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Employers frequently ask what they should do when an OSHA Certified Safety and Health Officer (CSHO) seeks to interview a company witness. While counsel is always recommended in preparing employees for such interviews, the following are general considerations that should be considered when preparing company employees for their interaction with OSHA:

  1. The interview is not OSHA’s “right,” but instead, is conducted at the employee’s election and consent. Employees should be made aware of this fact and that the employee has the right to decline giving an interview.
  2. The witness can request the presence of counsel or a colleague during the interview. The CSHO may resist, especially if the employer is providing counsel at no cost, but the witness must stand firm in stating their desire to have counsel present. If the CSHO or someone else with OSHA objects to a company-provided lawyer on the basis of a potential “conflict of interest,” the witness should inform OSHA that the existence of a potential conflict is for them to raise, not OSHA.
  3. Employers can insist that management and supervisory employees have another member of management or a company-provided attorney present during the interview.
  4. If the witness elects to be interviewed, they should always tell the truth! An employee cannot be terminated, discriminated against or even threatened for talking to OSHA. An employee can, however, face criminal charges if they provide false information to OSHA.
  5. The witness can request that the interview not be recorded or that they be allowed to record the interview as well.
  6. The witness does not have to sign anything, especially a statement prepared by the CSHO. In fact, signing such “statements” is usually never a good idea as they are often one-sided, they often leave out facts and statements that do not support OSHA’s case, they often do not capture everything discussed during the interview, and the statements tend to include many facts and statements taken out of context. If the witness elects to sign a statement, they should review and make sure the statement is 100% accurate and complete.
  7. The witness should make certain that they understand the question being asked before answering. The witness should be prepared to look for imbedded inaccuracies in leading questions, such as, “You know we are here today because of a health and safety violation, correct?”
  8. Witnesses should be cautioned against guessing or speculating when giving an answer.
  9. All questions should be answered directly and concisely, without meandering or rambling.
  10. Every person interviewed should keep in mind that the typical product of an OSHA investigation is a citation(s) and monetary penalty(ies). OSHA rarely looks to exonerate, but instead, OSHA generally desires to secure evidence to support issuing citations.
  11. All witnesses, especially those in management and supervision, should avoid making admissions and agreeing to anything that is not 100% correct.
  12. Witnesses should keep in mind that they can ask the investigator questions. If there is a question as to where the interrogation is going, the witness should ask and demand that the investigator be open and honest with them.
  13. Silence is not the enemy. Rarely do people get in trouble for not talking. If there are long pauses or “staring contests” the witness should refrain from talking just to break the silence. This is not a conversation over a cup of coffee with an old friend. Every question is being asked for a reason.
  14. If an answer is not known, the witness should tell the CSHO that he or she does not know the answer to the question. There is nothing wrong with telling the investigator “I don’t know” or “I don’t remember,” assuming that is the truth.
  15. If the same question is asked multiple times, witnesses should stand firm in their answer and not give in to repeated questions. If the witness is subject to abuse, intimidation, threats, coercion, or any other tactic that makes the employee uncomfortable, it should be immediately documented and reported to the area director or regional office for OSHA.
  16. If the questioning leads one to think they are being targeted for a criminal investigation, the Fifth Amendment should be asserted. Since these interviews are “non-custodial” a statement can be used against the witness without a Miranda warning.