. You could be in compliance. So it's just a lot of thoughts that go into this. I will say, if you're required to have a written program and you don't have the program. Not that easy. I mean, some things are. You need it. You don't have it. Like. Where the SDS. I have no idea. And I don't know what chemicals are present in my workplace. Well, you're going to have to learn that you need to do this stuff and get in compliance. No attorney will be able to think of something for that. You just you just don't have that program and you desperately, desperately need it. So that that's a big part of it too. Just recognizing what you need. But if you have it, maybe that's where sometimes a gray area comes into it. Yeah.
Speaker 1
[00.34.02]
Now you you're doing this all the time, right? You see OSHA cases and everything. So what are the what are the common gotchas? I mean, what are the things that just if OSHA shows up, you know, they're going to look for X, Y, and Z every time because sites just comment them all the time. OSHA is spring loaded to look at it, look for it, you know, what are the what are the red red flag gotchas that OSHA is always finding and reporting when they do inspections.
Speaker 2
[00.34.36]
So sort of a distinction, I would say between general industry and construction. Um, just starting with construction, it's all fall protection ladders and then working at a height without fall protection either harness if you're properly tied off with an anchor point, um, or, you know, sufficient guardrail or netting, although I almost never seen netting as a, uh, you know, as a fall protective measure. Um, training. You've got to have your employees trained not just on fall protection, but the work they're doing. There is a standard that really is a catch all for construction. 1926.21 B2, which is you've really just got to tell your employees about sites, um, site hazards and, and give them training on that. It's a real generic thing. So there's that not being trained for protection ladders. SDS safety data sheets. That is construction general industry across the board. That's a low hanging fruit. And then with general industry a lot of times it's respiratory protection. Got a lot of health hazards noise um and then lockout tag out machine guarding again has com. Uh forklift operators not being certified. Those are the big ones. And then fall protection too. I mean, if you've got a million miles of walking working surfaces in a plan and you're elevated any place, you need some sort of fall protection and that, you know, loading docks, that's a big thing, you know? Um. Yes, even the height differential when you have a drop back in. Those are the types of things that happen all the time.
Speaker 1
[00.36.26]
Now let me ask this question. One thing I've heard before is that and we talked about this earlier in the show where, okay, there's a specific complaint or there's a specific thing that an employee brought up about the site. And I've heard before, some people say, well, if OSHA shows up, they have to tell you that they are coming because of that complaint, and they want to go see the area where the complaint was at. And so some people say, well, if you walk OSHA through your entire building, if you have anything out in the open that is in violation, then that's fair game. But if you walk them sort of outside of your building through a side door directly to where the item is that they were supposed to come look at, then you you, then they weren't able to see anything along the way. Is that true? Is that a fallacy? Is that a thing or not? I've just heard of that before. But
Speaker 2
[00.37.22]
yeah, it is true, although there is an exception. So when the inspector shows up, you are well within your rights to ask. And. And I think the inspector would usually tell you why he or she is there? Is it a limited scope inspection or full or, you know, and comprehensive? If it's partial, it means there's been an employee complaint or there's been an injury. In that case, the inspection should be limited to those complaint items. You can get a copy of that actually, or where the injury happened. You know, any potential potentially related health and safety issues and hazards or violations. So you can be strategic. I mean, OSHA inspectors know there's this OSHA defense 101 handbook out there where these are the things that are talked about. So I lived in Buffalo for seven years, and I heard a story that there was some sort of inspection. It was a limited scope. And the employer made the Ocean Spectre walk around the perimeter of the building, like 18in of snow, to get to this back door to enter. Now, if you're doing that, you might have some real deep seated issues. Yeah, going to that length. And I would say that is a very, very bad look. Okay. It's slightly funny, but you know, it is a very bad look. So. There is some strategy involved. Some would say maybe it's gamesmanship. You know, if you're walking along a walking path to some area, you don't need all these doors open. So you can see inside there's oily rags and unlabeled containers of chemicals in there, you know, shut the doors. It's not part of the inspection. One of the inspections I did, I was walking along this path and I just, you know, I had to be a nosy inspector. That was what I was playing. You know, I looked in and I saw these drums and oily rags and I'm like, wow, this is this would be. I mean, this would be a feeding frenzy for OSHA if the inspector walked by, run to just shut the door. I mean, really wanted to just take care of that problem. I mean, that's the number one. But if you're talking about let's limit the scope to why the inspectors, there is not time to, you know, take the inspector of a tour and, and try to create goodwill by showing the inspector every single aspect of your work environment. If an inspector does see some other, you know, probable violation not related to the initial scope, then OSHA can expand the scope to that item. So, you know, if an inspector sees far across some PPE violation and the wearing of PPE could be anywhere in the facility, guess what? Now the inspectors like, infiltrated the front gates. The inspector is going to go everywhere and anywhere. And, you know, then it's just sort of a different dynamic at that point.
