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OSHA by William Brewster - Copyright Protected

OSHA by William Brewster - Copyright Protected

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Sections

  • INTRODUCTION
  • SPECIAL NOTICESFOR 2004
  • How to Use the Federal Manual
  • OVERVIEW OF OSHA
  • Safety Rules Applied
  • Requesting Variances
  • Ergonomic Rules
  • EMPLOYER RIGHTS
  • Constitutional Protections
  • Probable cause for OSHA inspections
  • The scope of the inspection
  • Warrants
  • Factors For Seeking a Warrant
  • Factors Against Seeking a Warrant
  • Consent to Warrantless Inspections
  • Consent by Others
  • Warrant Exceptions
  • An Emergency
  • Open Fields & Outdoor Projects
  • Plain View & Surveillance
  • Challenging Warrants
  • INSPECTION PROCEDURE
  • Presentation of Credentials
  • Opening Conference
  • Employer Representative’s Right of Accompaniment
  • The Walk-Through and Collecting Evidence
  • Closing Conference
  • ENHANCED ENFORCEMENT PROGRAM(EEP)
  • EMPLOYER STRATEGIES
  • Before The Inspection
  • At the Beginning of the Inspection
  • During the Inspection
  • Upon Receiving the Citation
  • At The Informal Conference
  • Disgruntled Employees, Labor Disputes & Retaliation
  • THE CITATION
  • Abatement
  • Petitions for Modification of Abatement (PMAs)
  • VIOLATIONS
  • Classifications
  • De Minimus
  • Other ThanSerious
  • Serious
  • Repeat
  • Failure to Abate
  • Willful
  • General Duty Clause Violations
  • Multi-Employer Situations
  • OSHA’s Multi-Employer Citation Policy
  • CIVIL PENALTIES
  • Penalty Factors
  • Gravity of the Violation
  • Gravity-Based Penalty (GBP)
  • Penalty Reductions
  • Size of the Employer
  • Good Faith
  • History of Previous Violations
  • Calculating Repeat & Willful Penalties
  • Penalties for Repeat Violations
  • Penalties for Willful Violations
  • Combining & Grouping Violations
  • Combined Violations
  • Grouped Violations
  • Egregious Penalties
  • CRIMINAL PENALTIES
  • Willful violation causes the death of an employee
  • Giving advance notice of an inspection
  • False statements, representations or certifications to OSHA
  • Forcibly Resisting or Assaulting a Compliance Officer
  • CONTESTING A CITATION
  • Filing the Notice of Contest
  • Informal Conference
  • Case Referral & Pleadings
  • Hearing Procedure
  • EMPLOYER DEFENSES
  • Attacking OSHA’s Burden of Proof
  • Applicability of the Standard & Non-compliance
  • Employee Exposure
  • Employer Knowledge
  • Procedural Defenses
  • Defective Inspection
  • Defective Citation
  • Affirmative Defenses
  • Employee Misconduct
  • Infeasibility/Impossibility
  • Greater Hazard
  • Preemption by Another Federal Agency
  • OSHA v. U.S. Military, USPS, & Others
  • LOSS PREVENTION SERVICES
  • Services Provided by OSHA
  • OSHA’s Consultation Service
  • VPP Program
  • SHARP Program
  • OSHA’s Strategic Partnership Program (OSPP)
  • Services Provided by Others
  • Workers’ Compensation Carriers
  • Independent Safety Consultants
  • GLOSSARY

OSHA

Inspections
and

Defenses
OSHA 2004
William M. Brewster, M.I.M., J.D.

OSHAGUIDE.COM

Table of Contents
INTRODUCTION.................................................................................................... 1 SPECIAL NOTICES FOR 2004.................................................................................. 2 NEW OSHA 300 FORM EFFECTIVE JANUARY 1, 2004 ............................................... 2 How to Use the Federal Manual.............................................................................. 3 OVERVIEW OF OSHA ............................................................................................ 5 SAFETY RULES APPLIED........................................................................................ 5 REQUESTING VARIANCES ...................................................................................... 6 ERGONOMIC RULES ............................................................................................. 6 EMPLOYER RIGHTS.............................................................................................. 8 CONSTITUTIONAL PROTECTIONS ............................................................................. 8 Probable cause for OSHA inspections .......................................................... 8 The scope of the inspection.......................................................................... 8 WARRANTS ........................................................................................................ 9 Factors For Seeking a Warrant .................................................................. 10 Factors Against Seeking a Warrant ............................................................ 10 Consent to Warrantless Inspections .......................................................... 10 Consent by Others ...................................................................................... 11 WARRANT EXCEPTIONS ....................................................................................... 11 An Emergency............................................................................................ 11 Open Fields & Outdoor Projects..................................................................12 Plain View & Surveillance...........................................................................12 CHALLENGING WARRANTS ...................................................................................13 INSPECTION PROCEDURE ...................................................................................13 PRESENTATION OF CREDENTIALS ..........................................................................13 OPENING CONFERENCE....................................................................................... 14 EMPLOYER REPRESENTATIVE’S RIGHT OF ACCOMPANIMENT ..................................... 14 THE WALK-THROUGH AND COLLECTING EVIDENCE ..................................................15 CLOSING CONFERENCE ....................................................................................... 16 ENHANCED ENFORCEMENT PROGRAM (EEP) ................................................... 16 EMPLOYER STRATEGIES .................................................................................... 18 BEFORE THE INSPECTION .................................................................................... 18 AT THE BEGINNING OF THE INSPECTION ................................................................ 19 DURING THE INSPECTION .................................................................................... 20 UPON RECEIVING THE CITATION ...........................................................................21 AT THE INFORMAL CONFERENCE ...........................................................................21 DISGRUNTLED EMPLOYEES, LABOR DISPUTES & RETALIATION ...................................21 THE CITATION .................................................................................................... 22 ABATEMENT ..................................................................................................... 23 PETITIONS FOR MODIFICATION OF ABATEMENT (PMAS) .......................................... 23 VIOLATIONS ....................................................................................................... 24 CLASSIFICATIONS .............................................................................................. 24 De Minimus .............................................................................................. 24 Other Than Serious ................................................................................... 25 Serious ..................................................................................................... 25 Repeat ...................................................................................................... 25 Failure to Abate......................................................................................... 26 Willful ...................................................................................................... 26 GENERAL DUTY CLAUSE VIOLATIONS .................................................................... 27 MULTI-EMPLOYER SITUATIONS............................................................................ 28 OSHA’s Multi-Employer Citation Policy ..................................................... 28

CIVIL PENALTIES ............................................................................................... 29 PENALTY FACTORS ............................................................................................. 29 Gravity of the Violation ............................................................................. 30 Gravity-Based Penalty (GBP) ......................................................................31 PENALTY REDUCTIONS ........................................................................................31 Size of the Employer...................................................................................31 Good Faith .................................................................................................31 History of Previous Violations ................................................................... 32 CALCULATING REPEAT & WILLFUL PENALTIES ....................................................... 32 Penalties for Repeat Violations.................................................................. 32 Penalties for Willful Violations.................................................................. 33 COMBINING & GROUPING VIOLATIONS .................................................................. 33 Combined Violations................................................................................. 33 Grouped Violations ................................................................................... 34 EGREGIOUS PENALTIES ...................................................................................... 34 CRIMINAL PENALTIES........................................................................................ 37 Willful violation causes the death of an employee ...................................... 37 Giving advance notice of an inspection...................................................... 37 False statements, representations or certifications to OSHA ...................... 37 Forcibly Resisting or Assaulting a Compliance Officer ............................... 38 CONTESTING A CITATION .................................................................................. 38 FILING THE NOTICE OF CONTEST .......................................................................... 38 INFORMAL CONFERENCE ..................................................................................... 39 CASE REFERRAL & PLEADINGS ............................................................................. 39 HEARING PROCEDURE ........................................................................................ 40 E-Z TRIAL ........................................................................................................ 41 EMPLOYER DEFENSES ....................................................................................... 42 ATTACKING OSHA’S BURDEN OF PROOF ............................................................... 42 Applicability of the Standard & Non-compliance ........................................ 42 Employee Exposure................................................................................... 43 Employer Knowledge ................................................................................ 44 PROCEDURAL DEFENSES ..................................................................................... 44 Defective Inspection.................................................................................. 44 Defective Citation...................................................................................... 46 AFFIRMATIVE DEFENSES ..................................................................................... 47 Employee Misconduct ............................................................................... 47 Infeasibility/Impossibility ......................................................................... 48 Greater Hazard ......................................................................................... 49 Preemption by Another Federal Agency ..................................................... 49 OSHA v. U.S. Military, USPS, & Others ................................................................. 49 LOSS PREVENTION SERVICES............................................................................ 50 SERVICES PROVIDED BY OSHA............................................................................ 50 OSHA’s Consultation Service..................................................................... 50 VPP Program ............................................................................................ 50 SHARP Program ....................................................................................... 50 OSHA’s Strategic Partnership Program (OSPP) ..........................................51 SERVICES PROVIDED BY OTHERS ...........................................................................51 Workers’ Compensation Carriers ...............................................................51 Independent Safety Consultants .................................................................51 GLOSSARY .......................................................................................................... 52

. It addresses the following jurisdictions regulated by federal OSHA including Puerto Rico and the Virgin Islands**: Alabama Arkansas** Connecticut** Colorado Delaware Wash.I. This concise manual discusses employer rights. INTRODUCTION OSHA compliance is becoming more difficult and employers must devote more of their resources to deal with this issue. Florida Georgia Illinois Idaho Kansas Louisiana Maine** Massachusetts Mississippi Missouri Montana** Nebraska New Hampshire New Jersey** New York** North Dakota Ohio Oklahoma** Pennsylvania Rhode Island South Dakota Texas West Virginia Wisconsin ** State and local government excluded The author is William M. JD. M. Brewster. MIM. J. strategies and defenses during federal OSHA inspections. Copyright 2003 Page 1 . The federal OSHA manual applies to most of the United States. Brewster. Condor OSHA Guides THIS MANUAL DOES NOT REPLACE LEGAL ADVICE. This problem is compounded by the fact that failure to comply can result in civil and sometimes criminal penalties. D. Accordingly. His OSHA manuals have been featured on amazon. penalties. He currently practices law in Oregon and Washington.OSHAGUIDE. citations and contains a glossary of common OSHA terms.com and they are currently used as a resource across the United States and internationally. He is recognized as an authority on OSHA enforcement and as an attorney he has defended employers in some of the nation’s largest OSHA citations. This manual is updated every year to reflect changes in the law. employers are demanding to know their rights and responsibilities. CONTACT AN ATTORNEY IN YOUR AREA IF YOU REQUIRE LEGAL ASSISTANCE.C.D. It explains violations.M.COM OSHA Inspections and Defenses OSHA 2004 William M.

1/2004) located on the form next to the form number. Page 2 .COM SPECIAL NOTICES FOR 2004 New OSHA 300 Form Effective January 1.gov. The new form has the date of the revision (rev. Employers must begin using the new OSHA 300 Form on January 1.gov/recordkeeping/OSHArecordkeepingforms. employers should use the old OSHA 300A Summary Form (without the hearing loss column) to post as required in February 2004. However. The new 300A form that includes the hearing loss column should be used to post in February 2005. There is no longer a column for work-related injuries associated with ergonomic factors.gov/recordkeeping/new-osha300form1-1-04.osha.. 2003 and 2002 injuries and illnesses should be recorded on the forms for those years). OSHA directs that employers still record ergonomic-type injuries in either the “injury” or “all other illness” columns. The forms for 2003 and 2002 will continue to be available on OSHA's website at www.e. www. You can go to www.osha. including the addition of an occupational hearing loss column and more clear-cut formulas for calculating incidence rates. The revised form includes various changes.pdf for the new form. 2004. 2004 ** The following information is quoted directly from OSHA’s web site.osha. Injuries and illnesses for years prior to 2004 should continue to be recorded on the appropriate form for that year (i.OSHAGUIDE.pdf Additionally.

COM How to Use the Federal Manual Sources Cited In the federal manual you will see several legislative and administrative sources cited: The OSH Act: You will see numerous citations to the federal Occupational Safety and Health (OSH) Act of 1970.S. However. assessment of penalties and issuance of citations. therefore. the order is as follows in terms of importance: (1) U. fall protection. are found in the Code of Federal Regulations (CFR). “OSHA FIRM § IV-B-1. Supreme Court Page 3 . contested citations are heard by the Occupational Safety & Health Review Commission (OSHRC). However.OSHAGUIDE. it has no value as a legal document binding OSHA. Thus. “29 U. In this manual we refer to the OSH Act as it is cited in the United States Code. “29 CFR 2200. it is very helpful for the reader to be able to recognize the different types of cases cited. However. therefore.” The OSHA Field Inspection Reference Manual (FIRM): The OSHA Field Inspection Reference Manual (FIRM) is an internal agency manual produced by OSHA that instructs OSHA Compliance Officers in the proper conduct of inspections.S. Supreme Court. References to the CFR in this manual are in this type of format. Accordingly. Some cases may not apply to your particular jurisdiction.S. which is divided into twelve federal circuits.” The Code of Federal Regulations (CFR): The specific safety standards regulating work practices and processes such as fall protection. Some cases are more important than others. An appeal of an OSHRC decision is heard by the U. An appeal of a federal circuit court decision is heard by the U. Court of Appeals.37. At the first level. it does show how Compliance Officers address particular situations and calculate penalties.S. it is not concerned with the broad range of safety standards contained in the CFR.” Court Cases Cited In the federal manual you will also see cases cited from different courts. the CFR does contain other regulations that are pertinent to this manual such as the procedural rules of the Occupational Safety & Health Review Commission (OSHRC) concerning citation appeals. this manual is limited to OSHA inspections and.C. References to the OSHA FIRM in this manual are in this type of format. § 651. etc. Thus. references to the OSH Act are in this type of format. machine guarding. There are other books and manuals that address specific OSHA regulations about hazard communication. The OSHA FIRM is not law and.

Inc. For quick recognition. Court of Appeals. etc. Supreme Court Decision Marshall v.S. the reader will want to focus on the enlarged portions indicated in bold. Court of Appeals. 7 OSHC 2048 (1979).. 436 US 307. v. Barlow’s Inc. States NOT regulated by federal OSHA are omitted from the list: 1st Circuit Maine Massachusetts New Hampshire Puerto Rico Rhode Island 5th Circuit Louisiana Mississippi Texas 2nd Circuit Connecticut New York 3rd Circuit Delaware New Jersey Pennsylvania Virgin Islands 7th Circuit Illinois Wisconsin 4th Circuit West Virginia 6th Circuit Ohio 8th Circuit Arkansas Missouri Nebraska North Dakota South Dakota DC Circuit Wash. Occupational Safety & Health Review Commission (OSHRC) Decision Keco Industries. U. and.S.”. 9th Circuit Guam Idaho Montana 10th Circuit Colorado Kansas Oklahoma 11th Circuit Alabama Florida Georgia Page 4 .. (2) federal circuit court decision of the U. (3) OSHRC decision.”. 578 F. Readers will benefit the most by knowing the number of their federal circuit of the U. Court of Appeals Decision Stephenson Enterprises. Remembering the number of your federal circuit is helpful because different federal courts sometimes offer conflicting opinions or have their own slightly different interpretation of the law.C. 1816.Ct. 1978).Ed.S. Citations to the different courts are in the format shown below.OSHAGUIDE. U. 98 S.COM decision. “5th Cir.S.2d 1021 (5th Cir. Inc. There are twelve federal Circuit Courts and many cases are cited in this manual as coming from the “1st Cir. D. 56 L. Marshall.2d 305 (1978).

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OVERVIEW OF OSHA
The federal Occupational and Safety and Health (OSH) Act was passed by Congress in 1970. See The Williams-Steiger Occupational Safety & Health Act of 1970; Public Law 91-596; 29 U.S.C. § 651 et seq. The purpose of the OSH Act “is to assure as far as possible, every working man and woman in the Nation safe and healthful working conditions . . .”. 29 U.S.C. § 651 (b). Employers are subject to civil and sometimes criminal penalties if they violate the OSH Act. The OSH Act is administered by the Occupational Safety and Health Agency of the U.S. Department of Labor. The agency is referred to as “federal OSHA” or, more commonly, “OSHA.” OSHA promulgates safety standards and enforces them. The Occupational Safety and Health Review Commission (OSHRC) is the independent body that adjudicates contested cases. If an employer disagrees with an OSHA citation it requests a hearing before the OSHRC. Congress left to the States the option of creating their own agency to enforce the OSH Act. About one half of the United States opted to be regulated by federal OSHA. The other States opted to create their own agency and are referred to as operating under a “State Plan.” A State Plan is authorized as long as the State’s regulations and enforcement are “as effective as” the protection afforded workers under the federal OSH Act. For example, California has a State Plan and it created its own agency, Cal/OSHA, which enforces safety regulations within that State. This manual applies to the States regulated by federal OSHA. (See Page 1 “Introduction” section for a list of those States.)

