OSHA

Inspections
and

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

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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

CONTACT AN ATTORNEY IN YOUR AREA IF YOU REQUIRE LEGAL ASSISTANCE. Accordingly. His OSHA manuals have been featured on amazon.M. J. MIM. It addresses the following jurisdictions regulated by federal OSHA including Puerto Rico and the Virgin Islands**: Alabama Arkansas** Connecticut** Colorado Delaware Wash. This concise manual discusses employer rights. penalties.COM OSHA Inspections and Defenses OSHA 2004 William M. strategies and defenses during federal OSHA inspections. 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.C..D. Brewster. 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. INTRODUCTION OSHA compliance is becoming more difficult and employers must devote more of their resources to deal with this issue. JD. This manual is updated every year to reflect changes in the law. Condor OSHA Guides THIS MANUAL DOES NOT REPLACE LEGAL ADVICE. It explains violations. Brewster. The federal OSHA manual applies to most of the United States.I. D. Copyright 2003 Page 1 . M. employers are demanding to know their rights and responsibilities.OSHAGUIDE.com and they are currently used as a resource across the United States and internationally. This problem is compounded by the fact that failure to comply can result in civil and sometimes criminal penalties. citations and contains a glossary of common OSHA terms. He currently practices law in Oregon and Washington.

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

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

”. 436 US 307. 1978). Inc. 56 L. 9th Circuit Guam Idaho Montana 10th Circuit Colorado Kansas Oklahoma 11th Circuit Alabama Florida Georgia Page 4 . and. “5th Cir.S. the reader will want to focus on the enlarged portions indicated in bold. (3) OSHRC decision. Inc. etc. Readers will benefit the most by knowing the number of their federal circuit of the U.C.”. For quick recognition. 7 OSHC 2048 (1979). 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.S. U.2d 1021 (5th Cir. Occupational Safety & Health Review Commission (OSHRC) Decision Keco Industries. (2) federal circuit court decision of the U.. D.S. Citations to the different courts are in the format shown below. Court of Appeals.OSHAGUIDE. Court of Appeals.2d 305 (1978). 98 S.Ed. 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.S. 1816.. Supreme Court Decision Marshall v. There are twelve federal Circuit Courts and many cases are cited in this manual as coming from the “1st Cir.Ct. 578 F. Marshall. U. v. Court of Appeals Decision Stephenson Enterprises. Barlow’s Inc.COM decision.

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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

it is important to know the two types of inspections performed by OSHA. In the criminal context. a complaint.. developed by OSHA.g. 56 L. or schedule. 98 S. or schedule. by industry. Programmed inspections are by nature comprehensive. Administrative searches and criminal searches are different in that.g.Ed. observation of an employee working without fall protection. the employer has the right to request a warrant to confirm that “cause” exists before OSHA can conduct an inspection. OSHA can develop a scheduled list of employers to be inspected as long as neutral standards are used – e. etc.g. 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. etc. in the OSHA context.. etc. Accordingly. Barlow’s Inc. Programmed inspections are based on an inspection list. Similarly.. the police cannot search private homes merely by developing a list of “suspects” whether or not neutral criteria are used to develop the list. 436 US 307. 1816. Probable cause for OSHA inspections An OSHA inspection is considered an “administrative search” rather than a criminal search.Ct. probable cause would be specific evidence of an OSHA violation – e. probable cause would be specific evidence of a criminal violation – e.. They are referred to as “programmed” and “unprogrammed” inspections based on the type of “probable cause” involved. In contrast. Marshall v.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.OSHAGUIDE. Thus. supra. Barlow's. Thus. an accident. or “wall-to-wall. This means that OSHA must have probable cause to perform the inspection. probable cause can also be provided by reasonable legislative or administrative standards. “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.2d 305 (1978). “Probable cause” for programmed inspections is provided by the inspection list. by geographic location.” Page 8 . for administrative searches. broken taillight (traffic infraction). citizen complaint (drug offense). The scope of the inspection To address the “scope” issue. Administrative searches and criminal searches are similar in the sense that specific evidence can provide probable cause for a search.

