In the last six years, the U.S. Occupational Safety and Health Administration (OSHA) has substantially increased its citation of willful and repeat violations and initiated its aggressive “Severe Violator Program.” As a result, employers’ self-auditing efforts—which are designed to identify and address compliance issues before OSHA does—have become increasingly important. Unfortunately, OSHA has heightened the risk of self-auditing by more frequently seeking audit results during inspections. When the employer has been unwilling to voluntarily produce these materials, OSHA has not hesitated to issue a subpoena.
The most valuable tool now available to employers in their efforts to resist OSHA’s demands for audit materials is the attorney-client privilege. To appreciate the value of the privilege, it is important to consider OSHA’s position on self-auditing. In 2000, when OSHA adopted its policy on employer self-audits, it recognized that auditing is a worthwhile activity and represented that OSHA would “not use such reports as a means of identifying hazards upon which to focus inspection activity.”