Safety Rules Applied
The United States Code (U.S.C.) is the body of law created by the United States Congress. The OSH Act is contained in U.S.C. Title 29, Chapter 15, Sections 651 to 678. The OSH Act granted authority to the Secretary of the U.S. Department of Labor to “promulgate, modify, or revoke any occupational safety or health standard.” 29 U.S.C. § 655 (b). In this context, “the Secretary” is synonymous with the agency itself, OSHA. Thus, OSHA can create and adopt specific safety standards regulating work practices and processes such as fall protection, machine guarding, etc. Those standards are found in the Code of Federal Regulations (C.F.R.) and are referrenced by their federal CFR number (e.g. 29 CFR 1910.001). The standards are divided into four broad categories: 1. 2. 3. 4. General Industry Construction Maritime & Longshoring Agriculture 29 CFR Part 1910 29 CFR Part 1926 29 CFR Part 1915, 1917, 1918 29 CFR Part 1928

General industry standards found in 29 CFR 1910 apply to all employers unless a more specific standard in one of the other Parts applies. For example, a Page 5

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fall protection standard in Part 1926 (the “Construction” code) might be more applicable to a contractor than a fall protection standard in Part 1910 (the “General Industry” code). The standards can be viewed on the Internet at OSHA’s web address: www.osha.gov/comp-links.html. OSHA does not create safety standards in a vacuum. Proposed rules are often based on general industry standards or research by recognized authorities such as the National Institute of Occupational Safety & Health (NIOSH). OSHA cannot adopt safety standards in secret. Proposed rules are subject to the due process “notice and hearing” requirements of the federal Administrative Procedures Act. 5 U.S.C. § 551 et seq. OSHA must publish new rules in the Federal Register, allow interested parties to file written comments and hold public hearings. 29 U.S.C. § 655 (b)(2)&(3). Proposed standards have sometimes been withdrawn or modified due to strong public opposition.

Requesting Variances
Upon the issuance of a new rule, if the employer foresees that it will be unable to comply, or that it will be unable to comply in time, the employer can apply to OSHA for a variance. 29 U.S.C. § 655 (b)(6). A “variance” means that the employer is excused from complying with the specific health standard. There are three types of variances: A “temporary variance” may be granted where the employer establishes that it is unable to comply with a standard by its effective date because of the unavailability of technical personnel, the lack of needed materials or equipment, or because construction or alteration at a facility cannot be completed in time. 29 U.S.C. § 655 (b)(6)(A)(i). A “permanent variance” may be granted if the employer demonstrates that the conditions, practices, operations, or processes it proposes to use will provide a place of employment “as safe and healthful” as compliance with the applicable standard would provide. 29 U.S.C. § 655 (d). An “experimental variance” is a special type of variance granted to allow an employer to participate in an experiment approved by OSHA or NIOSH designed to demonstrate or validate new safety products or techniques. 29 U.S.C. § 655 (b)(6)(C). OSHA’s Office of Variance Determinations processes variance applications. While variance applications are pending employers can also request an interim order. An “interim order” grants to employers temporary authority to use alternative means of employee protection, other than compliance with the safety standard, until a final determination is made on the variance application. 29 CFR § 1905.11 (c).

Ergonomic Rules
In the mid 1980’s and early 1990’s OSHA began to address ergonomic hazards in the auto and meat packing industries. “Ergonomic hazards” generally consist of work exposures that are not dangerous in themselves but, rather, Page 6

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increase the risk of injury over time. Lifting is not a dangerous activity in itself. However, repetitive lifting without proper technique or in a poorly designed work area increases the risk of injury. On November 23, 1999, OSHA published a proposed Ergonomics Program Standard in the Federal Register that would have required employers to implement a full-scale ergonomics program with the goal of reducing workrelated musculoskeletal disorders (MSDs). The proposed Ergonomics Program Standard was quite controversial. Many complained that the standard was vague with respect to distinguishing work-related MSD’s from non-work related conditions. Critics also pointed out that there was some dispute in the medical community whether certain MSDs were truly work-related. An additional objection was that a single injury (e.g., a back strain) or an employee complaint could trigger the employer’s duty to implement a full-blown ergonomics program. Perhaps the chief complaint was that the Ergonomics Program Standard would have been very difficult and expensive to implement. The Ergonomics Program Standard, as then written, would have allowed employees to receive greater wage replacement benefits (90 – 100% of their regular wage) than they would have received under their own State’s workers’ compensation act (usually 66% of their regular wage). Employers would have paid the difference between workers’ compensation benefits and OSHA wage replacement benefits - possibly for as long as six months. Critics pointed out that this system gave employees significant financial incentive to complain of ergonomic hazards, whether or not such hazards existed, and little financial incentive to return to work. There was vigorous public debate concerning the proposed Ergonomics Program Standard during the comment and hearing process. Despite strong public opposition, OSHA issued the Ergonomics Program Standard on November 14, 2000, during President Clinton’s last couple of months in office. After the election of President Bush, the Senate and the House of Representatives voted to repeal the Ergonomics Program Standard under the Congressional Review Act. President Bush, shortly after assuming office, signed Senate Joint Resolution 6, which officially repealed the Ergonomics Program Standard. Despite the defeat of the Ergonomics Program Standard, OSHA is still deeply committed to protecting employees from perceived ergonomic hazards. OSHA is currently developing “Ergonomic Guidelines” to assist employers in recognizing and controlling ergonomic hazards. OSHA asserts that this is something entirely different because a “guideline” is different than a “standard” in that compliance with a guideline is voluntary. Nevertheless, OSHA will cite employers for ergonomic hazards under the “General Duty Clause.” [See Page 26 of this manual for a discussion of the General Duty Clause.] OSHA states that deviation from the ergonomic guidelines in itself will not result in a General Duty Clause violation. However, it will be interesting to see what criteria OSHA uses (if not the so-called “voluntary” guidelines) when employers are cited for “ergonomic” violations. Condor OSHA Guides will monitor this issue and any new developments will be discussed in the next edition of the federal manual. Page 7

etc. developed by OSHA. “probable cause” in the OSHA context is a bit different than it is in the criminal context even though criminal penalties can be imposed under the OSH Act in certain situations. a complaint.Ed. or schedule. In the criminal context. Accordingly. or schedule.OSHAGUIDE. observation of an employee working without fall protection. “Probable cause” for programmed inspections is provided by the inspection list. Thus. Administrative searches and criminal searches are different in that. Thus. The employer’s constitutional protections “kick-in” when the employer requests a warrant provided that the employer has a reasonable expectation of privacy with respect to the area being searched. supra. Similarly. etc.” Page 8 .. Administrative searches and criminal searches are similar in the sense that specific evidence can provide probable cause for a search. or “wall-to-wall. by geographic location. citizen complaint (drug offense). it is important to know the two types of inspections performed by OSHA. Marshall v. Probable cause for OSHA inspections An OSHA inspection is considered an “administrative search” rather than a criminal search.. probable cause would be specific evidence of a criminal violation – e. 1816. for administrative searches. etc. probable cause would be specific evidence of an OSHA violation – e. In contrast.COM EMPLOYER RIGHTS Constitutional Protections Because OSHA can impose civil penalties and criminal sanctions the employer is afforded some protection against unauthorized searches under the Fourth Amendment to the United States Constitution. by industry.. This means that OSHA must have probable cause to perform the inspection.g. an accident.g. 436 US 307.2d 305 (1978). probable cause can also be provided by reasonable legislative or administrative standards. 56 L. The scope of the inspection To address the “scope” issue. broken taillight (traffic infraction). Barlow's. in the OSHA context. OSHA can develop a scheduled list of employers to be inspected as long as neutral standards are used – e.Ct. Programmed inspections are based on an inspection list. Barlow’s Inc. Programmed inspections are by nature comprehensive. 98 S.. the employer has the right to request a warrant to confirm that “cause” exists before OSHA can conduct an inspection. the police cannot search private homes merely by developing a list of “suspects” whether or not neutral criteria are used to develop the list. They are referred to as “programmed” and “unprogrammed” inspections based on the type of “probable cause” involved.g.

the federal Circuit Courts have taken different approaches as to whether unprogrammed inspections should be limited in scope: 3rd Circuit: The inspection must bear an appropriate relationship to the alleged violations in the employee complaint. the great majority of businessmen can be expected to consent to a search without a warrant.2d 320 (3rd Cir.e. etc. Warrants The employer has a constitutional right to request a warrant in order to confirm that probable cause exists for the inspection. Indeed. 8th Circuit & 11th Circuit: OSHA must make “some showing” of why a broad warrant is appropriate in a particular case. Barlow's. 741 F. 1980).2d 280 (7th Cir. Sarasota Concrete Co. supra. However. If the inspection is unprogrammed (accident. and (5) whether OSHA’s limited resources were being utilized in the public’s best interest. Marshall v. programmed) such as accidents.OSHAGUIDE. Donovan v.2d 172 (8th Cir. the annual percentage of employers requesting warrants for OSHA inspections is usually quite small. accident or observed violation.2d 838 (9th Cir.. most administrative searches are conducted on the basis of consent. 1985). complaints... However.COM Unprogrammed inspections are so named because they are in response to incidents that cannot be scheduled (i.. 7th Circuit: The court endorsed a five-factor test to determine whether a wall-to-wall inspection was appropriate: (1) whether the employee complaint was motivated by a desire to harass the employer. complaint.g. the cause of the accident. In re Cerro Copper Products Co. etc.. Inc. (3) whether a full inspection had been conducted within the preceding year. (2) whether the nature of the employer’s business and its safety record qualified it for a general inspection. 693 F. 9h Circuit: Wall-to-wall inspection permitted because limiting the inspection to the substance of the employee complaint would defeat the broad remedial purposes of the OSH Act. 1982). Carondelet Coke Corp. (4) whether the facility would be due for a programmed inspection in the near future.). 626 F. etc. Page 9 . As the Supreme Court noted in Barlow's. Hern Iron Works. Theoretically. 1984). employers should discuss with the Compliance Officer at the outset of the inspection whether it is going to be limited to the specifics of the incident or whether it is going to be a “wall-to-wall” inspection. The Compliance Officer’s response will assist the employer in determining whether to request a warrant. 1982). the nature of the complaint.2d 1061 (11th Cir. 752 F. unprogrammed inspections should be limited to the subject matter providing probable cause – e. 670 F. North American Car Co. “Probable cause” is provided by the specifics of the complaint. v. Donovan.

Maintaining the Compliance Officer’s good will is something employers should always consider.e. Perhaps one of the many warrant exceptions also apply. Because Good Will is not much of Factor: Many employers express a reasonable fear that requesting a warrant will only prejudice the OSHA Compliance Officer against them.. there may be some situations where “good will” is not much of a consideration because circumstances dictate that the employer’s conduct will be heavily scrutinized whether goodwill exists or not. To Avoid Waiving Constitutional Protections: The employer cannot invoke its constitutional protections without requesting a warrant. In more common vernacular. complaint. However.) the employer may want to request a warrant to avoid having OSHA transform the inspection into a broad “wall-to-wall” inspection. can give valid consent to a warrantless inspection with respect to any on-site employers.OSHAGUIDE. etc.COM Factors For Seeking a Warrant 1. To Keep a Low Profile: The employer may decide to waive seeking a warrant if it has a good track record with OSHA and the inspection is relatively routine. However. Consent to Warrantless Inspections The right to a warrant must be asserted at the beginning of the inspection or it can be deemed waived. Factors Against Seeking a Warrant 1. The Inspection is Programmed: A warrant cannot limit the scope of a programmed inspection (one based on a scheduling list) because programmed inspections are by nature wall-to-wall. (See next Section for further discussion. To Preserve Good Will: Many employers desire a good relationship with the Compliance Officer and fear that requesting a warrant will get the relationship off to a bad start. Consent for Page 10 . “If you don’t use it – you lose it. The right to a warrant must be asserted at the beginning of the inspection or it can be deemed waived.” 3.) 4. accident. Valid consent operates as a waiver of the Fourth Amendment right against unreasonable search and seizure. or general contractor in charge of multi-employer work site. 2. this is only a factor in jurisdictions that recognize such limitations. 2. Valid consent to a warrantless inspection operates as a waiver of the Fourth Amendment right against unreasonable search and seizure. 3. Valid Consent or Warrant Exceptions Apply: A property owner. To Keep an Unprogrammed Inspection Limited in Scope: If the inspection is unprogrammed (i.

2d 84 (5th Cir. this rule has been applied where delay to get a warrant would Page 11 . Donovan.g. In the OSHA context. 926. 1986). Consent can be given by any competent management official. v. The courts will look at the "totality of the circumstances" to determine whether consent was freely and voluntarily given. Inc.2d 943 (1967).S. Those situations generally cover areas where the employer has no Fourth Amendment protections because there is no reasonable expectation of privacy with respect to the area being searched. United States v. 1975). and the employer's acquiescence to the inspection. 87 S. Marshall.” One federal Circuit Court held that valid consent was given by a foreman. 387 U. Consent to an administrative inspection need not be express and the failure to object to a known search constitutes consent.Ct. coercion or misrepresentation. Stephenson Enterprises.. manifests consent. 27 L. 1970). Co. v. v.Ed. 786 F2d 714 (6th Cir. 1969). 418 F. 218 (1973). Municipal Court.2d 1006 (9th Cir.2d 185 (1970). Marshall. 1737. Bustamonte. 18 L. 387 U. Stephenson Enterprises. Usery.Ed..COM administrative searches is less stringent than that required for criminal searches e.L. 1978). Secretary of Labor. Stockwell Mfg. v. 1976). can consent to a warrantless inspection with respect to any on-site employers. Schneckloth v. United States v. v. Those situations generally cover instances when OSHA needs to preserve an accident scene or temporarily remedy a patently life-threatening hazard. Consent by Others A property owner.OSHAGUIDE. or general contractor in charge of multi-employer work site.S. 400 U. Camara v. 429 F. Foti Construction Co. The authority to give valid consent can also extend down the management “food chain. 578 F. An Emergency An administrative search without consent and without a warrant is permissible in the event of an emergency. 1727.Ct. Lake Butler Apparel Co. 541. v. Seattle.2d 357 (4th Cir. 553 F. Warrant Exceptions There are several situations where a full inspection can be performed without a warrant. Consent is not valid if it is the result of threats.2d 1021 (5th Cir. 519 F. 412 U. cert.Ed.2d 987 (8th Cir. 536 F.S. Dorey Electric Co. OSHRC.2d 1021 (5th Cir. J. which is generally defined as a threat to human life.. Thus.Ct. 87 S. There are also some isolated situations where OSHA can initially enter the premises without a warrant to accomplish a specific purpose. 1977). 523. Other federal cases have also held that the Compliance Officer's mere announcement that he is there for an inspection. Kramer Grocery Co. den. a plant manager can give valid consent. 188.2d 930 (1967).S. Inc. 91 S. Thriftmart. Miranda type warning not required. See v. 1978). 578 F. Inc. 18 L.2d 1309 (1oth Cir.

e.. Michigan v. The use of a telephoto lens that enhanced the Compliance Officer’s view has also been upheld. However. Secretary of Labor v. the observance should not be the result of a pre-planned visit or “stake-out” of a closed work site when there is no probable cause that violations have occurred. 1998). v. Inc..2d 486 (1978). Tyler.OSHAGUIDE. Tri-State Steel Construction Inc. Plain View & Surveillance The “plain view” exception may apply if hazards or safety violations are observable to the Compliance Officer from a position observable to the public.COM increase the danger and consent could not be obtained. there may be a privacy interest in areas not accessible to the general public such as the warehouse or loading dock – so long as conditions would not permit a curious passerby to invade the private space. Inc. 1998). 463 U. signs or totally enclosing the area with tape marked “Do Not Enter” or similar language.Ed. 436 U. L. Bast Hatfield Inc. The Compliance Officer must be lawfully positioned -.2d 1235 (4th Cir.Ct. 19 OSHC 1287 (2000). Secretary of Labor v. 98 S... Willson & Sons. United States.i. 1735. Secretary of Labor v.Ct. Globe Contractors. United States v.S. 468 (1971) and Illinois v. In one case. even in places open to the public such as a grocery store. 134 F.2d 1235 (4th Cir... Coolidge v. 783 F. L. 765.S. Compliance Officers can legally videotape roofing contractors working without fall protection from a vehicle parked on a public street. Andreas. 732 F. the Compliance Officer should not trespass on private property or within a closed work site to view the violation. 56 L.R. 1986). 104 S. 17 OHSC 2165 (1996). 1984).2d 1422 (9th Cir. However.Ed. such as commercial retail space. supra. 499. v. federal case law recognizes some constraints. Head. violations were observed while looking through the window of an attorney’s office with the attorney’s consent. Secretary of Labor v. a contractor might be able to create a privacy interest by closing the site to the general public by means of barricades. OSHRC. 2d 947 (8th Cir.. 399 (5th Cir. 80 L. Latite Roofing & Sheet Metal Co. New Hampshire.2d 390. For example. 560 F. Western Waterproofing Co. 134 F. The “open fields” exception also applies to indoor facilities open to the general public. This exception often applies to construction activities conducted outdoors if the public has access to the work area. OSHRC. Willson & Sons. New Hampshire. Open Fields & Outdoor Projects The “open fields” exception holds that there is no privacy interest for activities conducted in places open to the public. Thus. Oliver v. Thus. Inc. Page 12 .2d 214 (1984). 170. United States v. 1978).R.. 443.. 771 (1983). Marshall v. 18 OHSC 1848 (1999). 403 U. Some cases suggest that there could be a privacy interest on an outdoor construction project if the employer closed the work area to the public. 15 OSHC 1903 (1992) citing Coolidge v. The observance of the violation must also be inadvertent. 1942. fencing.S. 466 U.S. Marbury.

the employer must be prepared to wait until the contest proceeding goes to hearing – which often can take quite some time. to challenging a warrant is to seek a protective order with the goal of favorably modifying the scope of the inspection. The most favored option is to allow the inspection under protest and then challenge the warrant in contest proceedings before the OSHRC. Challenging Warrants The employer basically has three options if it wishes to challenge an OSHA inspection warrant: 1.OSHAGUIDE. For example. the Compliance Officer may be asking a forklift driver about the forklift accident. In practice. the employer would then defend its refusal to comply with the warrant. The “plain view” exception also covers information unrelated to the purpose of the inspection which is volunteered to OSHA during the course of the inspection. OSHA can then begin looking into hazard communication issues. INSPECTION PROCEDURE Presentation of Credentials Upon arrival. while conducting an inspection to investigate a forklift accident. One option is for the employer to refuse the inspection and seek to quash the warrant in civil court. 2. However. An alternative. The purpose is somewhat similar. If OSHA initiates a contempt proceeding against the employer. most jurisdictions have held that they lack jurisdiction to consider the matter until the employer has exhausted its administrative remedies with the Occupational Safety & Health Review Commission (OSHRC). This method is not favored because of the fines and costs associated with contempt proceedings. a Compliance Officer can cite a machine guarding violation in plain view. the presentation of OSHA credentials is similar to a police officer “flashing his badge” to prove his identity. 3. Another option is to allow the inspection under protest and then seek to quash or modify the warrant in civil court. However. the Compliance Officer will present his or her “credentials” which usually consists of an official badge or OSHA identification card. Page 13 .COM Violations found in plain view during an otherwise legitimate inspection can be cited. which is likely. Thus. However. This is viewed as less severe than challenging a warrant and also avoids the delay of waiting for the contest proceeding to go to hearing before the OSHRC. or middle ground. the forklift driver begins talking about other unsafe practices including the employer’s lack of a hazard communication program.

