Below, our experts weigh in with simple, actionable tips that can help you craft your legal strategy and directly affect the outcome of your OSHA interaction. These attorneys have years of experience in OSHA law, with a broad range of expertise in many industry verticals.
In the end, the employer and OSHA have the same goal – employee safety. But never forget that the OSHA inspector is not your friend when he or she shows up for an inspection. All too often, I see employers rush to appease the inspector, hoping that their willingness to produce information and otherwise comply with the inspector’s demands will somehow convince OSHA that citations are unnecessary. After the inspection, I hear that the inspector was “friendly” or “reasonable,” or suggested that he or she would overlook some items simply because the employer was so helpful during the inspection. The employer is invariably shocked when the citations arrive, left to wonder how the inspector could be so cruel. Don’t bite on the inspector’s “reasonableness.” Always be upfront, but think carefully about what you’re turning over to OSHA, make sure your management-level witnesses understand the significance of what they’re saying during interviews, and get your OSHA counsel involved early to act as the buffer between you and OSHA. OSHA will respect your rights. But you need to stand up for yourself first.
Labor and Employment Partner
Los Angeles, CA
Be careful before agreeing to an OSHA citation during settlement negotiations. It may be tempting to accept OSHA’s initial settlement offer of a penalty reduction and move on. That decision, however, could have lasting implications for your organization and result in a Repeat or Willful citation with much higher penalties in the future if OSHA discovers the same violation at the same location or any of your other locations within a five year period. It is OSHA’s policy to use an organization’s citation history to support a Repeat and Willful classification, both of which can come with penalties as high as $70,000. Be sure to consider your exposure and risk to receiving a similar citation at the same location or another location in the future before signing on the dotted line. Consult your attorney about your risk and whether OSHA’s settlement offer is the best option for your organization.
Don’t assume OSHA is right! Just because OSHA issues a citation and makes an allegation that a violation has been committed does not make it so. Check the cited standard and make sure it applies to your company’s work, your facility and your facts. For example, OSHA may cite an employer under 1910.22(b)(1) for having an aisle or passageway being obstructed and not kept clear. However, a closer look at the cited standard makes clear that the standard applies to aisles and passageways where mechanical handling equipment is used. If the cited aisle or passageway is not one where mechanical handling equipment is used, the standard does not apply. Read cited standards carefully, check for exceptions and if necessary look for definitions of words in the standard, sometimes the definition of a word or phrase may help clarify the application of the cited standard. If you have concerns about whether a cited standard applies, discuss them with OSHA during the informal conference. But don’t just assume the standard applies because OSHA cited it.
OSHA has begun issuing more and more citations under the General Duty Clause otherwise known as Section 5(a)(1) of the Occupational Safety and Health Act. These types of violations require a higher level of proof for the OSHA. In particular, OSHA must prove that there is a recognized hazard by either the employer or industry and a feasible abatement method. Many times there are very good arguments against OSHA being able to prove one or both of these elements of OSHA's case. You should always carefully evaluate these types of citations prior to accepting them.
You have only 15 working days (essentially 3 weeks) to settle or contest OSHA citations. No extensions are possible. The clock starts ticking when someone at your workplace signs for the certified mail from OSHA. If someone in the mailroom or front desk signs, but it takes 10 days to reach the desk of management, you have lost valuable time. Make sure everyone knows to get certified mail from OSHA to management immediately. Then involve your OSHA attorney right away. Time is often needed to prepare for the settlement conference or to evaluate the strength of arguments for a contest.
Regardless of whether you believe you have been cited justifiably or wrongly, you need to take action and do your best to eliminate the possibility that the alleged hazard could cause an employee injury. (1) Promptly investigate and determine the extent of the allegedly unsafe condition. (2) Keep an open mind when considering possible abatement methods. (3) Consider hiring an expert in the field to conduct the investigation or audit and make abatement recommendations. (4) Implement a documented plan of abatement and periodic review of compliance. By taking a proactive approach to your citation, you may find that OSHA will be more accommodating and that there are relatively easy ways to make even a safe workplace safer.