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

Consent to Warrantless Inspections The right to a warrant must be asserted at the beginning of the inspection or it can be deemed waived. Valid consent operates as a waiver of the Fourth Amendment right against unreasonable search and seizure. etc. Maintaining the Compliance Officer’s good will is something employers should always consider. To Avoid Waiving Constitutional Protections: The employer cannot invoke its constitutional protections without requesting a warrant. or general contractor in charge of multi-employer work site. In more common vernacular.OSHAGUIDE.) 4. To Keep an Unprogrammed Inspection Limited in Scope: If the inspection is unprogrammed (i.) the employer may want to request a warrant to avoid having OSHA transform the inspection into a broad “wall-to-wall” inspection. However. Consent for Page 10 . (See next Section for further discussion. 2. Perhaps one of the many warrant exceptions also apply. 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.” 3. Valid Consent or Warrant Exceptions Apply: A property owner. this is only a factor in jurisdictions that recognize such limitations. 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. However. Factors Against Seeking a Warrant 1. “If you don’t use it – you lose it.e. can give valid consent to a warrantless inspection with respect to any on-site employers.. accident. 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. complaint. 2. Valid consent to a warrantless inspection operates as a waiver of the Fourth Amendment right against unreasonable search and seizure.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. 3. The right to a warrant must be asserted at the beginning of the inspection or it can be deemed waived. 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.

18 L. Thus. can consent to a warrantless inspection with respect to any on-site employers.2d 357 (4th Cir.L.S. Municipal Court. Other federal cases have also held that the Compliance Officer's mere announcement that he is there for an inspection. 786 F2d 714 (6th Cir. 218 (1973). Inc. In the OSHA context. J. den. Marshall.Ed. and the employer's acquiescence to the inspection.2d 84 (5th Cir. v. Kramer Grocery Co. Consent is not valid if it is the result of threats. Consent by Others A property owner. Secretary of Labor. 387 U. 1969). The courts will look at the "totality of the circumstances" to determine whether consent was freely and voluntarily given. Stockwell Mfg. 91 S.2d 1021 (5th Cir.. 541.. Those situations generally cover instances when OSHA needs to preserve an accident scene or temporarily remedy a patently life-threatening hazard. Camara v.S. Thriftmart. 188. Inc.Ct.S. v. Miranda type warning not required. 1977). 523.2d 987 (8th Cir. Dorey Electric Co. 418 F. 387 U. Seattle. Inc.2d 943 (1967). 1975).2d 185 (1970). 412 U.2d 1021 (5th Cir. Usery. Bustamonte. There are also some isolated situations where OSHA can initially enter the premises without a warrant to accomplish a specific purpose. 1727. Lake Butler Apparel Co. v. 519 F. this rule has been applied where delay to get a warrant would Page 11 . 87 S. coercion or misrepresentation.OSHAGUIDE. 536 F. Consent to an administrative inspection need not be express and the failure to object to a known search constitutes consent.2d 1006 (9th Cir. manifests consent. 553 F.Ct. 578 F. 18 L. or general contractor in charge of multi-employer work site. United States v. v. 578 F.COM administrative searches is less stringent than that required for criminal searches e. United States v. An Emergency An administrative search without consent and without a warrant is permissible in the event of an emergency. v..g. Co.Ed.Ct. 400 U.2d 1309 (1oth Cir. 926.2d 930 (1967). 1978). See v. Stephenson Enterprises. Marshall. Stephenson Enterprises. v. 429 F. 27 L.Ed. 1986). OSHRC. which is generally defined as a threat to human life. Foti Construction Co. 1978). 87 S.” One federal Circuit Court held that valid consent was given by a foreman. Schneckloth v. 1976). 1970). Warrant Exceptions There are several situations where a full inspection can be performed without a warrant.S. Donovan. 1737. 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. The authority to give valid consent can also extend down the management “food chain. Consent can be given by any competent management official. a plant manager can give valid consent. cert.