626 F. the Compliance Officer will make a reasonable attempt to contact a management official. Keco Industries. If neither is present. complaint.F. 1977) (foreman was deemed agent in charge). & I. complaint. The owner or operator is usually easily identified. 576 F. the Compliance Officer will ask for the “agent in charge. 553 F. operator.S.. C. Inc. § 657 (e). v. The OSH Act conditions an inspection upon the proper presentation of credentials to the “owner. a foreman or leadperson can be deemed the “employer representative” for the purpose of conducting an inspection if no other management official is present. North American Car Co.. 7 OSHC 2048 (1979). ask whether there are any trade secrets that need to be protected and identify the participants to the inspection.” 29 U. § 657 (a). There is some limited authority for the proposition that even if an employer consents to a warrantless inspection. Marshall v. Id. etc. Thus. the inspection still cannot exceed the scope of the employer’s consent. or observed violation) the employer should make it clear to the Compliance Officer that its consent to the inspection is predicated upon the inspection being limited to the specifics of the accident. even if the employer has consented to a warrantless inspection.2d 320 (3rd Cir.” 29 U.S. Steel Corp. 1980).. or agent in charge of the workplace. The problem arises when the supervisors are absent and the Compliance Officer asks. the Compliance Officer will conduct an opening conference explaining the purpose and methods of inspection. Opening Conference After entry is granted. it is a good practice during the opening conference for the employer to document the scope of its consent.2d 357 (4th Cir.C. the scope of its consent) and give a copy of this document to the Compliance Officer and keep another copy for its records. Dorey Electric Co. 8 OSHC 1162 (1979).COM There have been cases of con men posing as Compliance Officers and soliciting bribes or “protection money” to prevent inspections. Merchants Oil Inc. Marshall v. An authorized employee representative shall also be given an opportunity to accompany the Compliance Officer during the inspection. As with the “agent in charge” issue during the presentation of credentials.OSHAGUIDE. the Compliance Officer will not delay the inspection an unreasonable length of time. However. If an “agent in charge” still cannot be readily identified.e.2d 809 (10th Cir.C.” This broad definition generally encompasses anyone with apparent authority at the work site. The employer should document in writing the scope of the inspection that it has authorized (i. 1978) (most “senior employee” left at the site deemed agent in charge). A critical point for the employer is to define the scope of those deemed to be the authorized employer representative prior to an inspection...e. “Who is Page 14 . in response to an accident.. Employer Representative’s Right of Accompaniment The OSH Act provides that an employer representative “shall be given an opportunity to accompany” the Compliance Officer during the inspection “for the purpose of aiding such inspection. The Compliance Officer will also request employer records. OSHRC. If it is an unprogrammed inspection (i.

29 U.7 (b). However. The above strategy will not prevent an inspection. The Compliance Officer can interview employees in private outside the presence of an employer representative. This is referred to as a “walk-through” or “walkaround.COM in charge while the supervisors are away?” Any employee who steps forward is deemed an agent of the employer and becomes the employer representative for the purpose of the inspection.” The Compliance Officer is authorized to conduct an inspection “during regular working hours and at other reasonable times. This right probably also includes videotape as long as trade secrets are adequately protected. The Walk-Through and Collecting Evidence After completion of the opening conference. Therefore.C. The Compliance Officer has the right to take environmental samples and photographs. the employer should limit the discussion to the specifics of the accident or the complaint.” Therefore. however. the employer should schedule the employee interviews and designate a neutral area Page 15 . Even so. the employer should designate the authorized employer representatives before the inspection and instruct informal leadpersons to inform OSHA that they are NOT “in charge” of all or part of the place of employment when supervisors are absent. that this is a two-edged sword.C. the Compliance Officer will conduct a tour of the business premises. Many employers choose take their own photographs and videotape during the inspection. about the information it volunteers.S. An inspection without an employer representative present may be preferable to having an informal crew leader deemed the employer representative and make damaging admissions that would bind the employer. The inspection can go forward without an employer representative as long as the Compliance Officer substantially complied with the duty to identify an employer representative and there was no prejudice to the employer by not having one present. the Compliance Officer will be attempting to identify safety code violations. it is important for the employer to limit the scope of the inspection as much as practicable. As noted. The above strategy is to prevent non-supervisory personnel from holding themselves out to OSHA as an agent of the employer. but cautious.” 29 U. If the Compliance Officer is conducting an unprogrammed inspection. 29 CFR 1903. the employer should attempt to keep the inspection limited to the area of the accident or the area identified in the complaint. If this is an unprogrammed inspection. Employers need to be aware. the employer should be cooperative.S. and within reasonable limits and in a reasonable manner. some employers feel that it is worth the risk to produce their own record of the inspection. even during an unprogrammed inspection the Compliance Officer can cite the employer for any other violations in “plain view. § 657 (a)(1). The purpose is to produce mitigating evidence to refute any damaging evidence collected by OSHA. § 657 (a)(2).OSHAGUIDE. Accordingly. The employer can be cited for any information that it volunteers to the Compliance Officer. During the walkaround. Any evidence that employers collect may be used later by OSHA to prove a violation.

2003.S. If the Compliance Officer objects. The EEP is not actually federal law. § 657 (a)(2). Page 16 . ignore their OSH Act obligations. despite OSHA’s enforcement and outreach efforts. The right to request an informal conference with OSHA. 2. is defined as any inspection that meets one or more of the following criteria: 1. PEC Criteria A Priority Enforcement Case. 6. 3. 29 CFR 1903. 5. Closing Conference After the inspection is completed the Compliance Officer will hold a closing conference with the employer and employee representative.” 29 U. If OSHA finds that a willful violation caused the death of an employee. The employer’s duty to post the citation. that can be found on OSHA’s web site.7 (e).OSHAGUIDE. The requirements for abating any violations or requesting extensions of the correction date. Whether any violations were found and if a citation will be issued. or PEC. The employer’s right to contest the citation. thereby placing their employees at risk. the employer should remind the Compliance Officer that pursuant to statute he is only authorized to conduct an inspection in a “reasonable manner” and that scheduled interviews in a nonproduction area reduces down time and is a “reasonable limit. That discrimination against employees is prohibited for exercising rights under the OSH Act. The program is more fully discussed in an OSHA memorandum dated September 30.COM such as a lunchroom.C. In essence. the Compliance Officer will inform the parties of the following: 1. This prevents the Compliance Officer from rambling around the facility without a management person present . A fatality inspection in which OSHA finds a high gravity serious (or willful or repeated) violation related to the death. penalties or correction dates. employers who meet the criteria for a Priority Enforcement Case (PEC) come under more intense scrutiny by OSHA and face a greater likelihood of criminal sanctions. 4. ENHANCED ENFORCEMENT PROGRAM (EEP) OSHA’s Enhanced Enforcement Program (EEP) addresses employers who. the employer will also be considered for criminal referral under section 17(e) of the OSH Act. the EEP is an OSHA program which sets forth the procedures that OSHA Regional Administrators should follow in cases meeting the PEC criteria. Rather. At the closing conference.remember the “plain view” problem.

Requiring the employer to notify the Area Office of any serious injury or illness requiring medical attention and consenting to an inspection. OSHA will often make greater use of settlement provisions to ensure future compliance. Related establishments of the same employer will also be placed higher on OSHA’s inspection priority list. 3. Necessary information about the company will be disseminated through the OSHA intranet and e-mail. a follow-up inspection will be conducted even if abatement of the cited violations has been verified. 4. 5. An inspection that results in three or more high gravity serious violations classified as willful or repeat violations. Company Headquarters Notification In PEC cases. in general industry). In construction (and where appropriate. and Page 17 . OSHA will mail a copy of the citation and notification of penalty to the employer’s national headquarters. the EEP recommends that at least one other worksite be inspected. An inspection that results in two failure-to-abate notices where the underlying violations were classified as high gravity serious. Requiring the employer to hire a consultant to develop a process to implement an effective safety and health program with management support in the facility. OSHA will inspect other sites of the same company-wide employer to determine whether the compliance problems at the PEC site are indicative of a company-wide problem. 3. OSHA may also hold meetings with company officials or send letters of concern to the company president. Applying the agreement company-wide.COM 2. PEC Follow-up Inspections In PEC cases. Inspections of Other Sites When circumstances warrant.OSHAGUIDE. 2. OSHA may consider including some or all of the following terms within the settlement agreement: 1. Using Settlement Terms to Ensure Compliance and Abatement In PEC cases. Requiring the employer to submit to OSHA its Log of Occupational Injuries and Illnesses on a quarterly basis. If the employer is in construction. using settlement agreements to obtain from employers a list of other job sites. and to consent to OSHA's conducting an inspection based on the report.

Many carriers provide free loss prevention services. hazard communication). Ensure that all employees read the policy (probably at orientation) and that they sign and date a check-off form stating that they have read and understand the rules. Adopt a company safety policy. EMPLOYER STRATEGIES Before The Inspection  Download any applicable safety codes and regulations from the Internet at OSHA’s Web address: www. Finally.html. and check if there are any proposed rules which will affect your industry.COM 6. Consultation assistance is available to small employers (with fewer than 250 employees at a fixed site and no more than 500 corporatewide).OSHAGUIDE. OSHA Form 300A. etc. OSHA always has authority to examine mandatory records . OSHA 300 Log. If any of the rules are violated. as well as limited assistance away from the worksite. No penalties are proposed or citations Page 18       . “OSHA’s consultation service provides free. Monitor these proposed rules to determine if you need to implement any new programs/procedures or apply for a variance. Employers may also receive training and education services.g. Your carrier’s Loss Control Consultant can assist you in developing and implementing the required safety programs. Obtaining employer consent to a court enforcement order mandating abatement.e. Keep these records up-to-date and in a central location for easy review by OSHA.g. contact your workers’ compensation carrier.osha. onsite assistance in developing and implementing effective workplace safety and health management systems. OSHA also has many free publications that can be downloaded off the Internet at the web address listed above. The inability to locate any required records and written programs makes a poor impression on the Compliance Officer. A comprehensive consultation includes a hazard survey of the worksite and an appraisal of all aspects to the employer’s existing safety and health program. Periodically visit OSHA’s website.gov/comp-links. If you need help determining which programs or standards apply to you. Most employers are required to develop and implement certain written safety programs (e. OSHA 301 forms and/or worker’s compensation claim forms. Keep copies of any other written programs in a central location for easy review by OSHA. During any inspection. issue a written warning and place a copy in the employee’s personnel file and another copy in a separate safety file for review by OSHA. many private safety and health consultants are often listed in your local telephone directory. Section 11(b) Summary Enforcement Orders are sometimes used as an effective and speedier alternative to failure-to-abate notices.

]  You may also consider applying for OSHA’s VPP and SHARP programs. etc. Explain to them that they should inform OSHA. A property owner. If you decide to consent to a warrantless inspection. The employer’s only obligation is to correct all identified serious hazards within the agreed upon correction time frame.OSHAGUIDE. can consent on your behalf to a warrantless inspection. Be ready to access any records related to your mandatory record keeping requirements . if you do not request a warrant you waive any constitutional protections. Designate the authorized employer representatives for the purposes of OSHA inspections. Advise informal leadpersons and crew leaders that you do not want them to act as employer representatives during an inspection. 2002). or general contractor in charge of multi-employer work site. if asked. OSHA consultation assistance will not provide the employer’s name or workplace information to OSHA enforcement. Certain warrant exceptions may also apply. signs or totally enclosing the area with tape marked “Do Not Enter” or similar language. fencing.e. subcontractor or temporary employment agency which does not exercise control over the work site and your employees detect a hazard that you did not create. and (2) take alternative steps to protect your employees. Participation in these programs can exempt the employer from some inspections. However.) to prevent OSHA from exceeding the scope of the inspection.g. This will assist you in tactfully requesting a warrant if the need arises. Even experienced attorneys find this complex. Give a copy of this document to the Compliance Officer and keep a copy for your records. If possible. preferably in writing.” [Quoted from OSHA Publication 3000 (Rev. OSHA 300 Log. Consider adopting a written policy of requesting warrants for all OSHA inspections. On multi-employer worksites. A warrant has less value with respect to a programmed (scheduled) because they are by nature comprehensive inspections. that they are NOT in charge of the worksite during their supervisor’s absence. document in writing the scope of the inspection that you have authorized.COM issued for hazards identified by the consultant. If this is a programmed Page 19   . etc. A warrant is best utilized with unprogrammed inspections (accidents. do the following: (1) make a reasonable effort. complaints.     At the Beginning of the Inspection  Determine whether you want to waive your right to a warrant. if you are an employer. close any open work sites to the general public by means of barricades. to persuade the creating employer (the one that created the hazard) and the controlling employer (the one that controls the worksite) to correct the hazard.

other means of protection. The investigation report often contains employee statements paraphrased in written notes by the Compliance Officer. Legal representation is especially advisable if your company has a poor history with OSHA. lock-out/tag-out. etc. limited access to the point of danger.COM (comprehensive) inspection. Have employees close their tool boxes and store broken equipment. the Compliance Officer is authorized to inquire into any and all safety issues.g. etc. Correct as many violations as you can during the inspection. which is his right.OSHAGUIDE. If this an unprogrammed inspection. hazard communication. try and keep the discussion limited to the specifics of the accident or complaint. If the Compliance Officer requests to talk to employees in private. as much as practicable. It explains the rationale behind the specific violations found and how the penalties were calculated. be ready to access any other written programs e. few employees exposed. Confirm with your employees whether the Compliance Officer accurately characterized their statements. However.” Accordingly. The Compliance Officer will rate the violation based upon the probability of the accident occurring and the potential severity of the injury that would be caused by the hazard. the employer should schedule the interviews and designate a neutral (nonproduction) area such as a lunchroom. This will certainly include the authorized employer representative. However. Request a copy of the investigation report at the closing conference.. if this is a programmed (comprehensive) inspection. training received by the employees. Take your own pictures and videotape of the alleged violations. Even during unprogrammed inspections the Compliance Officer can cite the employer for any violations in “plain view. you may also want to include trained persons with technical expertise concerning the machinery or processes involved. or the citation involves a serious injury or willful violation. During the Inspection  Determine the persons who will accompany the Compliance Officer during the inspection. it is very important during the inspection to point out those factors which reduce the probability of an accident occurring .e. Accordingly. try to make sure that the Compliance Officer confines the inspection to the area of the accident or the complaint.        Page 20 . exposure limited in duration. You can be cited for any information you volunteer to the Compliance Officer. a problem with repeat violations. Therefore.g. be cooperative but cautious about the information you volunteer.

hazard communication) seek to have a general duty to train and supervise violation transformed into a more specific violation for failure to train and supervise under the hazard communication standard. 29 CFR § 2200. 29 CFR 1903. the parties can sometimes accomplish much the same purpose by requesting a pre-hearing conference with the Administrative Law Judge. Criminal penalties of $10. § 666 (g).C. § 659 (a). OSHA will perform an inspection in response to a complaint if they have reason to believe that it is valid.17 (a). Accordingly. If the informal conference goes poorly.COM Upon Receiving the Citation  THE EMPLOYER MUST FILE A WRITTEN NOTICE OF CONTEST WITHIN FIFTEEN (15) WORKING DAYS OF THE EMPLOYER’S RECEIPT OF THE CITATION AND NOTIFICATION OF PENALTY. For example. or certification in any application.51 (b). 29 CFR § 1903. if a specific program is involved (e. 29 CFR 2200. can be imposed for knowingly making any false statement. Labor Disputes & Retaliation If the complainant requested confidentiality. This is true Page 21 . § 659 (c).  Disgruntled Employees.37 (c). exercise extreme caution when completing any documents concerning abatement certification. OSHA is generally more interested in mitigating factual information than legal defenses.   At The Informal Conference  At the informal conference. representation. However. or both.14 a (c). record. 29 U.C. Petitions for Modification of Abatement (PMAs) are used if the employer does not contest the citation but needs more time to correct the violations. They must be filed before the close of the next working day following the date on which abatement was originally required. 29 U. plan or other document required by the OSH Act.S. It is this type of information that will most likely result in violations being withdrawn or penalties being reduced. The term “working days” excludes Saturdays. sometimes an employer obtains information that a disgruntled employee filed the complaint. Likewise.21 (c). The filing is timely if it is postmarked within the 15-day period.000 or six months imprisonment. The OSHRC encourages settlement at this level and the judge performing the prehearing conference (in contrast to OSHA) will be interested in your legal defenses. there is no formal mediation under the OSH Act or the procedural rules of the OSHRC. The Notice of Contest is submitted to the OSHA Area Director. 29 U. 29 CFR § 1903.OSHAGUIDE. Sundays and federal holidays. the complaint may come during the midst of a labor dispute. PMAs are filed with the OSHA Area Director.C.S. OSHA will not release the complainant’s identity. This is because a general violation is more subject to providing the foundation for a repeat violation.g. It is also a good strategy to request that broad general violations be reclassified as specific code violations. However.S.