You’ve received an OSHA citation. Now what? For starters, you must give the citation your immediate attention. This is because you generally will have three weeks, at most, during which time you may appear at an informal conference with OSHA and/or formally contest the citation. Either way, your time to preserve your rights, such that you can argue your defenses to OSHA, is rather short. Often, one of the best defenses – sometimes your ONLY defense – is the unpreventable employee misconduct defense. Importantly, in order to establish this defense, you need to do things before – NOT after – your receipt of a citation. For example, before any proverbial “knock on the door” by OSHA, take the time to identify the hazards your employees are most likely to face, create written safety rules addressing the hazards, distribute the written safety rules to all employees, provide training, create a written disciplinary policy, conduct audits, and encourage communication. Keep written records of everything and then, after your receipt of a citation, give your counsel a call to address potential defenses and analyze your next steps.
Mistakes happen. Human error is inevitable. And when a mistake is made on the job which results in a workplace incident or accident, you need to be in the best position possible to defend any resulting OSHA citations. One of the most frequently cited affirmative defenses to an OSHA citation is unpreventable employee misconduct. In order to establish this affirmative defense, an employer must demonstrate that it: (1) established a work rule adequate to prevent the violation; (2) effectively communicated the rule to employees; (3) established methods for discovering violations of work rules, and yet did not know about an isolated violation of the work rules; and (4) established effective enforcement of the rule when violations were discovered. Most employers establish applicable safety rules and conduct employee trainings. However, in my practical experience, the biggest challenge employers face is demonstrating the last two elements, particularly on the documentation. To be successful in using this defense, an employer must actively supervise employees to ensure compliance with safety policies, discipline those employees who fail to do so, and proactively document each of these occurrences. Establishing and documenting each of these four elements will not only put you in a better position to defend your company legally, but also help create a safer working environment for your employees.
Employers need to be
aware that OSHA considers a number of common employment practices to be violations of employees’ whistleblower rights. Things like mandatory post-injury drug testing without reasonable suspicion; time limits for reporting injuries and illnesses (must report before end of shift); remote reporting of injuries and illnesses (to some centralized location); disciplining employees for injuring themselves (violating safety rules); disciplining employees after X number of injuries; disciplining employees for vague safety violations (lack of situational awareness); and repeat offender programs are considered violations of Section 11(C) of the OSH Act and expose the employer to significant monetary penalties.
Late last year, OSHA was authorized to increase its penalties by almost 80 percent. By this summer, OSHA will likely decide to increase the maximum penalty for serious infractions from $7000 to $12,600. The penalty for willful or repeat violations would increase from $70,000 per infraction to $126,000. The impact of these increases will be significant since OSHA typically cites a business with more than one violation. As penalties increase in magnitude, it will become increasingly important for business owners to find experienced OSHA counsel and contest or challenge proposed citations and penalties. No longer will it be a good practice to simply contact your corporate counsel. Experienced OSHA lawyers understand the detailed regulations and OSHA’s practices and can often negotiate lower penalties and much better abatement terms for the employer. A good place to find such counsel is by searching the internet for "OSHA Defense Lawyer" and your city, or through local industry trade groups in your line of business.
OSHA has recently become a much more powerful agency than it ever has been before. In addition to a likely 80% increase in penalties, OSHA has entered into an agreement with the Department of Justice encouraging inspectors to look for workplace safety violations when investigating environmental incidents. In the past, there was very little criminal enforcement of workplace safety violations because OSHA violations are classified as misdemeanors – OSHA generally found that it was not a good use of resources to prosecute. Under the terms of the agreement with Department of Justice, workplace safety violations uncovered during environmental investigations will be treated as felony environmental violations for purposes of criminal prosecutions. Now more than ever, employers should be consulting with their OSHA counsel as soon as OSHA or the EPA show up. If an OSHA violation is found, the employer is not just facing huge penalties but a prison sentence as well.