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

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

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

The Walk-Through and Collecting Evidence After completion of the opening conference. Any evidence that employers collect may be used later by OSHA to prove a violation. the employer should limit the discussion to the specifics of the accident or the complaint. but cautious. § 657 (a)(1). Many employers choose take their own photographs and videotape during the inspection. § 657 (a)(2). Therefore. however. As noted. some employers feel that it is worth the risk to produce their own record of the inspection. the employer should be cooperative. and within reasonable limits and in a reasonable manner. This is referred to as a “walk-through” or “walkaround. The above strategy is to prevent non-supervisory personnel from holding themselves out to OSHA as an agent of the employer. that this is a two-edged sword.C.7 (b). The above strategy will not prevent an inspection. the Compliance Officer will be attempting to identify safety code violations. 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. 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 employer should schedule the employee interviews and designate a neutral area Page 15 .” 29 U. it is important for the employer to limit the scope of the inspection as much as practicable. the Compliance Officer will conduct a tour of the business premises. The purpose is to produce mitigating evidence to refute any damaging evidence collected by OSHA. the employer should attempt to keep the inspection limited to the area of the accident or the area identified in the complaint. 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. Even so. However. The Compliance Officer can interview employees in private outside the presence of an employer representative.” The Compliance Officer is authorized to conduct an inspection “during regular working hours and at other reasonable times. During the walkaround. 29 CFR 1903. Accordingly. If the Compliance Officer is conducting an unprogrammed inspection.S.C.” Therefore.OSHAGUIDE. If this is an unprogrammed inspection. 29 U. even during an unprogrammed inspection the Compliance Officer can cite the employer for any other violations in “plain view. The Compliance Officer has the right to take environmental samples and photographs. Employers need to be aware.S. about the information it volunteers. This right probably also includes videotape as long as trade secrets are adequately protected. The employer can be cited for any information that it volunteers to the Compliance Officer.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 program is more fully discussed in an OSHA memorandum dated September 30. At the closing conference. 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. That discrimination against employees is prohibited for exercising rights under the OSH Act. § 657 (a)(2). despite OSHA’s enforcement and outreach efforts. 29 CFR 1903. The employer’s duty to post the citation. ENHANCED ENFORCEMENT PROGRAM (EEP) OSHA’s Enhanced Enforcement Program (EEP) addresses employers who. ignore their OSH Act obligations. 2. In essence. penalties or correction dates. 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. 3. Closing Conference After the inspection is completed the Compliance Officer will hold a closing conference with the employer and employee representative.” 29 U. Page 16 . If OSHA finds that a willful violation caused the death of an employee.remember the “plain view” problem.COM such as a lunchroom. 2003. Whether any violations were found and if a citation will be issued.S. is defined as any inspection that meets one or more of the following criteria: 1. thereby placing their employees at risk. The right to request an informal conference with OSHA. This prevents the Compliance Officer from rambling around the facility without a management person present .7 (e).C. The requirements for abating any violations or requesting extensions of the correction date. If the Compliance Officer objects. the employer will also be considered for criminal referral under section 17(e) of the OSH Act. PEC Criteria A Priority Enforcement Case. the Compliance Officer will inform the parties of the following: 1. 6.OSHAGUIDE. the EEP is an OSHA program which sets forth the procedures that OSHA Regional Administrators should follow in cases meeting the PEC criteria. 5. that can be found on OSHA’s web site. 4. Rather. The employer’s right to contest the citation. A fatality inspection in which OSHA finds a high gravity serious (or willful or repeated) violation related to the death. or PEC. The EEP is not actually federal law.