The citation must be in writing and it must “describe with particularity the nature of the violation” as well as referencing the safety standards allegedly violated. However. 29 CFR 1903.” OSHA FIRM § II-A-2-g-(2). Accordingly.C.OSHAGUIDE. it is insufficient for the Compliance Officer merely to surmise that employees must have been exposed to the hazard. The OSH Act requires that copies of the citation be posted near each place of a violation.COM even if the complainant possibly had other motives for filing the complaint. The employer can be assessed a maximum penalty of $7. § 658 (b).S.C. It is an unlawful employment practice for an employer to discriminate or retaliate against an employee who files a complaint with OSHA. A civil monetary penalty for each of the violations will also likely be assessed. § 658 (a). 29 U. § 658 (c). the criminal statute of limitations applies which is usually the five-year statute of limitations for federal non-capital crimes. OSHA must issue the citation within “six months following the occurrence of any violation.S. OSHA must prove exposure. A longstanding hazard can be cited as long as employees were exposed to the hazard in the six months preceding the citation. Rather. advise the Compliance Officer that the complaint may have been filed for improper motives if you have good reason to believe this is true.16 (b). in practice.C. Thus. However. whichever is longer. the employer will need to be cautious about taking any disciplinary action. OSHA’s Field Inspection Reference Manual (FIRM) cautions Compliance Officers during labor disputes “to insure ensure as far as possible that the complaint reflects a good faith belief that a true hazard exists. THE CITATION If the Compliance Officer observes a safety violation or a health hazard. Page 22 . § 3238. Finally.S. a citation will be issued setting dates of correction for each of the violations. The citation must remain posted for three days or until the violation has been corrected. even if the complainant subsequently violates legitimate work rules. 29 U. The six-month period begins to run on the last day that employees had access to the zone of danger. 29 CFR 1903.S.C.” 29 U.S. If employees are scattered it is sufficient to post the citation in a single location conspicuous enough to put all affected employees on notice such as a common place where employees report each day. 29 U. the six-month period generally begins to run on the day that the Compliance Officer arrives and conducts the inspection and either observes employee exposure to the hazard or obtains information sufficient to show that actual exposure occurred. 18 U. § 660 (c). § 666 (i).16 (a). 29 U.C.S.C.000 for failure to post a citation. Employers should be aware that the six-month “statute of limitations” for citations does not apply to criminal violations of the OSH Act.

C.C. If the citation is contested.S.37 (c). lack of material or equipment. or certification in any application. plan or other document required by the OSH Act.000 or six months imprisonment. construction or alteration cannot be completed in time. The interim steps being taken to protect the employees during the abatement period. The reasons why the employer needs additional time – e. The correction dates for each violation can be found on the face of the citation. 3. 29 CFR 2200. 2.C. If there is no objection to the PMA by employees or authorized employee Page 23 . Thus. This coincides with the employers’ 15-day period in which to file an appeal of the citation. Employers generally have a 15-day “grace” period before abatement must occur. 29 U. If the citation is not contested. the employer’s notice of contest must be made “in good faith and not solely for delay or avoidance of penalties. The specific amount of additional time needed. or both. unavailability of technical experts. OSHA now requires that the employer submit written Abatement Certification to the OSHA Area Director as proof of abatement. 4. 5. representation. record. § 666 (d). 29 U. can be imposed for knowingly making any false statement. However. then the employer must abate the violations.S.S. 29 U.” 29 U. PMAs must contain the following information: 1. Certification that the PMA was posted 10 days in a conspicuous place sufficient to give all affected employees notice of the PMA. PMAs are filed with the OSHA Area Director.. A safer practice is to file the PMA before the abatement period expires. § 659 (b). the employer should exercise extreme care when completing abatement certification documents. Petitions for Modification of Abatement (PMAs) Petitions for Modification of Abatement (PMAs) are used if the employer does not contest the citation but needs more time to correct the violations.000 PER DAY for each day the violation is not corrected past the correction date.C. They must be filed before the close of the next working day following the date on which abatement was originally required.COM Abatement “Abatement” is the OSHA term for correcting the violation.g. 29 CFR 1903. § 659 (c). Employers may be assessed penalties of up to $7.14 a (c).OSHAGUIDE. § 666 (g). abatement is placed on hold while the employer contests the citation.S. Criminal penalties of $10. The steps and dates of all employer actions to achieve compliance within the abatement period.

Collins Construction Co. Classifications OSHA classifies violations into specific types. of the hazardous condition. affirmed in part 681 F..S.. 29 U.E. No injury would result. Page 24 . However. 9 OSHC 2126 (1981). When the OSH Act was first established minor record keeping errors were felt to be de minimus. De minimus violations are now normally reserved for instances when: 1. 19 OSHC 2060 (2002). Dun-Par Engineered Form Co. their authorized representatives or OSHA. 1982). If there is an objection to the PMA by employees. The standard is technically violated but the employer provides equivalent or better protection than the standard.OSHAGUIDE. then OSHA has authority to rule on the PMA. then the Occupational Safety & Health Review Commission (OSHRC) will rule on the PMA. No penalty is assessed because the violation is determined to be rather trivial. and. The possibility of injury is very remote. Inc. D. Astra Pharmaceutical Products.2d 69 (1st Cir. C. § 658 (a)..COM representatives.A. or with reasonable diligence should have known. v. 2. Secretary of Labor. that is no longer the case due to flagrant record keeping violations by many employers. Employees were exposed or had access to the hazard. Wylie Construction Co. The employer failed to comply with the cited standard. 3. In some jurisdictions this extends to cases where any injury would be trivial. The employer knew. 1997). VIOLATIONS OSHA must prove the following elements by a preponderance of the evidence to establish a violation: (1) (2) (3) (4) The cited standard applies. De Minimus A de minimus violation is one where a standard is technically violated but it has no direct or immediate relationship to safety or health. 12 OSHC 1962 (1986).C. Secretary of Labor v. 117 F. A technical violation occurred but no employees could be harmed by the violation.3d 691 (2d Cir.

employers should pay particular care to ensure that sufficiently clear language is contained in the settlement agreement to prevent settled violations as serving as the basis for repeat violations. However.3d 400 (7th Cir.S.OSHAGUIDE. whichever is later. The maximum penalty for a “Serious Violation” is $7. etc. different standards can also result in a repeat violation if the hazard involved was substantially similar.000.C. 1998) (mechanical machine guarding and electronic eye both involved same pinchpoint hazard). OSHA must also show that the previous citation became a final order. OSHA FIRM § III-C-2-f-(3)-(a). OSHRC. a “Serious Violation” is a violation where there is a “substantial probability that death or serious physical harm could result. § 666 (b). but it is usually much less than that. § 666 (c). OSHA FIRM § III-C-2-f-(4)-(c). Herman. OSHA must show that the same employer was cited once before for the same or substantially similar violation. A “Repeat Violation” occurs if.” Modern Continental Construction Co.C. 305 F. Accordingly. there was a final order against the “same employer” for “a substantially similar violation. Same or Substantially Similar Violation: Of course. Serious As noted above. § 666 (k). a repeat violation can be established by showing that the same standard was violated. the employer can best avoid repeat violations by showing that the prior citation involved different conditions or hazards.S. Repeat The maximum penalty for a repeat violation is $70.S. Multifacility Employers: Separate facilities of the same employer can be considered for the purposes of issuing a repeat violation if the facilities are in the same OSHA Area Office jurisdiction.” 29 U..000. 2002). Examples of “serious physical harm” are amputations.” The maximum penalty for an Other Than Serious violation is $7. § 666 (a). v. This also applies to contractors and other employers with non-fixed worksites. Otis Elevator Inc. An “Other Than Serious Violation” is more serious than a de minimus violation but less serious than a “Serious Violation.S. 154 F. § 666 (k). Thus..C. Secretary of Labor v. 29 U. 29 U.S.C. Inc.COM Other Than Serious An “Other Than Serious Violation” is a violation that will not result in death or serious physical harm. disabling burns.000. 18 OSHC 2082 (2000).3d 43 (1st Cir. be aware that some courts have interpreted settlement agreements pertaining to prior violations as “final orders. Three-Year Time Limitation: OSHA will not consider the violation a repeat unless the citation is issued within three years of the final order of the previous citation OR within three years of the final abatement date of that previous citation. 29 U. v.” Potlach Corp.C. 29 U. Page 25 . fractures. However. at the time of the alleged repeated violation. Accordingly. 7 OHSC 1061 (1979). Caterpillar.

522 F. 809 F. 122 F. v. 2000). 29 U. Inc. Construction. 29 U. Georgia Electric Co.. Failure to Abate versus Repeat Violation: The issue is whether or not the violative condition was brought into compliance following the initial inspection.3d 378 (6th Cir.C. the federal OSHA states of Alabama.3d 1232 (11th Cir. OSHRC. 1979). v.) cert..3d 256 (3d Cir. 1987).. Brock v.3d 437 (7th Cir. National Steel & Shipbuilding Co. A willful violation exists if the employer knowingly decided not to comply with the safety standard. § 666 (d).S. 181 F.C.. OSHA FIRM § III-C-2-f-(6). However. v. 1072 (1976).C. Secretary of Labor. denied 120 S. Inc. Intercounty Construction Co.2d 161 (1st Cir.Ct.3d 564 (8th Cir. § 666 (a). It is a repeat violation if the condition was corrected following the initial inspection but subsequently developed again. OSHRC. 200 F. v. Dakota Underground. Failure to abate exists if the violation was never corrected.e.2d 840 (8th Cir. However. Other jurisdictions have defined a willful violation as one committed with “intentional disregard” or “plain indifference” to the requirements of the OSH Act. 2002). 607 F. the employer should request reclassification if it concedes that a violation occurred.S. denied 423 U. 2002).3d 1123 (D. 1997). the Eleventh Circuit (i. v. Secretary of Labor. cert. v. 1975). National Engineering & Contracting Co. Marshall.000. 268 F. See also Alden Leeds. Joe Minerals Corp. St. Cir. Florida and Georgia) Page 26 . v. 2001). which has a maximum penalty of $70. v. Kaspar Wire Works. Fluor Daniel v. OSHRC. Violation of a broad standard is more apt to provide the basis for a subsequent repeat.2d 309 (5th Cir. Willful The most serious violation is a willful violation. 595 F. Inc.000 per day can be imposed if an employer fails to correct a violation.000 and a minimum penalty of $5. Caterpillar Inc.S. Secretary of Labor v. 298 F.. Herman.COM The employer may also avoid future repeat violations by having broad general violations reclassified as specific code violations.OSHAGUIDE. OSHRC. v. 295 F.2d 311 (9th Cir. an employer’s mere knowledge of a standard and subsequent violation of that standard is insufficient to prove a willful violation. 1981).2d 777 (4th Cir. 647 F. Failure to Abate A “Failure to Abate” violation can be found for any violations not fully corrected by the dates ordered in the citation. OSHRC. This can be done at the informal conference level. Rebutting Willfulness: Employers can rebut a charge of willfulness by showing that they made good faith efforts to comply with requirements of the standard. Penalties of $7. If a specific standard is more applicable. Inc.. A “Willful Violation” does not require malicious intent or an obstinate refusal to comply. 578 (1999). 1979).. OSHRC. SC Development Corp. Morello Bros. 19 OSHC 1883 (2002).

A recent case has also If a willful violation causes the death of an employee. 122 F.2d 378 (6th Cir. the employer may be liable for a fine of up to $10. 1998).” 29 U. The legislative intent was to protect employees in hazardous situations for which standards had not yet been adopted. 568 F. It also applies to Page 27 . § 666 (e). Older court decisions have held that a more specific safety standard can preempt the general duty clause. This applies to observable conditions that a reasonable person would deem hazardous.OSHAGUIDE. § 654 (a)(1).C. § 654 (a)(1). 579 F.. 2002). OSHRC. OSHRC. v. MJP Construction Co. OSHA uses the general duty clause as a “catch-all” provision. United Automobile Workers v. 29 U.S. OSHA will cite the employer for violations of the general duty clause when hazards exist that are not covered by specific standards.3d 484 (7th Cir. OSHRC. The more recent trend is for courts to hold that a general duty clause violation may exist. A second conviction is punishable by a fine of up to $20.” 29 U. imprisonment up to one year. Secretary of Labor. will defeat a showing of willfulness. However. shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. Empire-Detroit Steel v. although incorrect. Some cases have even held that the employer’s good faith interpretation of a safety standard.3d 1232 (11th Cir.5 (f). Fluor Daniel v.S. if the specific standard was inadequate to protect the employees..000.S. 135 F. or both.2d 1570 (D.C.000. 29 CFR § 1910.3d 437 (7th Cir.COM appears to have rejected a good faith defense for willful violations. despite compliance with a specific standard. Cir. General Dynamics Land Systems Division.C. 815 F. or both. General Duty Clause Violations Employers have a general duty under the OSH Act to protect their employees from recognized hazards and to provide them with a safe place of employment. the general duty clause is limited to “recognized hazards. 1997).. 295 F.2d 902 (2d Cir. v. . 1977). See also Caterpillar Inc. . 1978). 19 OSHC 1638 (2001). six months in prison.C. Usery v. This is known as the “General Duty Clause” which provides: “Each employer . 1987). Marquette Mfg. Co. Reasonable efforts at compliance have been held sufficient even though they are incomplete or not entirely effective. United States v.. Some regulations indicate that employers should not be cited for general duty clause violations if hazards are addressed by more specific safety standards. Some critics have argued that the “General Duty Clause” imposes strict liability on employers. Ladish Malting Co.

even under the rather loose standard of the general duty clause. Exposing Employer: An “exposing employer” is one whose own employees are exposed to the hazard. An exposing employer’s obligation depends on whether it has the authority to correct the hazard.” 29 U. (4) controlling employer.C. OSHRC. OSHA Instruction CPL 2-0.” Creating employers can be cited if any employees at the site (including those of other employers) are exposed to the hazard. v. The general duty clause is also limited to hazards that “are likely to cause death or serious physical harm. and (2) it failed to take reasonable steps to protect its employees. This element stands for the proposition that the risk of serious physical harm must be foreseeable. (3) correcting employer.S. Cir. or should have known of the hazard. NUCOR.3d 828 (8th Cir. Step Two: Determine whether the employer met the obligations imposed on its particular category. Otherwise. Accordingly.124 clarified the agency’s policy regarding multi-employer citations. Jordan v.COM conditions generally recognized as hazardous by the employer’s industry. 2. Industry recognition is established by “the common knowledge of safety experts who are familiar with the circumstances of the industry or the activity in question. National Realty & Construction Co. Thus. by definition. Multi-Employer Situations Who is responsible for enforcing safety regulations when the employee works for more than one employer? Who is responsible for enforcing safety regulations on a worksite with several employers? These are common questions for general contractors. a violation may not exist if the hazard was unforeseeable or if an accident was the result of freakish or implausible circumstances. 489 F. 1. No Correction Authority: If the exposing employer has no correction authority it must Page 28 .OSHAGUIDE. § 654 (a)(1) [emphasis added]. OSHRC.” National Realty & Construction Co. 1973). It has an obligation not to create the hazard. 295 F.C. or. Correction Authority: If the exposing employer has correction authority it can be cited if (1) it knew. a creating employer always fails to meet its obligation. it would not be called a “creating employer. subcontractors and employers utilizing employee leasing companies or temporary employment agencies. Compliance Officers follow a two-step process to determine which employers are cited. Creating Employer: A “creating employer” is one that causes a hazardous condition that violates a safety standard.2d 1257 (D. supra. (2) exposing employer. OSHA’s Multi-Employer Citation Policy In 1999. 2002). v. Step One: Determine for each employer which of the following four categories it comes under: (1) creating employer.