Because the time to respond to OSHA citations is limited, and because initial response (or failure to respond) to a citation can find an employer in the present or future actions, it is important to have in place in advance of any citation a protocol
for response. Employees should know to whom to forward any communications from OSHA. The employer's OSHA compliance officer should immediately begin gathering documents, interviewing employees, and conducting regulatory research (or retaining counsel to do so). Don't assume that the citation is correct. OSHA frequently makes mistakes of fact or law in issuing citations. The administration is made up of human beings after all. In negotiating a settlement if that is what the employer ops to do, it can be helpful to request that the settlement agreement not include any admission of liability. The employer must make certain that it complies with all procedural requirements and deadlines for filings if it decides to challenge the citation.
When defending an OSHA citation, ample documentation is needed to support your defense. The most successful and most often utilized defense to an OSHA citation is unpreventable employee misconduct. To prove the defense, a contractor must demonstrate that it had safety procedures and guidelines in effect at the time of the accident that governed the incident, that it conveyed those rules effectively to the cited employee(s), that it took steps to discover and correct safety violations, and that the contractor has a history of enforcing its safety protocols through punishment in the form of oral or written reprimands, suspension and termination.
Too often, employers balance only the proposed penalty (or an offer from OSHA to reduce the penalty) against the cost of challenging a citation, when deciding whether to contest. I recommend employers look beyond, or even ignore altogether, the proposed penalty, and consider how the citation may affect the company in other, much more significant ways; e.g.: (1) expensive and anti-competitive abatement; (2) risk of Repeat violations at the same or sister facilities with 10x higher penalties; (3) disqualification from private or government contracts; (3) affect personal injury or wrongful death civil lawsuits; and (4) increased insurance premiums or loss of coverage. On balance, with all of these other risks and costs, it is rarely the right economic choice to accept an OSHA citation as-issued.
It is terribly important to keep organized safety records for production to OSHA when the company receives a citation. Do this, and you may have a winning unforeseeable employee misconduct defense. For contractors not looking to proceed to an administrative hearing, producing these documents at an informal conference may help solicit an acceptable settlement proposal from OSHA. Contractors looking to settle a citation should consider seeking a settlement that minimizes the likelihood of a repeat violation in the future.This may involve asking OSHA to reclassify the citation to a standard different than as alleged in the citation. Consider whether a training violation provides the least likelihood of a repeat violation, when you do actually provide the training.
Following the receipt of any OSHA citation, an
employer has the opportunity to attend an informal conference. During the informal conference, it is very important that the employer advocate for the company and carefully listen to all the allegations presented. OSHA Area Directors may decide to provide the photos and facts they claim support the citation during this meeting. It is advisable to make detailed notes of all the evidence OSHA presents. Additionally, it is vital the employer remember that despite the informal setting, he or she is voluntarily attending a legally binding interview with government inspectors. This is not the time to make any admissions, concede on any points, or acknowledge the company has violated any rules or regulations.
OSHA Area Directors (and their designees) often bully employers at Informal Conferences with a bureaucratic “take it or leave it/this is what we will do for you” settlement offer. This may be true notwithstanding valid employer concerns and defenses involving the citations, citation description and classifications (particularly if associated with an employee injury), abatement methodology and time frames, penalties, settlement agreement language, and related issues. Recent experience has found that a reasonable compromise that cannot be achieved at an Informal Conference is miraculously achieved shortly thereafter upon the filing of a Notice of Contest to the Review Commission -- Area Offices are reluctant to ship a file to the Department of Labor’s Solicitor’s Office as there is agency pressure to resolve files at the Area Office level so that it can move on to the next employer. Thus, while there are occasions a Notice of Contest is filed in order for the employer to have its day in court, it also can serve as a final “nudge” to settlement.
Employers need to understand that there are significant changes to OSHA's penalty policy that will occur in 2016. Penalties are going up significantly, likely by almost 80 percent. Since OSHA has become more focused on enforcement and seeking higher penalties, employers who receive citations need to carefully analyze the citation to ensure that it is both factually and legally accurate. If it is not, then the employer should seek to have the citation withdrawn, first at an informal conference with the local OSHA Area Office and then through a contest proceeding if the informal conference is unsuccessful. Simply accepting an OSHA citations as a cost of doing business is not a wise business practice because it may result in "repeat" or "willful" citations in the future, which frequently run well into six figure penalties. Employers should consult with an attorney who regularly practices OSHA law regarding their rights and defenses when an OSHA citation has been received.
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