Speaker 1
[00.40.24]
Yeah, I think and that's something that people don't know. Right. I mean, you
Speaker 2
[00.40.28]
don't have to you can't blindfold the guy, right. And have them walk through your facility blindfold. You can't go to that level. But you're right. I think there's a little bit of gamesmanship there. You came to look at this. I know exactly where that is. I'll take you right there so that you can look at it. But I'm not going to open up the the vault for you to see everything that's in there, because I know where the bodies are buried. You know what I mean? Like, I know where the dirty is, and, you know, I want to I want to I want to fix that. So I think it's a gray area there where you kind of toe in that line of, you know, being being open and honest, but not revealing too much. And so I think that's good information and good knowledge for leaders out there to know that you don't have to you don't have to reveal everything to them if they come to look at one specific thing. But you do have to show them that one specific thing that they came to look at. You can't you can't you can't say no to that. It's that
Speaker 1
[00.41.25]
that true to like, you can't say, oh no, no, no, you come back next week type thing and shout
Speaker 2
[00.41.31]
out, you actually can say that. But you'd be denying concern. So they could say we had ones where, you know, we wanted to travel to the site. We said, why don't you come back on Thursday and it was Monday. We don't like asking that, but we thought, let's see. They might say, fine, we had a good relationship with the office. And they said, you know what? We're good. I'm like, what do you mean you're good? Like, no, no, we'll just we'll talk to you some other time. It's like, great, now I know they're getting a warrant and they're just going to come back at any time. So when you tell OSHA we don't consent. But will consent in three days, then you do run a risk. OSHA might agree with you, but they might go get a warrant and then they come back when they want. You know, it's unlikely they'll just show up on their terms. So it is sort of a one off type thing. I don't want to say it's a nuclear option, but you're obviously not going to keep OSHA out, um, forever just by denying consent that one time. Usually you can work it out. It's in everyone's best interest.
Speaker 1
[00.42.36]
Yeah, I think so. And I think, I mean, what we're talking about here, really, if you're really running a good operation at a good organization and shouldn't be at this level, right. So we should do a much better job of this ahead of time, right? I'm just saying for people to have the knowledge in case you, you know, they show up at your site, you panic, you don't know. Here's some things that you still can think about during that during that time just so that you're armed, right. Just so that people are are armed and know and you know, you have Mike Rubin on speed dial and you call them up. OSHA is in my lobby right now. What what what do I need to do? I mean, do you have people do that with you, too? I mean, if you have people call you and say, hey, right away, this this is happening, can you can you help me out?
Speaker 2
[00.43.21]
Yeah. I mean, that happened last week. That happens all the time. And and, you know, for us we just want to help. Right. So we know it is sort of a nerve wracking thing. OSHA's at the gate. They want to go in, but yet there's no supervisor there. There's no work going on that day. And you you you want to be want to cooperate, but sometimes you can't because there's no supervisor there or or or for some other reason. So, um. Yeah, I mean, that's and and you brought up a good point. It was sort of giving more context and explaining it's not about eating OSHA or just one up on OSHA or preventing those from doing their job. OSHA
Speaker 1
[00.44.03]
is seeking to hold
Speaker 2
[00.44.05]
companies by the law. They have to follow the law. We just want to make sure it's a fair inspection. We're fine with that. Just like earlier, I said. You know, when we prepare witnesses, we just want to make sure what they say is accurate. Same thing when it comes to an ocean inspection. We just want to make sure it's a proper scope and nothing goes off the rails. That's it. Okay, so. But we do. I mean, if you talk to an attorney who, you know, someone like myself, that all you do is handle OSHA matters. You understand the rights so well. So obviously if someone asks, what are my rights, we're going to start talking. And it might be a 40 minute answer.