OSHAGUIDE. § 666 (b) 29 U. discovering and correcting the hazard. The penalty limits for the different classifications are: Classification Other Than Serious Serious Repeat Willful Unabated Maximum $ 7. Controlling Employer: A “controlling employer” is one that has general supervisory authority over the worksite.S. § 666 (a) 29 U.) $ 7.COM do each of the following to avoid being cited (1) ask the creating or controlling employer to correct the hazard (2) inform its employees of the hazard.C. Control can be established by contract or.000 min. such as guardrails. For example. and (3) take reasonable alternative protective measures.C. Correcting Employer: A “correcting employer” is one that is engaged in a common undertaking.C. The gravity of the violation. in the absence of a specific contract provision. § 666 (c) 29 U. and The employer’s history of previous violations.C. 4. a correcting employer might be given responsibility for installing or maintaining safety equipment. The correcting employer can be cited if it fails to exercise reasonable care in preventing.S.000 per day OSH Act 29 U. Page 29 . 3.000 $ 7.S. a controlling employer would need to perform more frequent inspections if the subcontractor had a poor safety history. by exercising control on the worksite.000 $70. A controlling employer can be cited if it fails to exercise reasonable care in preventing and detecting violations on the site. The good faith of the employer. For example.C. In imminent danger situations the exposing employer is expected to remove its employees from the job. The size of the business.S. including the power to correct safety and health hazards. or on the same worksite. 2.000 $70.000 ($5. as the exposing employer and is responsible for correcting the hazard.S. CIVIL PENALTIES The amount of the civil penalty (monetary fine) depends in part on the classification of the violation because the classification determines the maximum penalty amount that can be assessed.S.C. § 666 (j) that penalties shall be assessed on the basis of four factors: 1. § 666 (a) 29 U. § 666 (d) Penalty Factors The OSH Act provides in 29 U. OSHA will look at several factors to determine if the controlling employer exercised reasonable care: (1) size of the project (2) nature of the work (3) the subcontractor’s safety history and expertise.

The severity assessment is ranked High.COM Gravity of the Violation The Compliance Officer makes a “Gravity Based Penalty” (GBP) assessment to determine the amount of the penalty within the maximum and minimum range for each violation classification. Medium and Low: High Medium Death.e. the use of personal protective equipment (PPE). The likelihood of injury or illness is relatively low. whether the employer has a medical surveillance program.OSHAGUIDE. it is very important during the inspection for the employer to point out those factors which reduce the probability of an accident occurring .. Injuries and illnesses resulting in hospitalization or a variable but limited period of disability. frequency and duration of exposure. limited exposure during the day. OSHA FIRM § IV-C-2-e. Accordingly. Low Probability: The probability of an injury or illness occurring is categorized either as “greater” or “lesser. etc. permanently disabling injuries.” OSHA FIRM § IV-C-2-f-1.g. Greater Lesser The likelihood of injury or illness is relatively high. The Compliance Officer determines the likely “severity” of harm if an accident were to occur and the “probability” of an accident occurring to arrive at the GBP. chronic. limited access to the hazard. If the employer qualifies for penalty reductions they will be deducted from the GBP to arrive at a final penalty amount. irreversible injuries. Injuries and illnesses not requiring hospitalization and requiring only minor supportive treatment. few employees exposed. Severity: The severity assessment is based on the most serious injury or illness which could “reasonably be expected” to result from the employee’s exposure. proximity of employees to the hazardous conditions. The Compliance Officer will examine a variety of factors to determine whether the probability of injury is relatively high or low: ------number of employees exposed. OSHA FIRM § IV-C2-d. other pertinent working conditions. Page 30 .

High Gravity Moderate Gravity Low Gravity GBP of $5.500 $2.000 or greater GBP of $2. OSHA FIRM § IV-C-2-i-(5)-(a).000 SERIOUS Severity Rating Low Medium High $1. Size of the Employer OSHA’s Field Inspection Reference Manual (FIRM) allows penalty reductions based on the size of the employer.e.000 to $3.000 -$7. Employees 1-25 26-100 101-250 251 or more Percent Reduction 60% 40% 20% None Good Faith Penalty reductions are also allowed based on the Compliance Officer’s determination of the employer’s good faith. OSHA FIRM § IV-C-2-i-(5)-(b).S.000 Probability Lesser Greater OSHA defines the “gravity” of a violation by the GBP. reductions) to the unadjusted gravity-based penalty (GBP).OSHAGUIDE.COM Gravity-Based Penalty (GBP) The Compliance Officer. the good faith of the employer and the employer’s history of previous violations..000 $2.500 Penalty Reductions The OSH Act states that other penalty factors to consider are the size of the business.500 $3.000 -$7. after considering severity and probability factors.500 GBP of $1. The employer can receive a 25% reduction if it has implemented “an Page 31 . the Compliance Officer then arrives at the final GBP.500 $5. will arrive at an unadjusted gravity-based penalty (GBP).C. 29 U. The Table below illustrates: GRAVITY-BASED PENALTY (GBP) TABLE – unadjusted GBP OTHER THAN SERIOUS Probability No Severity Rating Lesser $0 Greater $1. These other factors can result in adjustments (i. § 666 (j). After deducting adjustments.500 $2.

if the GBP for a “Serious” violation found during the current inspection is $3. History of Previous Violations A 10% reduction is allowed for employers who have not been cited by OSHA for any serious.500 GBP x 4).500 (greater probability – medium severity).000 max. OSHA FIRM § IV-C-2-i-(5)-(c).000 max. A 15% reduction is allowed if the employer has a written safety program that is overall effective but has more than just incidental deficiencies.000 Page 32 . 5 2nd Repeat GBP x 4 If more deterrence GBPx 10 needed $70. See GBP Table at Page 30. Penalties for Repeat of a “Serious” Violation Smaller Employers (250 or less employees) 1st Repeat GBP x 2 Larger Employers (more than 250 employees) 1st 2nd Repeat Repeat GBP x GBP x 10 $70. However. Calculating Repeat & Willful Penalties Penalties for Repeat Violations The penalty for a repeat violation is based on the unadjusted gravity-based penalty (GBP) of the underlying violation which is classified as “Serious” or “Other Than Serious. willful or repeated violations in the past three years.COM efficient safety and health program” or the safety program “has deficiencies that are only incidental. Penalties for Repeat of an “Other Than Serious” Violation 1st Repeat 2nd Repeat 3rd Repeat $200 $500 $1.” The safety program must be written but in exceptional cases small employers (1-25 employees) can receive a 25% reduction if they have an efficient safety program which has not yet been reduced to writing.” OSHA FIRM § IV-C-2-l-(1). the OSHA Area Director still has the authority to multiply the GBP by 10 for a smaller employer if the increase is appropriate to achieve the necessary deterrent effect. the penalty for a smaller employer violating the same standard for the third time (2nd repeat) would be $14.000 ($3. For example.OSHAGUIDE. Repeat violations are only eligible for a penalty adjustment based on size of the employer.

COM Penalties for Willful Violations OSHA calculates the penalty of a willful violation based upon the “gravity” of the underlying “Serious” violation. History adjustments are at the normal rate.000 $49.000 Gravity Combining & Grouping Violations Combined or grouped violations are normally considered as one violation and are assessed one gravity-based penalty (GBP). In practice. each instance of the violation is still separately set out within that item of the citation. A citation “item” is listed on the face of the citation for each violation.500 GBP of $1. Compliance Officers just refer to the following Table in the OSHA FIRM to determine the penalty for willful serious violations: Penalties to be Proposed for Willful Serious Violations Reduction Percentage 0% 10% 20% 30% 40% High $70.500 However. High Gravity Moderate Gravity Low Gravity GBP of $5.500 $44. However.000 $36. OSHA FIRM § IV-C-2-m-(1).000 $38.000 $63. OSHA FIRM § IV-C-2-h. Id. See GBP Table at Page 29. Thus. the adjustments are as follows: Size Adjustment 1-25 employees 26-100 101-250 251 or more Good Faith Adjustment History Adjustment 30% 20% 10% None None 10% For willful “Serious” violations.000 $25.OSHAGUIDE.000 $56. OSHA FIRM § III-C-5-a.000 to $3. For willful “Other Than Serious” violations.000 $49. for willful violations. Each item on the citation has a corresponding penalty and correction date.000 $32.000 minimum penalty mandated by the OSH Act. Good faith adjustments are not allowed at all.000 $28. OSHA uses the $5. OSHA uses a $25.000 Low $40. For Page 33 .000 minimum penalty.000 Moderate $55.000 or greater GBP of $2.500 $33. size adjustments are at one-half of the normal amount. Combined Violations “Combining” refers to OSHA’s practice of taking multiple violations of a single standard having the same classification and combining it into one alleged citation item.000 $42.

However. there will be multiple paragraphs – one paragraph for each instance of the violation. the gravity of harm is much greater when the mistakes are grouped together. The term “instance” is not defined but when read in context with other provisions of the OSHA FIRM using that term. Individually. each of those mistakes would not result in an accident.OSHAGUIDE. combined violations result in a single citation item (and one penalty) whereas egregious violations result in multiple citation items thereby multiplying the number of penalties. The crash might be the result of many small mistakes. one for each of the five machines. The egregious penalty structure is also referred to as “per-instance” or “violation-by-violation” penalties. if taken individually. those five violations will be combined to form a single citation item.500.g. instead of one paragraph below the heading describing the violation. those same mistakes taken together result in the airplane’s crash. if those violations all contribute to form a single hazard. The item heading on the citation will cite the machine guarding standard only once and there will be one penalty and one correction date. When multiple violations of the same standard are combined into a single item. OSHA FIRM § IV-C-3. For example. Thus. might result in a low severity rating. In practice. For example. if there are five separate violations of the same machine guarding standard (e. However. Grouped Violations “Grouping” refers to OSHA’s practice of lumping together violations of different standards into a single citation item if those violations all contribute to form a single hazard. Perhaps an analogy would be an airplane crash. OSHA FIRM § III-C-5-b. it is evident that “instance” refers to each time a particular standard is violated. “Item 1-1 Failure to Bolt 29 CFR 1926. detailing how the guarding standard was violated on that particular machine. Egregious Penalties In egregious cases. In both cases the same safety standard is involved.00 Correct by 10/15/03. a single item on a citation might have the heading. However.COM example. The egregious penalty structure is the mirror opposite of the penalty procedure for combined violations. violations of different standards. on the face of the citation there is one heading with a corresponding penalty and correction date. the Compliance Officer can look at all of the violations collectively to determine the gravity of harm. Page 34 .120 $2.. OSHA will fine the employer for each instance of the violation even though they apply to the same standard. OSHA FIRM § III-C-5-c-(4). Below the item heading will be five separate paragraphs. five separate machines left unguarded in the same manner). However.” Below the heading will be a paragraph describing the conduct that resulted in the violation. grouping usually results in a higher gravity-based penalty (GBP) because it raises the level of probability and/or severity.

or a large number of injuries or illnesses.000 x 11). However. if the employer’s conduct is determined to be egregious. a work-site catastrophe. and (2) failure to provide employee training under the asbestos standard to those same eleven employees.5 million dollars. 4. The employer has committed a large number of violations so as to undermine significantly the effectiveness of any safety and health plan that might be in place. The employer has an extensive history of prior violations of the Act.1101(k)(9)(i) and (k)(9)(viii) which pertained to the 11 alleged failure to train violations.OSHAGUIDE. The violations resulted in worker fatalities. 2003). _____ OSHC _______ (Sept. The violations resulted in persistently high rates of worker injuries or illnesses.1101(h)(1)(i) which pertained to the 11 alleged respirator violations and 29 CFR 1926. In the Ho decision.000.” The factors that OSHA examines in determining whether egregious penalties should be applied are found in OSHA Instruction CPL 2. The egregious penalty structure has come under increased scrutiny because of a relatively recent court decision by the Occupational Safety & Health Review Commission (OSHRC). 6.000. The underlying violations which served as the basis for the egregious penalties concerned: (1) the employer’s failure to provide respirators to eleven employees during a Class I asbestos job. Eric K. which provides that the violations under consideration must be willful AND at least one of the following other categories must also apply: 1.80.000 ($70. then the total penalty arising from just that one standard would be $770. Multiple instances of violating the same standard. The employer’s conduct taken as a whole amounts to clear bad faith in the performance of his or her duties under the Act. a willful violation of a particular standard might result in a penalty of $70. If there were eleven instances. then each instance of the violation will result in a separate citation item. OSHA deemed the employer’s conduct egregious and assessed “per-instance” penalties on a “per-employee” basis which resulted in a citation totaling 1. 3. 2. The employer has intentionally disregarded its safety and health responsibilities. 5.1 The OSHRC held that “per-instance” penalties on a “per-employee” basis 1 The cited standards were former 29 CFR 1926. Ho. Page 35 . 29. If willful penalties can be called OSHA’s enforcement “hammer” then the egregious penalty structure is OSHA’s “sledge hammer. would normally be combined to form a single citation item with one penalty of $70.COM For example.

In fact. Inc. On the one hand. 3. the OSHRC was persuaded by the fact that a single act of abatement (providing respirators or providing a training program) would abate each of the eleven “per-employee” violations. 17 OSHC 1361 (1995). OSHA was unable to provide a consistent interpretation as to what constituted an individual instance of the violation.” Hartford Roofing was distinguished because it did not support penalties on a per-employee basis.2 OSHA relied on both cases as supporting penalties on a per-employee basis. OSHA misinterpreted two of the lead cases discussing “per-instance” penalties. Thus. “where a single practice method or condition affects multiple employees..” However. The plain language of the respirator and employee training standards addressed employees as a group. OSHA contended that separate violations occurred “per employee. Page 36 . we cannot allow harsh facts to result in bad law – a result which would clearly follow should we accept the Secretary’s proposed penalties. Caterpillar had nothing to do at all with tying “per-instance” penalties to the alleged egregious conduct of the employer. Hartford Roofing held just the opposite and stated. Inc. The employer’s conduct was not egregious and penalties were assessed “perinstance” – not “per-employee.” The other employee training standard did use the phrase “each such employee. not individually.” One of the employee training standards was specifically addressed to employees as a group by stating that the employer should “institute a training program for all employees.” The OSHRC used even stronger language and stated: While we agree that Ho is one of the worst employers the Commission has had come before it.COM were not appropriate in this particular case.” 2. 15 OSHC 2153 (1993) and Hartford Roofing.” On the other hand. The OSHRC ruled against “per-employee” penalties for the following reasons: 1. the standards by their plain terms do not provide employers with fair notice that they may be penalized on a per-employee basis. OSHA contended that separate violations occurred “each time a worker began working” without being trained or without 2 The full citations for both cases are Caterpillar. the OSHRC felt that this was a phrase of “inclusiveness” referring to all employees within the protected class. Caterpillar and Hartford Roofing.. The OSHRC distinguished Caterpillar because it was one of the early “per-instance” cases assessing penalties for individual record keeping infractions. However.OSHAGUIDE. In determining whether the underlying standards were addressed to employees as a class or individually. There was no dispute that the employer was what one could only charitably call a “bad actor. The respirator standard merely stated that the employer shall provide respirators and ensure their use “during all Class 1 asbestos jobs. there can be only one violation of the standard.

000. The OSHRC felt that OSHA’s interpretations conflicted because under the latter interpretation. The OSHRC noted that they were not bound by OSHA’s proposed penalties. per-day basis.C. or both. 29 U. imprisonment up to one year. However.C. Page 37 . imprisoned up to one year. as currently applied. six months in prison.000. Court of Appeals. or both. employers are also subject to criminal penalties in certain situations. the employer may be liable for a fine of up to $10. can be imposed for knowingly making any false statement.”] 5. or both. On December 8. § 666 (e). General Duty Clause violations are exempt from criminal liability. proposals by OSHA. or both. representations or certifications to OSHA Criminal penalties of $10. Condor OSHA Guides will discuss the Fifth Circuit’s decision when it becomes available and the reaction to that decision by the other federal circuit courts in future editions of this manual. OSHA was incorrect that the OSHRC must defer to the agency’s decision to prosecute a case on a per-employee basis.S.000 or six months imprisonment.000. This is commonly referred to as a “criminal willful violation. A second conviction is punishable by a fine of up to $20. employers can be criminally prosecuted if they willfully violate a specific safety standard that causes the death of an employee. § 666 (f). 4. OSHA could conceivably cite an employer on a per-employee. Congress expressly granted to the OSHRC the sole authority to determine penalties. U. it appears that the egregious policy.S. 2003.OSHAGUIDE. employers are penalized differently for the same violative conduct merely because OSHA determines some of them to be “bad actors. CRIMINAL PENALTIES Under the OSH Act. Quite the contrary. 29 U.S. The fines are called “Proposed Penalties” because they are just that. OSHA Administrator John Henshaw issued a statement announcing that OSHA was appealing the Ho decision to the Fifth Circuit. Giving advance notice of an inspection Any person who gives advance notice of an inspection can be fined up to $1. may run afoul of their sense of “equal treatment under the law. In the absence of a consistently applied interpretation.” [Although not expressly stated by the Commission.” The OSH Act imposes criminal liability for each of the following: Willful violation causes the death of an employee If a willful violation causes the death of an employee. False statements.COM respiratory protection.

OSHA Compliance Officers) can be fined up to $5. The citation document is formally called a “Citation and Notification of Penalty. The criminal sanctions can double if a dangerous weapon is used. Chicago Magnet Wire Corp. plan or other document required by the OSH Act.g. cert. App. The employer’s written notification is formally called a “Notice of Contest. 534 NE2d 962 (1989). More common is criminal prosecution in States with State Plans. CONTESTING A CITATION Filing the Notice of Contest If the Compliance Officer observes safety or health violations. denied 493 US 809 (1989.COM representation.21 (c). 128 Ill.. 1987). courts have been rejecting such “preemption” arguments. a citation will be issued setting dates of correction for each of the violations. Employers may also be subject to criminal liability under State statutes in addition to the criminal sanctions imposed under the OSH Act.S. The employer must give OSHA written notice that it disagrees with the citation. or both. 29 CFR § 1903. A civil monetary penalty for each of the violations will also likely be assessed. In States with federally approved State Plans prosecutors enforce the criminal sanctions of those plans. Criminal prosecution under the federal OSH Act is relatively rare but may increase as a result of OSHA’s Enhanced Enforcement Program (EEP). described more fully in the prior section of the manual discussing EEPs. 517.” The employer has the right to contest the citation if it disagrees with any of the following: (1) the alleged violations. reversed on other grounds 510 NE2d 1173 (Ill. Forcibly Resisting or Assaulting a Compliance Officer Any person who forcibly resists or assaults Department of Labor personnel (e. (3) the penalty amounts. In States which opted out of federal enforcement but do not have approved State Plans. 29 U.C. 29 CFR § 1903. § 659 (a) . record. The filing is timely if it is postmarked within the 15-day period.OSHAGUIDE. liability is based on general criminal statutes. impris0ned up to three years. (2) the abatement period. or certification in any application. Sundays and federal holidays.S. Page 38 . The Notice of Contest is submitted to the OSHA Area Director. Dec. However. or. Some employers have argued that the criminal provisions of the OSH Act preempt State criminal statutes. 126 Ill. 29 CFR § 1903.000.17 (a). § 666 (g).17 (a).” THE EMPLOYER MUST FILE A WRITTEN NOTICE OF CONTEST WITHIN FIFTEEN (15) WORKING DAYS OF THE EMPLOYER’S RECEIPT OF THE CITATION AND NOTIFICATION OF PENALTY.C. See Illinois v.2d 356. The term “working days” excludes Saturdays. 29 U.