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

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

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

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

Accordingly. 29 CFR § 1903. or certification in any application. § 666 (g). Likewise.   At The Informal Conference  At the informal conference. there is no formal mediation under the OSH Act or the procedural rules of the OSHRC. § 659 (a). 29 CFR § 2200. exercise extreme caution when completing any documents concerning abatement certification.S. sometimes an employer obtains information that a disgruntled employee filed the complaint. They must be filed before the close of the next working day following the date on which abatement was originally required. 29 U. 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. Labor Disputes & Retaliation If the complainant requested confidentiality. record. or both. if a specific program is involved (e. OSHA will not release the complainant’s identity. Criminal penalties of $10. OSHA is generally more interested in mitigating factual information than legal defenses. 29 U.C. OSHA will perform an inspection in response to a complaint if they have reason to believe that it is valid. § 659 (c).C.17 (a). The term “working days” excludes Saturdays. can be imposed for knowingly making any false statement. However. 29 U.S. the parties can sometimes accomplish much the same purpose by requesting a pre-hearing conference with the Administrative Law Judge. This is true Page 21 .g.21 (c). It is this type of information that will most likely result in violations being withdrawn or penalties being reduced. Sundays and federal holidays. 29 CFR § 1903. The filing is timely if it is postmarked within the 15-day period.S.  Disgruntled Employees. representation. the complaint may come during the midst of a labor dispute.OSHAGUIDE. plan or other document required by the OSH Act.000 or six months imprisonment. This is because a general violation is more subject to providing the foundation for a repeat violation. 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. 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. The Notice of Contest is submitted to the OSHA Area Director. It is also a good strategy to request that broad general violations be reclassified as specific code violations. 29 CFR 1903.14 a (c).C.37 (c). PMAs are filed with the OSHA Area Director. Petitions for Modification of Abatement (PMAs) are used if the employer does not contest the citation but needs more time to correct the violations.51 (b). However. For example. 29 CFR 2200.

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

C. OSHA now requires that the employer submit written Abatement Certification to the OSHA Area Director as proof of abatement. They must be filed before the close of the next working day following the date on which abatement was originally required. or certification in any application. 29 CFR 2200.14 a (c). record.S. The interim steps being taken to protect the employees during the abatement period. lack of material or equipment. representation. The reasons why the employer needs additional time – e.000 or six months imprisonment.OSHAGUIDE. the employer should exercise extreme care when completing abatement certification documents. This coincides with the employers’ 15-day period in which to file an appeal of the citation. abatement is placed on hold while the employer contests the citation. If the citation is not contested. 29 U. Employers may be assessed penalties of up to $7. 5. 4. unavailability of technical experts.C.S. If there is no objection to the PMA by employees or authorized employee Page 23 . The correction dates for each violation can be found on the face of the citation.C. 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.37 (c). A safer practice is to file the PMA before the abatement period expires. then the employer must abate the violations. 2. Employers generally have a 15-day “grace” period before abatement must occur.S. 29 U.COM Abatement “Abatement” is the OSHA term for correcting the violation. 29 U.S. or both. PMAs must contain the following information: 1.g. Criminal penalties of $10. Certification that the PMA was posted 10 days in a conspicuous place sufficient to give all affected employees notice of the PMA. Thus. can be imposed for knowingly making any false statement. § 666 (g).000 PER DAY for each day the violation is not corrected past the correction date.” 29 U. § 659 (c). plan or other document required by the OSH Act. construction or alteration cannot be completed in time. 29 CFR 1903..C. The specific amount of additional time needed. § 666 (d). § 659 (b). If the citation is contested. PMAs are filed with the OSHA Area Director. the employer’s notice of contest must be made “in good faith and not solely for delay or avoidance of penalties. The steps and dates of all employer actions to achieve compliance within the abatement period. 3. However.

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

Inc. v. Page 25 . 29 U. OSHA FIRM § III-C-2-f-(4)-(c). the employer can best avoid repeat violations by showing that the prior citation involved different conditions or hazards. Accordingly. 7 OHSC 1061 (1979). § 666 (k). OSHRC.C. but it is usually much less than that. a “Serious Violation” is a violation where there is a “substantial probability that death or serious physical harm could result. 29 U. 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. Secretary of Labor v. Examples of “serious physical harm” are amputations. a repeat violation can be established by showing that the same standard was violated. 154 F.S.OSHAGUIDE. Same or Substantially Similar Violation: Of course. 18 OSHC 2082 (2000).000.S.” Modern Continental Construction Co. § 666 (a). § 666 (b).COM Other Than Serious An “Other Than Serious Violation” is a violation that will not result in death or serious physical harm.C.C. there was a final order against the “same employer” for “a substantially similar violation.3d 43 (1st Cir.” Potlach Corp. Caterpillar.. different standards can also result in a repeat violation if the hazard involved was substantially similar. Accordingly. Thus. OSHA must also show that the previous citation became a final order. Otis Elevator Inc. 305 F.000.3d 400 (7th Cir. However. be aware that some courts have interpreted settlement agreements pertaining to prior violations as “final orders. A “Repeat Violation” occurs if. Herman. disabling burns.000.C. The maximum penalty for a “Serious Violation” is $7.” The maximum penalty for an Other Than Serious violation is $7. OSHA must show that the same employer was cited once before for the same or substantially similar violation. at the time of the alleged repeated violation. § 666 (k). 29 U. Serious As noted above. fractures. An “Other Than Serious Violation” is more serious than a de minimus violation but less serious than a “Serious Violation. § 666 (c). This also applies to contractors and other employers with non-fixed worksites.C.S.” 29 U. 1998) (mechanical machine guarding and electronic eye both involved same pinchpoint hazard). However. 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. 2002). OSHA FIRM § III-C-2-f-(3)-(a). 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. Repeat The maximum penalty for a repeat violation is $70. etc.S. 29 U. whichever is later. v..S.

