September 2018

by Julie A. Pace, The Cavanagh Law Firm

Employers are subject to inspection for compliance with OSHA standards. Either federal OSHA or state OSHA programs conduct the inspections. Federal OSHA covers Indian lands and military. Construction companies generally work with compliance officers, but industrial hygienists are involved for silica testing or hearing testing.

OSHA may target particular employers for inspection:

• due to their relatively high workplace injury and illness rates;
• based on the particular industry in which they are engaged;
• based on specific complaints about potentially unsafe conditions;
• in response to a report of an accident or fatality at a worksite; or
• simply as a routine programmed inspection.

OSHA also looks to the Dodge report for ongoing construction and will send inspectors. OSHA compliance officers will conduct an opening conference. The employer can ask to have the company’s safety manager come to the jobsite, and OSHA generally will wait for up to an hour, unless an imminent danger exists.

An employer has the right to require a search warrant. Most employers, however, believe that requiring OSHA to obtain a search warrant and to return later will cause the OSHA inspector to take a much harsher approach to the inspection. Most companies try to work through the inspection in a cooperative manner. The company should have identified trained supervisors or safety manager in advance to accompany the OSHA compliance officer.

Initial Investigation

Usually the compliance officer requests a copy of the OSHA Form 300 log, which can identify hazards for the inspection. Compliance officers may take photographs and/or videotape during the inspection, and the company may want to do that as well so it has a record. Trade secret information should be addressed and restricted at the outset.

Because the compliance officer may identify alleged violations during the inspection, it is useful for the employer to have someone at hand to correct the alleged violations if it can be corrected on the spot. Immediate cooperation may persuade the compliance officer not to issue a citation or to issue less punitive citations.

A union representative has the right to attend the opening and closing conference of the inspection. Employees have the right to speak to compliance officer privately. Employee interviews are voluntary. It is a good idea for the company to meet with employees prior to their interviews to explain the context of the interview and review safety training provided to the employees. Legal counsel can be present for interviews of supervisory positions (e.g., foreman or superintendents). OSHA may seek to tape record employee interviews, but companies generally do not consent to tape recording of supervisor interviews.

Closing Conference

The compliance officer will conduct a closing conference at the end of the inspection. Avoid making admissions during the inspection. The employer should take notes of comments made by the compliance officer. The employer should keep copies of documents provided to the compliance officer. The employer should also note whether employees interviewed spoke in a foreign language and identify contact information of translators.

The company’s designated OSHA walkaround representative should prepare a written report. Companies may think an inspection has gone well, only to be surprised months later when they receive a citation. Comments made during the inspection by the compliance officers may be helpful in defending any citation(s) issued. A timely prepared report is helpful.

OSHA Citations

Contents of Citation

Employers must post a citation near the place of the violation. Citations contain:

1. a particular description of the violation, including the standard or regulation allegedly violated: if issued under the general duty clause, the citation must be based upon specific evidence that the employer had actual or constructive knowledge of a hazard and intentionally disregarded or was indifferent to employee’s health or safety;
2. a reasonable time period for correcting the violation;
3. notice to the employer that it may request a hearing to contest the citation;
4. the required corrective measures with particularity so that the employer will know the exact nature of the condition that is allegedly a violation and the exact steps necessary to eliminate the hazard. Spelling out the violation allows the employer to evaluate whether to contest the citation and helps avoid the possibility that future violations are deemed willful or repeat violations; and
5. it does not constitute a finding that the employer violated OSHA unless the employer fails to contest the citation.

Penalties and Fines for Violations

For 2018, the fine schedule is up to:

1. $129,336 per violation for willful or repeat serious violations;
2. additional $25,000 for willful or repeated violations resulting in death or permanent disability;
3. $12,934 for a serious violation or non-serious citation or failing to post citation;
4. $12,934 per day during the time that the violation continues after abatement should have occurred.

One way to prevent a repeat citation, of course, is to contest and defeat the first citation. Criminal willful violations also can be issued.