Thus.15 (a).” 29 U. many employers favor broadly worded Notices of Contest. the employer must make sure that the Notice of Contest is timely filed even if settlement appears close. the employer is still required to abate the violations within the specified abatement period if it is only contesting the penalty amounts. If the citation is contested.)” WARNING: Many jurisdictions NOT regulated by federal OSHA. Failure to contest part of citation can be considered a waiver of any defenses to that portion of the citation. 29 CFR §§ 1903. it must clearly identify the employer’s basis for filing the Notice of Contest – i. Thus.OSHAGUIDE. citations. return receipt requested. However. OSHA will hold the informal conference before the expiration of the 15working-day contest period. § 659(b). 29 CFR § 1903. This is because a general violation is more subject to providing the foundation for a repeat violation.20. Case Referral & Pleadings Page 39 . it can use the informal conference to extend the abatement dates. The primary purpose of the informal conference is to discuss the alleged violations. A better practice is to send the Notice of Contest by certified mail. However. The informal conference will not stay the 15-working-day period in which to file a Notice of Contest.18 (a).17 (a). 1903.COM Regular first-class mail is sufficient for filing. To facilitate settlement. and/or proposed penalties. proposed penalties. 29 CFR § 1903. abatement dates.S. most notably California. general contest language is. most employers use the informal conference to negotiate an informal settlement agreement with OSHA. “(Insert employer name) disagrees with and contests all alleged violations. the employer can request an informal conference with OSHA.e. employers will often present mitigating factual information that was not brought to light or focused on during the inspection. The request should be submitted to the OSHA Area Director. Employers also will sometimes request that a general violation be reclassified as a specific violation.C. The written Notice of Contest does not need to be in any particular format. abatement period. abatement dates and proposed penalties contained in the Citation and Notification of Proposed Penalties issued on (insert date) with respect to (insert facility) at (insert location. Even so. do not accept broad contest language. However. abatement is placed on hold as long as employer’s notice of contest was made “in good faith and not solely for delay or avoidance of penalties. If the employer concedes that the violations occurred. Informal Conference After receiving the citation. and to correct errors contained in the citation. An example of broad.. whether the employer disagrees with the citation.

The employer’s answer is a plain statement denying all allegations in the complaint that it wishes to contest. litigation of contested citations is becoming increasingly complex and hearings are conducted pursuant to the procedural rules set forth by the OSHRC. the Federal Rules of Evidence apply. There is no formal mediation under the OSH Act or the procedural rules of the OSHRC. Within 20 days of receiving the Notice of Contest. The employer’s answer must also include any affirmative defenses that it wishes to raise. § 661 (f). 29 CFR § 2200. Hearing Procedure The OSHRC assigns the case to an Administrative Law Judge (ALJ) who schedule and preside at the hearing. will refer the case to the Occupational Safety Health & Review Commission (OSHRC).34 (a).2. The complaint sets forth the alleged violations and the rationale behind the abatement period and penalty amounts. 29 CFR § 2200. The employer must file a written answer within 20 days of being served with OSHA’s complaint. Employers can represent themselves or be represented by attorneys. 29 CFR § 2200. The OSHRC encourages settlement at this level.60. the employer might wish to have an attorney present to ensure a level playing field. This document advises the parties of the hearing date.g. Attorneys represent OSHA.34 (a)(2).e.33. The parties are entitled to 30 days advance notice of any hearing. 29 CFR § 2200. 29 CFR § 2200.S. It provides the initial forum for hearing contested cases under the OSH Act. etc.C. 29 CFR § 2200. It also gives the parties instructions for the conduct of the hearing including the exchange of evidence. Rulings concerning the admission of evidence and on submitted motions can seriously affect the outcome of a particular case. The employer has the burden of proving any Page 40 .. At hearing. OSHA must file a complaint with the OSHRC.34 (b)(1). Failure to raise affirmative defenses in the answer may prevent the employer from relying on them at hearing – unless the judge finds that the employer raised the defense as soon as practicable.34 (b)(2). However. time and location. the ALJ will mail the parties a Notice of Hearing and Instructions. 29 CFR § 2200. 29 CFR § 2200. Employers and employees both have the right to participate in the hearing. The OSHRC is an independent agency not affiliated with OSHA or the Department of Labor. Accordingly. 29 CFR § 2200. OSHA has the burden of proving each of the elements of the violations listed in the citation. 29 U. or the citation involves a serious injury or willful violation. greater hazard. etc. Legal representation is especially advisable if the employer has a problem with repeat violations.34 (b)(4). employee misconduct. In the absence of OSHRC rules. However. the parties can sometimes accomplish much the same purpose by requesting a pre-hearing conference with the ALJ. A few weeks following the answer. 29 CFR § 2200.OSHAGUIDE.34 (b)(3).COM The OSHA Area Director within 15 days of receiving the Notice of Contest.51 (b).

The ALJ made findings of fact not supported by a preponderance of the evidence. Relatively few citation items. The ALJ’s recommended decision is also filed with the OSHRC. E-Z Trial In 1995.66.COM affirmative defenses. introduce evidence and conduct cross-examination. The employer can also file a Petition for Discretionary Review by the OSHRC. The ALJ can recommend that the citation items and/or penalties be affirmed. The parties can file written briefs with the ALJ and request transcripts of the hearing to facilitate preparation of the briefs. The petition must be filed within 10 days of when the ALJ’s recommended decision was transmitted to the parties – or 20 days after the ALJ has docketed his report.90. the OSHRC introduced the E-Z Trial procedure. The party with the burden of proof must establish the fact by a “preponderance of evidence” (more probable than not). 2. A substantial question of law. A prejudicial error was committed.S. cases must not involve complex factual or legal issues.91 (b). 29 CFR § 2200.200 (a). No willful or repeat violations.69. The grounds for review are as follows: 1. Its purpose is to provide a simpler and less expensive method of resolving less complex contested citations.C. 2. Proposed penalty less than $10. Circuit Court of Appeals. it has 60 days to appeal the order to the appropriate U. No fatality. Each of the parties can call witnesses. 29 CFR § 2200.S. 29 CFR § 2200. If the employer disagrees with the final order. 29 CFR § 2200. To be eligible.S. Such cases generally include one or more of the following characteristics: 1. 4. Page 41 . 5. or 4. The OSHRC then has 30 days to adopt the ALJ’s decision or recommend review by the full Commission. 29 U. § 661 (j). the ALJ makes a recommended decision that is transmitted to the parties.C.91. policy or abuse of discretion is involved. 29 CFR § 2200. 29 U. The ALJ’s decision is contrary to law. 3. After considering the evidence. modified or eliminated. Hearing expected to take less than two days.000. § 660 (a).OSHAGUIDE. 3. The ALJ’s decision either becomes a final order of the OSHRC (if it is adopted or no review is requested within 30 days) or the OSHRC conducts a review and issues it own decision which becomes a final order. 29 CFR § 2200.

A.. v.3d 815 (6th Cir. ALJ usually issues decision from the bench. Discovery is not permitted except as ordered by the ALJ. v. Carbone Construction Co. Astra Pharmaceutical Products.P. non-compliance with the standard..COM E-Z Trial procedures are simplified in a number of ways:        Complaints and answers are not required. the cited standard applies. D. Federal Rules of Evidence do not apply.. OSHRC. 117 F.OSHAGUIDE. Oral arguments instead of written briefs.2d 69 (1st Cir. the most effective defense is to demonstrate that OSHA failed to produce sufficient evidence of one or more of the elements -. 1997). 2. . Inc. and employer knowledge. 19 OSHC 1431 (2001). Secretary of Labor. applicability of the standard.e. Inc. by OSHA. 19 OSHC 1404 (2001). .3d 122 (4th Cir. 1998). A Compliance Page 42 . 2001). employees were exposed or had access to the hazard. Hearings are less formal. 9 OSHC 2126 (1981). and. or with reasonable diligence should have known. Collins Construction Co. Rather. R. OSHRC. v. 166 F. the employer knew. Thus. 1982). 3. This is understandable because the rules are vast and cover several industries and innumerable processes. they are elements that OSHA must prove to establish a violation. Saugus Construction Corp. The above items are not “defenses” that the employer has to prove. Applicability of the Standard & Non-compliance Applicability of the Standard: OSHA must show that the cited standard is applicable. employee exposure to the hazard. OSHA must prove the following elements by a preponderance of the evidence to establish a violation: 1.3d 691 (2d Cir. Precision Concrete Construcion. EMPLOYER DEFENSES Attacking OSHA’s Burden of Proof The best defense is a weak offense . the employer failed to comply with the cited standard. OSHA provides employer with documents early in the proceeding. N & N Contractors. There are times when the Compliance Officer may not properly understand the applicable rules.. 255 F. of the hazardous condition. affirmed in part 681 F. 4.i.

Employee Exposure Traditionally. D. Likewise. the paraphrased statements might be inaccurate or incomplete. this is their business.. Inc. After all. Accordingly. the employer will often have several experts within it’s own company (e.” On the other hand.e.T. Errors in the inspection report will sometimes establish that the employer was actually in compliance with the standard. Early federal cases held that in order for employee exposure to exist there must be direct physical endangerment . licensed engineers. S&G Packaging Co. the employer can often use expert testimony to its advantage.3d 122 (4th Cir.COM Officer is by nature a generalist and cannot be expected to be an expert in all fields. employer experts might show that OSHA interpreted the standard incorrectly. For example. Even so. However. N&N Contractors. lack of employee access still bears on whether exposure was reasonably predictable. Thus. the issue has been whether OSHA must show “actual” employee exposure versus “potential” employee exposure.” The early cases often focused on “employee access” to the area and the boundaries of the danger zone. evidence that the employee was actually in the “zone of danger. Some Compliance Officers may have prior experience in private industry but not usually to the extent that their testimony would be considered “expert testimony. etc. An employer expert can sometimes show that the cited standard did not apply. 2001).). There have been instances where machines were misidentified. 19 OHSC 1305 (2000). experts can explain that the employer was in compliance given a correct interpretation of the standard. Lack of employee exposure can sometimes be established by showing that employees did Page 43 . The inspection report often contains employee statements paraphrased in written notes by the Compliance Officer. Construction Co. OSHA generally relies on testimony from the Compliance Officer and the officer’s inspection report to establish its case.i. or will contact. Essentially.OSHAGUIDE.. it was not actually violated. this becomes a “battle of the experts” between the Compliance Officer and the employer expert. etc. There are also situations where non-compliance is based on faulty factual information. it is always recommended that the employer review the inspection report with the employees interviewed by OSHA to check for errors. the zone of danger. The more recent trend is that OSHA need only show that it is “reasonably predictable” that employees have contacted. 255 F. experts can demonstrate that the employer was actually in compliance given the employer’s particular set of circumstances. 19 OSHC 1503 (2001). The Compliance Officer often has less comparative expertise than the employer expert in the employer’s particular field. OSHRC. “potential” exposure is gaining more acceptance. Accordingly. certified safety professionals. In other words. training dates omitted.. Non-compliance with the Standard: Employer experts can sometimes show that. v. even if the standard applied.g.

18 OSHC 1937 (1999). Procedural Defenses Defective Inspection OSHA must follow certain procedures when it performs an inspection. Employer Knowledge OSHA must prove that the employer knew. of the violative condition. 29 U. See also Secretary of Labor v.. It has been argued OSHA’s failure to follow its own procedural rules when conducting an inspection should result in the dismissal of the entire citation or the exclusion of evidence. Trinity Marine Nashville Inc. N & N Contractors Inc.. Rather.. 18 OSHC 2121 (2000). Accordingly.S.3d 1232 (11th Cir. Ragnar Benson Inc. The lack of employer knowledge can sometimes be established if the employer (including supervisory staff) were unaware of the hazard. S&G Packaging Co. 19 OSHC 2001 (2002). employer knowledge defenses generally only succeed if the lack of knowledge was reasonable. Thus. Procedural arguments usually fail unless OSHA did Page 44 . 19 OSHC 1015 (2000). or constructive knowledge. The courts have been rejecting such arguments. Fluor Daniel v. OSHA led the employer “down the garden path” by letting it believe that it was in compliance.COM not have access to the area of the alleged hazard because it was protected by guards. The constructive knowledge problem presents something of a “Catch-22” for the employer. Ingram Plastering Co. the issue is whether the employer had knowledge. OSHRC. An employer cannot defeat the knowledge requirement by being willfully ignorant of his surroundings. 295 F. 19 OSHC 1503 (2001). OSHA then has the burden of showing that the employer’s failure to discover the condition was due to a lack of reasonable diligence. In other words. the employer must show that it conducted adequate safety inspections but still failed to discover the violative condition. In this situation.73 (a). The employer knowledge requirement does not refer to employer knowledge of the applicable safety codes. If he knew of the condition he had knowledge.C. or with the exercise of reasonable diligence should have known. warning signs. of the violative condition. an employer will be presumed to have “constructive knowledge” if the condition could have been discovered with reasonable diligence. If he did not know of the condition he may come across as uninvolved or exhibiting a failure to train and supervise. etc.. OSHA’s Failure to Cite the Same Violation During Prior Inspections: Some employers have argued that OSHA’s failure to cite the same violation during prior inspections amounted to tacit approval of the employer’s practice.OSHAGUIDE. barriers. § 666 (k). 2002). 29 CFR § 2200. The essence of this argument is that OSHA’s failure to cite on prior occasions lulled the employer into believing that it was in compliance with OSHA standards..

a. Steel Corp. 576 F.” 29 U. If no credentials were presented at all.” 29 U..S.a.COM not substantially comply with procedural requirements and. & I. the presentation of OSHA credentials is similar to a police officer “flashing his badge” to prove his identity. although the presentation occurred one hour after the inspection began.. v. The courts never reached a clear consensus on this Page 45 . § 657 (a). Inc. Dorey Electric Co. Upon arrival. Thus. The Compliance Officer then “grabs” a foreman and conducts the inspection anyway.k.”] Impairing the Employer’s Walkaround Rights: The OSH Act provides that an employer representative “shall be given an opportunity to accompany” the Compliance Officer during the inspection “for the purpose of aiding such inspection. Improper Presentation of Credentials: The OSH Act conditions an inspection upon the proper presentation of credentials to the “owner. § 657 (a). 1975) cert.” were mandatory or optional.C. the Compliance Officer will present his or her “credentials” which usually consists of an official badge or OSHA identification card. “walkaround rights. 516 F. Inc. the courts will examine whether this failure resulted in substantial prejudice to the employer. Marshall v. Some employers have argued that an improper inspection resulted if the Compliance Officer presented credentials to the wrong person.. 553 F. In practice..S.” 29 U. supra. 18 OSHC 1927 (1999).C. In order for prejudice to occur. Accu-Namics. [See this manual’s prior discussion of privacy interests in the section “Warrant Exceptions. The courts tend to agree by holding that the term “agent in charge of the workplace” encompasses anyone with apparent authority at the work site. A similar issue involves the late presentation of credentials after the beginning of the inspection. Early cases focused on whether the employer’s right of accompaniment. OSHA’s failure to comply prejudiced the employer.S. the Fourth Amendment right to privacy must apply. the Compliance Officer substantially complied with the credentials requirement.2d 809 (10th Cir..OSHAGUIDE. Drum Construction Co. Inc. The OSHRC has held that. an employer could conceivably argue that there was no substantial compliance if credentials were presented well after the inspection began. because there is no right to privacy if the violations occurred in public or in plain view of the Compliance Officer. § 657 (e). operator. This issue most often arises in cases where the premises owner and/or senior management officials are absent from the workplace. denied 425 U. Inspections are still proper. OSHRC. Accu-Namics..2d 828 (5th Cir. 903 (1976). Inc. 1 OSHC 1751 (1974). 1978) (most “senior employee” left at the site deemed agent in charge).C. OSHA contends that such inspections are permissible because the Compliance Officer presented credentials to the “agent in charge of the workplace. Accu-Namics.2d 357 (4th Cir.S.F. C. v. despite the failure to present credentials. 1977) (foreman was deemed agent in charge). or agent in charge of the workplace. further. OSHRC.