cert. 1997). Violation of a broad standard is more apt to provide the basis for a subsequent repeat. 809 F.3d 564 (8th Cir. the Eleventh Circuit (i. Georgia Electric Co. It is a repeat violation if the condition was corrected following the initial inspection but subsequently developed again. 1975). Inc. 1981).. Fluor Daniel v. This can be done at the informal conference level. 29 U.000 per day can be imposed if an employer fails to correct a violation. St. Failure to Abate A “Failure to Abate” violation can be found for any violations not fully corrected by the dates ordered in the citation. which has a maximum penalty of $70. v.S. 522 F. § 666 (d). Inc. OSHA FIRM § III-C-2-f-(6).3d 437 (7th Cir. 19 OSHC 1883 (2002). Other jurisdictions have defined a willful violation as one committed with “intentional disregard” or “plain indifference” to the requirements of the OSH Act. 1979). SC Development Corp. 268 F.C. 1072 (1976). However. 2002). However.2d 777 (4th Cir. National Engineering & Contracting Co. 647 F. Willful The most serious violation is a willful violation. OSHRC. Joe Minerals Corp. Failure to Abate versus Repeat Violation: The issue is whether or not the violative condition was brought into compliance following the initial inspection. 2000). 295 F.. v. denied 120 S. Cir. If a specific standard is more applicable.S. OSHRC.C. Failure to abate exists if the violation was never corrected. A “Willful Violation” does not require malicious intent or an obstinate refusal to comply. denied 423 U. v. v. 578 (1999). 181 F.) cert.Ct. 298 F. 1987).S. 2002). Rebutting Willfulness: Employers can rebut a charge of willfulness by showing that they made good faith efforts to comply with requirements of the standard. Construction. v.3d 378 (6th Cir.COM The employer may also avoid future repeat violations by having broad general violations reclassified as specific code violations. v. Florida and Georgia) Page 26 .000.e. § 666 (a). Penalties of $7.2d 311 (9th Cir. 200 F. Brock v. OSHRC. OSHRC. Inc.000 and a minimum penalty of $5. Marshall. A willful violation exists if the employer knowingly decided not to comply with the safety standard... Secretary of Labor. v. Intercounty Construction Co.2d 161 (1st Cir.3d 1123 (D. 1979). See also Alden Leeds. Inc. Secretary of Labor v.. National Steel & Shipbuilding Co. Kaspar Wire Works. Dakota Underground. 607 F. OSHRC. Morello Bros. 2001). the employer should request reclassification if it concedes that a violation occurred.2d 309 (5th Cir. an employer’s mere knowledge of a standard and subsequent violation of that standard is insufficient to prove a willful violation. the federal OSHA states of Alabama. 595 F. 29 U. 122 F.. Secretary of Labor.. v. OSHRC.3d 256 (3d Cir.2d 840 (8th Cir. Herman.OSHAGUIDE.3d 1232 (11th Cir. v. Caterpillar Inc.C.