OSHA citations can be significantly detrimental to companies for additional reasons such as:

1. If someone other than the company’s own employee is injured, an OSHA citation may be used against the company in personal injury lawsuits. Even if the OSHA citation was not due to the same hazard that caused the accident, a jury could conclude the company was at fault because of the OSHA citation. Workers’ compensation can be the exclusive remedy between the injured worker and the company. For general contractors, however, they can get sued separately if not an additional insured under a subcontractor’s policy;
2. A record of OSHA citations may cause a company to lose bids or prospective contracts for government work;
3. OSHA citations adversely impact the company’s public image or reputation; or
4. Union organizers may use OSHA citations against the company.

Contesting Citations/Defenses

Isolated Incident or Employee Misconduct,

One of the most common OSHA citations defenses is referred to as the isolated occurrence or the employee misconduct defense and requires showing that employer:

1. had an established work rule to prevent the violation, and
2. adequately communicated the rule to its employees, and
3. took reasonable steps to discover the violation, and
4. enforced work rule when violated.

All of the elements must be shown. So, for example, even if an employer has a safety rule that adequately addresses a particular safety standard, if needs to show enforcement.

Additional Defenses

Superintendents for general contractors must make regular and frequent inspections, not walk away from safety violations, and have an overall good safety program. Evidence of the following can provide additional defenses:

1. following the standard as interpreted by OSHA would subject an employee to a greater hazard;
2. compliance with the standard was not technically feasible;
3. technical or procedural barriers to compliance;
4. violation of due process; or
5. exemption from coverage.

Settlement of Citations

OSHA encourages informal settlement conferences. If an informal settlement is not reached, it is imperative that the company must preserve its rights by submitting a notice of contest of the citation within 15 days. Settlement generally is still be an option even if a company does not participate in the informal settlement conference.

A good practice is to obtain a copy of the OSHA file before the settlement conference so companies can prepare and have a meaningful and accurate discussion to try and resolve the matter. Because of the time it takes to obtain the OSHA file, many times the settlement discussion occurs after the 15 days so the notice of contest is filed.

During settlement, OSHA may amend or reclassify the citation from serious to non-serious, reduce penalty, or withdraw a citation. Many times settlement may include enhancements with the company agreeing to take actions that improve safety within the company cited or among the industry. These enhancements help leverage OSHA safety for a greater impact.

Formal Hearings

OSHA citations are contested at formal hearings. Employers must submit a written request to contest and seek a hearing within 15 days after receiving the citation, or it becomes final. The 15 days to contest is absolute, regardless of whether the employer missed the deadline due to inadvertence.

The parties can request a pre-hearing conference to simplify issues, reach agreements regarding the admissibility of certain facts, identify number of witnesses, and handle any other matters. The pre-hearing conference can be a useful device for learning information about the nature of the allegations against the employer and pinning down the agency to a particular theory of the alleged violation.

If authorized by the Tribunal, an employer may file motions to dismiss or motions for summary judgment. The parties may exchange discovery, including depositions, interrogatories and requests for production of documents. Discovery is another useful technique for committing OSHA to specific facts and theories upon which the citation is based. Other times, it may be most efficient to go to the hearing without much formal discovery. The company must decide whether a safety or technical expert is needed.

At the hearing, the employer should make use of any notes, photographs, etc. Sometimes OSHA issues a citation regarding the same matter the compliance officer was complimentary so this is helpful in cross-examination.

If the Tribunal allows, the parties may submit proposed findings of fact, conclusions of law, and supporting rules and cases. A decision of the Tribunal can be appealed to an OSHA Review Board. The decision of the Review Board may be appealed.

Julie A. Pace is a senior member with The Cavanagh Law Firm, Phoenix, Ariz. Pace concentrates her practice in the fields of employment law, immigration compliance, OSHA, health care, and construction. She defends claims of sexual harassment, employment discrimination, retaliation, whistleblower, and wrongful discharge, and against charges by the EEOC and ACRD. She handles matters involving OSHA, ICE, OFCCP, DOL, NLRB, Davis-Bacon, FAR, ADA, FMLA, and wage and hour laws, audits and issues. Pace also handles issues involving the Affordable Care Act and addresses the changes and options it presents to companies. Her Davis-Bacon and prevailing wage practice includes counseling and training on state and federal prevailing wages and benefits requirements, coverage and applicability of prevailing wage laws, coverage exemptions, worker classification and pay issues, addressing wage determinations, wage surveys, and representation of employers before the Department of Labor Wage and Hour Division and similar state agencies. She can be reached at (602) 322-4046 or jpace@cavanaghlaw.com.

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