1975) cert. Chicago Bridge & Iron Co. It is insufficient for the Compliance Officer merely to surmise that employees were “probably” exposed to the hazard. Accordingly. General Electric Co. Presumably. 516 F. Prejudice is normally considered the employer’s opportunity to present mitigating factual information during the inspection. therefore. Wylie Construction Co.S.C. Thomas A.. Apparently. Defective Citation Late Citation – Statute of Limitations: A citation cannot be issued more than “six months following the occurrence of any violation. 1977). 1976). a citation would be untimely if OSHA failed to produce evidence that the standard was violated in the six-month period between the inspection and the citation.2d 371 (7th Cir.2d 947 (8th Cir. The OSHRC rejected the employer’s argument that its walkaround rights were violated on the grounds that the employer was not prejudiced. employees did not have access to the hazard during the six-month period. Thus.S.2d 67 (2nd Cir. A constructive waiver would occur if the employer was aware of the inspection but refused to cooperate or participate in the inspection. OSHRC. Secretary of Labor v. Conversely. In practice.OSHAGUIDE. a longstanding violation can be cited as long as employees were exposed to the hazard in the six months preceding the citation. the employer would be unlikely to prevail if OSHA’s refusal was based on lack of cooperation or obstruction of the inspection. prejudice would occur if the employer was unaware of the inspection and. Even so. there would be no prejudice if the employer constructively waived its walkaround rights. One court also has held that there is no prejudice if the employer can present the same mitigating factual information at the hearing. the cases also suggest that the employer would be prejudiced if OSHA refused the employer’s request to participate in the inspection. Marshall v. Western Waterproofing Co. However. the six-month period generally begins to run on the day that the Page 46 . Accu-Namics. 7 OSHC 2232 (1979). there was no mitigating information that could explain away the photographs. 903 (1976).. v.” 29 U. In one recent case. 19 OSHC 2060 (2002). C. 1976). On the other hand. unable to assert its walkaround rights and present mitigating information. For example it may be the case that.. OSHRC... Inc. Inc. There also would be no prejudice if the employer affirmatively waived its walkaround rights by declining to participate in the inspection. Id. the lack of employer prejudice appears to outweigh the Compliance Officer’s failure to substantially comply with inspection procedures. v. 560 F. It appears that the most common method of computing the six-month period is to count forward from the date of the inspection. Inc. the Compliance Officer took photographs from the parking lot before presenting himself to the company office. Accu-Namics.2d 828 (5th Cir. 540 F.COM issue. § 658 (c). 1 OSHC 1751 (1974). OSHRC. a citation could be untimely if OSHA failed to produce evidence that the standard was violated in the six-month period prior to the citation date. denied 425 U. Likewise. Instead. even though a hazard existed. v. 535 F. Galante & Sons. the emphasis shifted to whether there was substantial compliance by OSHA and whether the employer was prejudiced.E.

18 U.” This defense also goes by several other names such as “Unpreventable Employee Misconduct. In this situation.. the strongest affirmative defense is “Employee Misconduct.” etc. or order alleged to have been violated.2d 926 (7th Cir. rule. regulation..C. Alden Leeds. therefore.A. 18 OSHC 1323 (1998). Employee Misconduct The most frequently used and. Implementing the safety standard is not feasible. 1978).3d 256 (3d Cir. L. L & B Products Corp. In short.E. 569 F. More specific safety standards apply. the employer has the burden of proving the following affirmative defenses: 1. B. In other words.C.COM Compliance Officer arrives and conducts the inspection and either observes employee exposure to the hazard or obtains information sufficient to show that exposure occurred. hampered the employer’s ability to prepare a defense. including a reference to the provision of the Act.W. “prejudice” would mean that the citation was too vague and. 3. 298 F. perhaps.” 29 U.. Compliance increases the hazard. Inc.2d 1303 (5th Cir. an employer also might be able to argue “lack of particularity” in the original citation in a subsequent citation for failure to abate. Similarly. Harrison Lumber Co. OSHRC. § 658 (a). 4. The employer must show prejudice to assert the “lack of particularity” defense.S. 1986). Meyers Co. the citation must reference the safety standard and describe how the standard was violated. This satisfies the due process requirement that the employer have fair notice of the alleged violations so that it can prepare an adequate defense.S. Affirmative Defenses An “Affirmative Defense” means that the employer has the burden of proof. Dow Chemical U. Employers should be aware that the six-month “statute of limitations” for citations does not apply to criminal violations of the OSH Act. Brock v. 3 OSHC 1026 (1975). See Marshall v. standard. and. 801 F.OSHAGUIDE. 2002). § 3238.” “Isolated Incident Defense.S. The Page 47 . Accordingly. 2.. Lack of Particularity – Citation Too Vague: The citation must “describe with particularity the nature of the violation. Rather. Citing the standard and providing a description of the violation also provides the employer with sufficient information for abatement. the citation must describe the hazardous condition sufficiently enough to put the employer on notice of what must be corrected. the criminal statute of limitations applies which is usually the five-year statute of limitations for federal non-capital crimes.. The violation is the result of employee misconduct. v.

OSHA. There must be some evidence that the employer actually enforced the safety program when it was violated. 599 F. cannot erect guards because of limited work space.COM essence of this affirmative defense is that the employee violated company safety policies and that such conduct was not preventable. George Campbell Painting Corp. v.2d 1135 (8th Cir. Pride Oil Well Serv. 15 OSHC 1809 (1992). DunPar Engineered Form Co.3d 100 (1st Cir.e. Inc.3d 861 (6th Cir.. OSHRC. Reynolds Inc. 1 OSHC 1412 (1973). 19 OHSC 1653 (2001). Infeasibility/Impossibility This defense requires the employer to prove that compliance with the standard is not feasible. 1997). P. Secretary of Labor. this means that the employer’s safety program goes on trial. In practice.2d 453 (1st Cir..OSHAGUIDE. v. Southern Soya Corp. Inc. OSHRC.3d 691 (2nd Cir. 1979).. “Economic Infeasibility” means that the cost of compliance would be prohibitive.. “Practical Infeasibility” means that compliance would not be practical because it would be impossible to perform the work . Brock v. 2000). The second reason is that the actions of the supervisor are often imputed to the employer. Gioioso & Sons.. 221 F. To establish an employee misconduct defense. CMC Electric. The first reason is that supervisor misconduct can be evidence that the employer’s safety program was not effective or adequately enforced. (3) the employer took steps to discover violations of the work rules. Inc. Similarly. Raytheon Constructors. v. 19 OSHC 1311 (2000). the employer must prove: (1) it had work rules designed to prevent such conduct. The defense fails if compliance is possible. The essence of this defense is that compliance would make it functionally impossible or infeasible to perform the work and that alternative means of employee protection were either used or not available. 1988). General Dynamics Corp. 1997). E&R Erectors. v. There are two reasons for this.g. Supervisor Misconduct: A supervisor’s misconduct will very rarely shield the employer from safety violations. 107 F.3d 157 (3rd Cir.A. v. The net effect is that employers face greater liability for supervisory misconduct. Jensen Construction Co. 115 F. There are three types of infeasibility. 18 OSHC 1815 (1999). D. Inc. (2) the work rules were effectively communicated to the employees. 1997). “Technological Infeasibility” means that it is technologically impossible to make a machine or process comply with current standards. of Leesville. Secretary of Labor.. As a result. Stevedoring Services of America. 843 F. Collins Construction Co. mere inconvenience or added Page 48 . 18 OHSC 1929 (1999).. some employers have argued that the disobedient supervisor was actually an employee in order to take advantage of the employee misconduct defense. 117 F. 7 OSHC 1477 (1979). It is not enough that the employer has a safety program written on paper. Infeasibility/impossibility is a tough burden for the employer to meet.. and (4) the work rules were adequately enforced when they were violated.

585 F. & Others Early on. 8 OSHC 1378 (1980). Loomis Cabinet Co. the employer is subject to safety and health regulations promulgated by the other federal agency instead of OSHA. 131 F. Inc. For example..3d 938 (9th Cir.2d 1327 (6th Cir. Herman. 1994). Supreme Court held that preemption only applies if the federal agency’s standards address occupational safety and health and the federal regulations at issue address the same working conditions as the OSHA standards. 29 U. In areas where no federal standards exist. 738 (2002) (Coast Guard general marine safety regulations did not preempt OSHA standards). 1994).3d 32 (2nd Cir. Postal Service pursuant to the Postal Employees Safety Enhancement Act of 1998.S. v. Dole v. despite these memoranda of understanding. v. it appears that federal agency preemption only applies where federal agency standards and OSHA standards address the same conditions..S.C. OSHA also has jurisdiction over the U.S. U. Caterpillar Inc. 122 S. 20 F. § 653 (b)(1).. Diebold Inc. Thus. The court will also examine the degree to which the federal agency actually exercises its authority over safety and health. Military. Inc. In addition to proving the greater hazard. v.3d 666 (7th Cir. 876 F. OSHA even issued a citation to West Point – the military academy for the U.” Even if preemption does not apply. Army. The U. USPS. OSHA and several units of the federal government developed an “understanding” concerning those areas over which OSHA would have jurisdiction. 1997).S. Chao v. Cir. OSHA can enforce its own safety standards. In that case. 1978). 235. Preemption by Another Federal Agency A citation may also be invalid because OSHA does not have jurisdiction over the employer. v. Bancker Construction Corp.C. 1989). employers may have a defense if they reasonably believed that other federal regulation applied. 31 F. Williams Enterprises Inc. 534 U. Pennsuco Cement & Aggregates. Marshall.S. OSHRC. Greater Hazard This defense requires the employer to prove that compliance would be more hazardous than noncompliance. OSHA now has jurisdiction over all military facilities in the state of New Mexico. However. Mallard Bay Drilling. This is known as “preemption. the general trend has been for OSHA to assume more control over occupational safety and health.2d 186 (D. OSHA v. the employer must establish that there are no alternative means of employee protection and that a variance application was inappropriate or rejected.COM expense is not sufficient.OSHAGUIDE. These “Memoranda of Understanding” can be viewed on OSHA’s website. Reich. OSHA does not have jurisdiction where the federal government has maintained control over employee safety and conditions. Page 49 .S. It is expected that OSHA’s enforcement powers will continue to expand in relation to the federal government.Ct.

OSHAGUIDE. Of course.. there are a number of services provided: Services Provided by OSHA * The following quoted information is taken directly from OSHA Publication 3000 (Rev. The initial on-site visit will last two to four days and evaluate the effectiveness of the employer’s programs. as well as limited assistance away from the worksite. 2002). SHARP Program OSHA’s Safety and Health Achievement Recognition Program (SHARP) is basically a more extensive long-term version of the VPP program. will still be investigated in the usual manner. “Merit” level participants are evaluated every 18 months. No penalties are proposed or citations issued for hazards identified by the consultant.COM LOSS PREVENTION SERVICES If the employer wishes to take some precautionary measures prior to an inspection.. The frequency of the periodic visits depends on the employer’s VPP level. The employer’s only obligation is to correct all identified serious hazards within the agreed upon correction time frame. Again. It appears that the deferral from inspections under the SHARP program can be renewed on an annual basis whereas the exemption under the VPP program appears to be a one-time event just through the period of participation. OSHA consultation assistance will not provide the employer’s name or workplace information to OSHA enforcement. etc. One of the advantages is that VPP participants are exempt from routine programmed inspections during the period of their participation. “Star” level participants are evaluated every 3 to 5 years. accidents.” “Consultation assistance is available to small employers (with fewer than 250 employees at a fixed site and no more than 500 corporatewide). complaints. accidents. OSHA’s Consultation Service “OSHA’s consultation service provides free. The program is more demanding but in exchange the employer is granted deferral from all programmed inspections for a period of 1 year initially. Employers may also receive training and education services. or 2 years upon renewal. will still be investigated in the usual manner. OSHA will offer ways to upgrade the employer’s programs and will make periodic visits to monitor the employer’s progress. “Demonstration” level participants are evaluated annually. Page 50 . A comprehensive consultation includes a hazard survey of the worksite and an appraisal of all aspects to the employer’s existing safety and health program. complaints.” VPP Program OSHA’s Voluntary Protection Program (VPP) is basically a more extensive safety consultation. etc. onsite assistance in developing and implementing effective workplace safety and health management systems.

etc. Since OSPP membership is corporate. They are also used in cases where the employer wishes to retain a high degree of control or in cases where trade secrets are a concern. management. cooperative relationships between OSHA. trade and professional associations.” There are two types of OSPP’s: Comprehensive and Limited. Comprehensive OSPP’s concentrate on establishing comprehensive safety programs at partnering worksites. Again. Page 51 . The benefit is combining resources and knowledge within the group to reduce injuries. Limited OSPP’s focus on specific safety and health issues. this is at no cost to the employer. These services are implemented by the carrier’s Loss Control Consultant. in some States. They keep a log of their contact with the employer and such information can be useful if an inspection occurs. employee representatives. Of course. Loss Control Consultants are a good resource and can assist the employer in developing and implementing the required safety programs. Services Provided by Others Workers’ Compensation Carriers In some States the employer’s workers’ compensation carrier is required to provide free loss prevention services. They are often used in cases requiring more in-depth assistance than can be provided with workers’ compensation loss prevention services. These partnerships are voluntary. this type of specialized help does not come free but it is very often well worth the cost. Independent Safety Consultants Independent safety consultants are also a good resource. and government to foster improvements in workplace safety and health. there is no exemption from inspections for partnering worksites. rather than individual.COM OSHA’s Strategic Partnership Program (OSPP) “OSHA Strategic Partnerships are alliances among labor. and others such as trade unions. OSPP’s are the newest of OSHA’s cooperative programs.OSHAGUIDE. employers. Loss Control Consultants should be contacted in the event of an inspection. lower workers’ compensation premiums. universities and other government agencies.

e. plan or other document required by the OSH Act. Agent of the Employer . Administrative Law Judge (ALJ) . or certification in any application. foreperson or other person in charge or control of all or part of the place of employment.The employer must file a written answer within 20 days of being served with OSHA’s complaint.A citation changed by OSHA. Answer . usually to assert an affirmative defense. This person can consent on the employer’s behalf to a warrantless inspection or be the employer representative during an inspection.. However.34 (b)(1). The employer’s answer is a plain statement denying all allegations in the complaint that it Page 52 .A Notice of Contest that is amended by the employer.000 per day for each day past the correction dates set forth in the citation.S. This should be filed as soon as the employer becomes aware of an affirmative defense. After the citation. the employer could argue that it was prejudiced if the citation was amended shortly before the hearing and it alleged different violations or raised new legal issues. § 666 (g). Accident Investigation .000 or six months imprisonment. ALJ decisions are reviewed by OSHRC which either adopts the ALJ’s opinion or issues a decision of its own. 29 CFR § 2200. representation. Affirmative Defense . Criminal penalties of $10. Amendments are liberally granted. Penalties for failure to abate (or “nonabatement”) can be as high as $7.The manager. the employer should exercise extreme care when completing abatement certification documents. the employer must notify OSHA that the hazard has been corrected or “abated. superintendent.An unprogrammed (i. record. Amended Citation . Abatement Certification .OSHAGUIDE.A defense in which the employer has the burden of proof.OSHA now requires that the employer submit written Abatement Certification to the OSHA Area Director as proof of abatement.COM GLOSSARY Abatement . unscheduled) inspection made to determine the cause of an accident.C. Thus. Amended Notice of Contest . can be imposed for knowingly making any false statement.The OSHA term for correction of the violation.An inspection following the citation to verify abatement of the violations listed in the citation.” OSHA has the option of doing a follow-up inspection to assure that the hazard was corrected. Abatement Inspection . or both. 29 U.The Occupational Safety & Health Review Commission (OSHRC) official who initially decides a contested citation hearing.

Failure to raise affirmative defenses in the answer may prevent the employer from relying on them at trial – unless the judge finds that the employer raised the defense as soon as practicable.Another term for contesting a citation. You can go to the “OSHA Links” page at www. etc. The term “Circuit Court” is sometimes used because the U. employee misconduct. Closing Conference . An OSHA Area Office is located in most States. Appeal . 2nd Circuit. It is more formally called a “Citation and Notification of Penalty.Information received by OSHA that a safety standard is being violated.This refers to the OSHA practice of combining multiple violations of the same standard into a single violation.e. Complaint .COM wishes to contest. OSHA always has the burden of proof in establishing a violation.com to obtain contact information for all OSHA Area Offices. The complainant’s identity will be kept confidential if the complainant so requested. If the complainant did not request confidentiality.The conference between the Compliance Officer and the employer conducted after the inspection process is completed. Burden of Proof . In the case of a contested citation. 29 CFR § 2200. Courts of Appeal are divided into 12 federal circuits – 1st Circuit..The monetary fines assessed by OSHA for safety violations.The document issued by OSHA after the inspection to cite violations. Notice of Contest) within 15 days of its receipt of the citation.OSHAGUIDE.34 (b)(4). seven machines in violation of the same machine-guarding standard would result in only one violation of that standard.g. Citation . The circuit courts are the forum for contested citations on appeal from the Occupational Safety & Health Review Commission (OSHRC). Such information may. Area Director – The Director of an OSHA Area Office. and usually does. etc. Circuit court decisions that are appealed go to the U. Combined Violation . greater hazard.The legal standard for weighing the evidence. For example. The employer’s answer must also include any affirmative defenses that it wishes to raise.34 (b)(3).S. the standard is the “preponderance of the evidence” (more probable than not). result in an inspection.34 (b)(2). and it is Page 53 . The employer has the burden of proof when it is asserting an affirmative defense. Circuit Court – One of the terms used to refer to the United States Courts of Appeal. 29 CFR § 2200.e.” The citation will usually include penalty amounts and set correction dates for the violations. 29 CFR § 2200.S. Supreme Court. Civil Penalties . The employer must file the appeal letter (i. The Compliance Officer will advise the employer about the specifics of the citation and other related matters.oshaguide.