Speaker 1
[00.44.45]
Yeah. Yeah. That's absolutely I think and that's really what it comes down to. People just people just want to know they're getting a square deal. Right? If we mess up, we will own it. But I don't want to I don't want somebody to get one over on me because they knew a lot more about it than I did, and they just kind of used that against me. And I think that's really what all people, all people can ask for. And this is just to be be treated fair, square at the end of the day. I was just just trying to look out for the safety of the employees. Right. I mean, just just like we're doing in the facilities that we run. And, you know, I think that's that's just the truth of the matter. People may have different opinions on that. I know there's different opinions, but at the end of the day, that's. That's why that's why they're there. So. Yeah. All right. So, Mike, where can people find out more about you? Now, I know we already talked about the the LinkedIn thing, but you have your own website, you're taking on clients and you're with the firm. So a lot of people find out more about you. And, uh, what what more resources might you have for people if they want to explore that?
Speaker 2
[00.45.46]
So of course, there's LinkedIn. Um, I work at Ogletree Deakins. They're one of the premier labor and employment firms representing management. Okay. So we have a really incredible OSHA defense practice. I'm just one member of our practice group. We've got about 30 attorneys who handle either 100% OSHA or at least OSHA, a significant portion of their practice. Um, but anyone can contact me. I mean, you can contact me on myself, myself on LinkedIn. I mean, um, we are in the response business when someone needs help. We have to respond right away. There is no oh, talk to my legal assistant and then checking the calls later in the day. You check your calls later in the day. You missed all the action. I mean, people need help right away, so, um. Yeah. Michael rubin@ogletree.com. Um, very easy to find. And I'm very responsive. Um, one thing I will say with clients, contacts, anyone who has questions, I'll tell you. You can text me, call, email if it's urgent. Text. Text is the way to go. Could even be on a trial. You're going to maybe notice that text. So, yeah, reach out and always happy to help.
Speaker 1
[00.47.09]
Yeah. All right I, I agree I love that Mike. So I mean to me it's just people like you are just great people for organizations to know. Right. Just to have have in your corner, having your bag of tricks, having your Rolodex, whatever you want to call it. I'm happy that that you're doing that. And I hope people hear this or see this and take advantage of that and reach out to you because, you know, it's a it's an area that makes people feel uncomfortable. But there's help out there, right? There's people out there, resources out there that can help help navigate that. And and that's that. And you're certainly one of those. So I appreciate it. And thanks for coming on the podcast. And uh, you know, maybe, maybe, uh, maybe we'll do it and do another one someday. What do you what do you think?
Speaker 2
[00.47.52]
Uh, yeah. I think we'll have a, uh, ten part series. We got part one done, and we'll get those nine other parts done. So big, big fan of the podcast. And so this was really I really enjoyed it. So I say that sincerely. It's really fun time for me. So thank you.
Speaker 1
[00.48.08]
Careful what you wish for Mike I gotta say that. Be careful. Be careful what you wish for on that. So thank you again, sir, I appreciate it. And, uh, best of luck to you for the for the rest of the year and next year.
Speaker 2
[00.48.19]
All right. Thank you. Ben. Take care.
Speaker 1
[00.48.22]
Thanks, Mike. All right, guys, that concludes today's show. Thanks again for Mike Rubin for coming on and talking about some awesome information that everybody wants to know. So please reach out to him, use him as a resource. Use him in your and your Rolodex and your email. You may definitely want to rely on him and lean on him one day. So thanks again for coming on the podcast. As the Warehouse Underground goes, like I say, please sign up for the community. If you have not done that. We have 220 members so far. So great networking in there. We have message boards inside the community, some cool live events that we've already done, and some more coming down the pike. You will want to be a part of that. If you are not, check out the Tiger Teen Show. We just released episode number six last week, which is wit, humor, and sarcasm as it relates to things going on out there in the warehousing and distribution center world. With my co-host Jordan. I think you guys will like that show for some comic relief if you're into that thing. And as this podcast goes, thank you again to Mike. I will see you guys next week for episode number 29. Thank you and God bless.