S. It often bears a photograph of the Compliance Officer.001).The term used to refer to the employer’s appeal. Those standards are found in the Congressional Federal Register (C. 2nd Circuit. This term is sometimes used because the citation requires abatement of the violations and contains correction dates for abatement.COM disclosed that an employee made the complaint. The Compliance Officer must show his credentials to an owner. Correction Order – A seldom-used term to refer to a citation. etc. The consultation will not directly result in a citation or civil penalty.The Compliance Officer’s official OSHA identification card. Court of Appeals . The circuit courts are the forum for contested citations on appeal from the Occupational Safety & Health Review Commission (OSHRC). Complaint Inspection .A free service provided by OSHA to employers below a certain size for the purposes of assessing work place hazards and to provide training and advice on how to eliminate such hazards. the employer must usually show that OSHA failed to substantially comply with the regulation AND that OSHA’s failure to comply prejudiced the employer.F. the employer must remember that it is unlawful employment practice to discriminate against an employee for making a complaint.A procedural defense available to the employer when the citation does not comply with statutory or administrative rule requirements. or agent in charge before conducting the inspection. of the citation.The OSHA employee who conducts the inspection.OSHA can create and adopt specific safety standards regulating work practices and processes such as fall protection.OSHAGUIDE.An unprogrammed inspection made in response to a complaint. Courts of Appeal are divided into 12 federal circuits – 1st Circuit. machine guarding. Credentials . Criminal Penalties . 29 CFR 1910.g.S.Penalties resulting in imprisonment or criminal monetary fines under the Occupational Safety & Health Act. Circuit court decisions that are appealed go to the U. The term “Circuit Court” is also used because the U.” Congressional Federal Register (CFR) . Consultation Service . To prevail. supervisor. etc. more formally called a “Compliance Safety & Health Officer” or “CSHO. Supreme Court. Defective Citation . Several States also impose separate criminal penalties under State statutes addressing occupational safety and health.One of the terms used to refer to the United States Courts of Appeal. or “contest”.R. Compliance Officer (CSHO) .) and are referred to by their federal CFR number (e. Contested Case . Page 54 .

Emphasis Program . Due Process . (2) the work rules were effectively communicated to the employees. OSHA will examine several factors to determine whether a willful violation was also egregious. the employer must usually show that OSHA failed to substantially comply with the regulation AND that OSHA’s failure to comply prejudiced the employer.S. the employer must prove: (1) it had work rules designed to prevent such conduct. No penalty is assessed because the violation is determined to be rather trivial.A person designated by the employees to be their representative. Similarly. Employer . it means that an OSHA standard must be specific enough so that a reasonable person would be put on notice of its requirements.The constitutional requirement that the government put citizens on notice of the specific requirements of a law before it imposes sanctions for violating that law. The net result is that the total penalty amount of the citation is significantly increased. Emphasis Inspection .C. 29 U.Generally. . This category includes most private and public employees. (3) the employer took steps to discover violations of the work rules. § 658 (a).COM Defective Inspection . Employee Representative .A procedural defense available to the employer when the inspection does not comply with statutory or administrative rule requirements. The employee representative has the right to participate in the opening conference.The broad category of persons subject to regulation under the OSH Act. Employee Misconduct Defense . De Minimus Violation . Egregious Penalty Structure .A programmed comprehensive inspection triggered by a local or national Emphasis Program.An affirmative defense available to the employer. a citation must be specific enough so that a reasonable person would know the manner in which the standards were allegedly violated. the closing conference and the inspection.OSHAGUIDE.A penalty structure developed by OSHA to address extreme cases of willful violations. To establish an employee misconduct defense. To prevail. If a willful violation is deemed to be egregious then each instance of the violation can be cited separately.A de minimus violation is one where a standard is technically violated but it has no direct or immediate relationship to safety or health. an internal directive from federal OSHA stating that particular emphasis is going to be paid to an industry or practice because it is considered particularly hazardous. Page 55 .The broad category of persons afforded protection under the OSH Act. In the OSHA context. Employee . and (4) the work rules were adequately enforced when they were violated.

The Compliance Officer determines the likely “severity” of harm if an accident were to occur and the “probability” of an accident occurring to arrive at the GBP. . If the employer qualifies for Page 56 . OSHA FIRM § IV-C-2-d. Federal Rules of Evidence do not apply. the OSHRC introduced the E-Z Trial procedure which is a simpler and less expensive method of resolving contested citations.A work accident resulting in an employee’s death. E-Z Trial procedures are simplified in a number of ways: Complaints and answers are not required. Hearings are less formal. IN some cases.In 1995. probability and severity assessments.The Compliance Officer makes a “Gravity Based Penalty” (GBP) assessment to determine the amount of the penalty within the maximum and minimum range for each violation classification.” 29 U. It can also be the person in charge at the time of the inspection. a very long-term construction site could be considered a fixed place of employment. To be eligible.Employers have a general duty under the OSH Act to protect their employees from recognized hazards and to provide them with a safe place of employment.000. ALJ usually issues decision from the bench. cases must not involve complex factual or legal issues and the proposed penalty must be less than $10.OSHA’s internal resource manual that instructs Compliance Officers on inspection procedures. Field Notes .An employer facility at one general location.The term sometimes used by OSHA to describe the Compliance Officer’s inspection report or that portion of the inspection report containing the Compliance Officer’s handwritten notes. The employer representative also has the right to be present at the opening conference. shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. Gravity Based Penalty (GBP) . . etc. Field Inspection Reference Manual (FIRM) .COM Employer Representative . Follow-up Inspection – Another term used for an abatement inspection which is an inspection following the citation to verify abatement of the violations listed in the citation. § 654 (a)(1). the closing conference and the inspection. and other related matters. Fixed Place of Employment . E-Z Trial . The employer representative can request a warrant or consent to a warrantless inspection. (See “Agent of the Employer” above). Fatality .A person designated by the employer to be its representative when dealing with OSHA. OSHA will cite the employer for violations of the general duty clause when hazards exist that are not covered by specific standards.OSHAGUIDE.S.C. OSHA uses the general duty clause as a “catch-all” provision. This is known as the “General Duty Clause” which provides: “Each employer . General Duty Clause .

Loss Control Consultant .A condition. violation.A conference between the employer and OSHA after the Notice of Contest is filed.Usually defined as an industry group.An affirmative defense available to the employer. Interim Order . resolve the issues and reach a settlement. OSHA puts high hazard industries near the top of the list for programmed inspections.C. that the employees were protected by alternative measures and that a variance application was futile or denied. Infeasibility/Impossibility Defense . Job Poster .The representative from the employer’s workers compensation carrier who assists the employer in developing and implementing safety programs and policies. § 658 (c). The employer must also prove that there were no alternative means of employee protection available.S. It informs the employees of their rights under the Occupational Safety & Health (OSH) Act.This is also referred to as the “OSHA Poster” or the “Safety Poster.COM penalty reductions they will be deducted from the GBP to arrive at a final penalty amount. Greater Hazard Defense . identified by SIC code.” It refers to the “Safety and Health Protection on the Job” poster which must be displayed in the workplace. The employer must prove that compliance creates a greater hazard than noncompliance. The goal is to discuss the citation.OSHAGUIDE. Hazard .This refers to OSHA’s practice of grouping multiple violations of different standards that affect the same hazard into a single.A citation that is defective because it is issued more than “six months following the occurrence of any violation. High Hazard Industry . Inspection .” 29 U. The employer must prove the compliance is virtually impossible due to practical. technological or economic considerations. Grouped Violation . Informal Conference .An official examination of the place of employment by the Compliance Officer to determine if the employer is in compliance with applicable occupational safety and health standards. which has a lost workday incidence rate higher than the national average for all employers.A temporary order requested by the employer that will waive compliance with a specific standard while the employer’s variance request is being processed. Late Citation . practice or act that could result in an injury to illness to the employee. more serious.An affirmative defense available to the employer. Page 57 .

Penalties for failure to correct (or “non-abatement”) can be as high as $7.also referred to as “circuit courts.000. but it is usually much less than that.The employer’s failure to correct the violations within the correction dates set forth in the citation.S. (See “Loss Control Consultant” above). § 659 (a).” Opening Conference .The employer has the right to contest the citation if it disagrees with any of the following: (1) the alleged violations. The OSHRC either adopts the ALJ’s opinion or issues a decision of its own.S.C.The OSH Act refers to the federal Occupational and Safety and Health Act of 1970.An “Other Than Serious Violation” is a violation that will not result in death or serious physical harm. 29 U.000 divided by the sum of employee hours worked in the reference years. § 666 (c). Non-abatement .” THE EMPLOYER MUST FILE A WRITTEN NOTICE OF CONTEST WITHIN FIFTEEN (15) WORKING DAYS OF THE EMPLOYER’S RECEIPT OF THE CITATION AND NOTIFICATION OF PENALTY. The statistic is intended to reflect the number of lost workday injuries experienced by 100 full-time workers. An “Other Than Serious Violation” is more serious than a de minimus violation but less serious than a “Serious Violation. or. Lost Workday Injury (LWDI) Rate . The Compliance Officer will explain the purpose of his visit and identify the persons to accompany him during the inspection. It is also referred to as “The Williams-Steiger Occupational Safety & Health Act of 1970. Other Than Serious Violation . § 651 et seq. (2) the abatement period. (3) the penalty amounts. Courts of Appeal .The free consulting services provided by many workers compensation carriers.S. Department of Labor that reviews the decisions of the Administrative Law Judge (ALJ) that presided over the contested case hearing. For an exact calculation the employer should contact its workers compensation carrier Loss Control Consultant. 29 U. 29 U.C.S. Page 58 . 29 U.000 per day for each day past the correction date. OSH Act . § 666 (k).” Public Law 91-596.C. The Notice of Contest is submitted to the OSHA Area Director. Notice of Contest . The employer’s written notification is formally called a “Notice of Contest.S. The number of LWDI’s can be obtained from the employer’s OSHA 300 log.The statistic used by the Compliance Officer to determine employer trends in injuries and illnesses.C.” The maximum penalty for an Other Than Serious violation is $7. The employer must give OSHA written notice that it disagrees with the citation.COM Loss Prevention Services . The formula for calculating the employer’s LWDI Rate is: the sum of lost workday injuries (LWDI’s) in the reference years x 200.S. Appeals of OSHRC decisions are heard by the U. Occupational Safety & Health Review Commission (OSHRC) – The OSHRC is a body independent from OSHA and the U.OSHAGUIDE.The preliminary conference between the employer and the Compliance Officer prior to the start of the inspection.

is a log of each recordable injury and illness. The OSHA 300 log technically refers to OSHA Form 300. An OSHA Area Office is located in most States. 29 U.A penalty generally refers to a civil monetary penalty assessed against an employer by OSHA for violation of the OSH Act. § 651 (b).oshaguide. (2) OSHA Form 300-A.com to obtain contact information for all OSHA Area Offices. The forms and instructions can be downloaded from OSHA’s website. However. OSHA has an “understanding” with many governmental units that are set forth in “Memorandum(s) of Page 59 .A defense available to certain employers if another governmental agency regulates the same conduct cited by OSHA.14 a (c).S. Penalty . § 659 (c).C. 29 U. The Compliance Office will review these forms during an inspection and verify that they have been posted properly. They must be filed before the close of the next working day following the date on which abatement was originally required. (3) OSHA Form 301. 29 CFR 1903. every working man and woman in the Nation safe and healthful working conditions . Employers are subject to civil and sometimes criminal penalties if they violate the OSH Act. Summary of Work-Related Injuries and Illnesses. Preemption .Petitions for Modification of Abatement (PMAs) are used if the employer does not contest the citation but needs more time to correct the violations.37 (c). You can go to the “OSHA Links” page at www. PMAs are filed with the OSHA Area Director. Criminal penalties can also be assessed in certain situations. . Likewise.The Director of an OSHA Area Office. Injury and Illness Report. increases can never be above the maximum penalty amount set forth by statute or administrative rule. Log of Work-Related Injuries and Illnesses. Petition for Modification of Abatement (PMA) . Penalty Reduction .S. 29 CFR 2200. .The general term encompassing penalty reductions and penalty increases.The federal agency responsible for enforcing the Occupational Safety & Health Act.C. (See “Criminal Penalties” above).A reduction in the penalty amount for meeting certain criteria set forth in the “Penalty Reductions” section of this manual. is the employer’s annual summary of occupational injuries and illnesses of its employees. is an incident report form that must be completed for every recordable injury or illness entered on OSHA Form 300. The other federal regulation “preempts” the OSHA standard. Penalty Adjustment . OSHA . ”. Reductions can never be below the minimum penalty amount set forth by statute or administrative rule. OSHA 300 Log – This replaces the OSHA 200 log.OSHAGUIDE.COM The purpose of the OSH Act “is to assure as far as possible. OSHA Area Director . the term “OSHA 300 Log” is also used collectively to refer to the following three forms required by OSHA: (1) OSHA Form 300.

An employer’s second or subsequent violation of a standard previously cited by OSHA inspection in the previous three years. which classifies employers by an industry code representing the type of activity performed. OSHA will multiply the current penalty according the formula set forth in the “Penalties for Repeat Violations” section of this manual.g. fractures.S. Standard Industrial Classification (SIC) . 29 U. (2) Construction. accident statistics. § 666 (k). The standards are divided into four broad categories: (1) General Industry.Specific safety standards regulating work practices and processes such as fall protection. Each industry is assigned an SIC code. § 666 (b). Serious Violation . (3) Maritime & Longshoring. etc.001).000. machine guarding.A comprehensive inspection scheduled on the basis of neutral administrative criteria such as location. (See “Non-abatement” above). 29 CFR 1910. The severity assessment is based on the most serious injury or illness which could “reasonably be expected” to result from the employee’s exposure. are found in the Code of Federal Regulations (CFR) and are referred to by their federal CFR number (e. (4) Agriculture.” 29 U. disabling burns. Safety Codes . 29 CFR Part 1910. and OSHA will sometimes refer to accident statistics for the employer’s SIC code to determine whether the employer is in a high hazard industry.An unprogrammed inspection triggered when another government employee observes a safety violation and reports it to OSHA.C.COM Understanding” that can be viewed on OSHA’s website. memoranda often address when preemption applies. 29 CFR Part 1926. OSHA FIRM § IV-C-2-e. Medium and Low. etc.. 29 CFR Part 1915. Page 60 . 29 CFR Part 1928. Examples of “serious physical harm” are amputations. These Probability Rating . Repeat Violation . The probability ratings are “Greater” and “Lesser” depending on whether the likelihood of injury or illness is high or low.A “Serious Violation” is a violation where there is a “substantial probability that death or serious physical harm could result. The maximum penalty for a “Serious Violation” is $7. Severity Assessment . Programmed Inspection . 1918. 1917.The federal classification system. etc.C. and. Unabated Violation .One of the factors considered by the Compliance Officer in assessing the penalty amount for a violation.One of the factors considered by the Compliance Officer in assessing the gravity-based penalty (GBP) amount for a violation.S. Referral Inspection . For a repeat.OSHAGUIDE. The severity assessment is ranked High.A violation that is not corrected by the correction date listed on the citation.

Willful Violation . Sections 651 to 678.S. if the employer foresees that it will be unable to comply. It can also refer to the employer’s withdrawal of a Notice of Contest.After completion of the opening conference. Variance (Application for) .000 to $70.COM United States Code (U.OSHA must prove the following elements by a preponderance of the evidence to establish a violation: (1) the cited standard applies. Page 61 .An inspection in response to an event that cannot be scheduled (i.” 29 U.C. (2) the employer failed to comply with the cited standard. (4) the employer knew.S. and within reasonable limits and in a reasonable manner. until a final determination is made on the variance application.) is the body of law created by the United States Congress. Withdrawal .C.S. complaint.The document obtained by OSHA if the employer denies entry to all or part of the premises for the purpose of an inspection.C.” The Compliance Officer is authorized to conduct an inspection “during regular working hours and at other reasonable times. A willful violation will be assessed a penalty of $5.OSHAGUIDE. Chapter 15. The warrant must set forth probable cause for the inspection.C.) . Other jurisdictions have more recently defined a willful violation as one committed with “intentional disregard” or “plain indifference” to the requirements of the OSH Act. or with reasonable diligence should have known. “programmed”) such as an accident. OSHA’s Office of Variance Determinations processes variance applications. the Compliance Officer will conduct a tour of the business premises. of the hazardous condition. The OSH Act is contained in U. and. or that it will be unable to comply in time.S. § 657 (a)(1).S.A “Willful Violation” does not require malicious intent or an obstinate refusal to comply. An “interim order” grants to employers temporary authority to use alternative means of employee protection. 29 U. Warrant .e. This is referred to as a “walk-through” or “walkaround. A willful violation exists if the employer knowingly decided not to comply with the safety standard. referral by another government employee or in follow-up to a previous inspection. Walk-Through . Unprogrammed Inspection . Title 29. While variance applications are pending employers can also request an interim order.Upon the issuance of a new rule.The term used when OSHA decides to abandon all or part of the citation.The United States Code (U.C. A “variance” means that the employer is excused from complying with the specific health standard.000. Violation . During the walk-through.. Criminal sanctions can be imposed if a willful violation causes the death of an employee. other than compliance with the safety standard. § 655 (b)(6). the Compliance Officer will be attempting to identify safety code violations. the employer can apply to OSHA for a variance. (3) employees were exposed or had access to the hazard.

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