29 CFR § 1910. § 654 (a)(1). The legislative intent was to protect employees in hazardous situations for which standards had not yet been adopted. This applies to observable conditions that a reasonable person would deem hazardous. the general duty clause is limited to “recognized hazards. OSHA will cite the employer for violations of the general duty clause when hazards exist that are not covered by specific standards. Some regulations indicate that employers should not be cited for general duty clause violations if hazards are addressed by more specific safety standards.2d 378 (6th Cir.. Marquette Mfg. 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. Reasonable efforts at compliance have been held sufficient even though they are incomplete or not entirely effective.OSHAGUIDE. A recent case has also If a willful violation causes the death of an employee. 815 F.C.S. This is known as the “General Duty Clause” which provides: “Each employer . 1998). United Automobile Workers v. 122 F. OSHRC..3d 1232 (11th Cir. However.C. 1997).” 29 U.S. . Older court decisions have held that a more specific safety standard can preempt the general duty clause. Some critics have argued that the “General Duty Clause” imposes strict liability on employers. 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.2d 902 (2d Cir.” 29 U. 568 F. v. A second conviction is punishable by a fine of up to $20. 19 OSHC 1638 (2001). United States v. the employer may be liable for a fine of up to $10. Fluor Daniel v. OSHRC. 1978). OSHA uses the general duty clause as a “catch-all” provision. Usery v. MJP Construction Co. General Dynamics Land Systems Division. despite compliance with a specific standard. or both.000. § 666 (e).3d 437 (7th Cir.3d 484 (7th Cir. Secretary of Labor. § 654 (a)(1). v..000. See also Caterpillar Inc. Ladish Malting Co. 2002). imprisonment up to one year. Some cases have even held that the employer’s good faith interpretation of a safety standard.C.C. Co. The more recent trend is for courts to hold that a general duty clause violation may exist. OSHRC. 29 U. 1987). if the specific standard was inadequate to protect the employees. 295 F. 1977). or both. . will defeat a showing of willfulness. although incorrect. Empire-Detroit Steel v..COM appears to have rejected a good faith defense for willful violations.5 (f). 579 F.2d 1570 (D. It also applies to Page 27 . Cir. six months in prison.S. 135 F.

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

C. The size of the business.S. as the exposing employer and is responsible for correcting the hazard. For example. § 666 (b) 29 U.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. a controlling employer would need to perform more frequent inspections if the subcontractor had a poor safety history.S. by exercising control on the worksite. and The employer’s history of previous violations.C. The correcting employer can be cited if it fails to exercise reasonable care in preventing.OSHAGUIDE.000 $ 7. including the power to correct safety and health hazards.S.000 $70. a correcting employer might be given responsibility for installing or maintaining safety equipment.S. in the absence of a specific contract provision.000 per day OSH Act 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. and (3) take reasonable alternative protective measures. § 666 (a) 29 U. The gravity of the violation.S. 3.000 min. Correcting Employer: A “correcting employer” is one that is engaged in a common undertaking.C. A controlling employer can be cited if it fails to exercise reasonable care in preventing and detecting violations on the site. Page 29 .C. 2. Controlling Employer: A “controlling employer” is one that has general supervisory authority over the worksite. such as guardrails. The good faith of the employer. § 666 (a) 29 U. § 666 (c) 29 U. § 666 (j) that penalties shall be assessed on the basis of four factors: 1. For example. or on the same worksite. 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.000 $70. The penalty limits for the different classifications are: Classification Other Than Serious Serious Repeat Willful Unabated Maximum $ 7.C.C. 4.000 ($5. discovering and correcting the hazard. In imminent danger situations the exposing employer is expected to remove its employees from the job. § 666 (d) Penalty Factors The OSH Act provides in 29 U. Control can be established by contract or.) $ 7.

. Greater Lesser The likelihood of injury or illness is relatively high. chronic.g. irreversible injuries. The likelihood of injury or illness is relatively low. 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. 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. it is very important during the inspection for the employer to point out those factors which reduce the probability of an accident occurring . Page 30 . If the employer qualifies for penalty reductions they will be deducted from the GBP to arrive at a final penalty amount. other pertinent working conditions.OSHAGUIDE. Accordingly. Low Probability: The probability of an injury or illness occurring is categorized either as “greater” or “lesser. OSHA FIRM § IV-C2-d. limited exposure during the day. 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-C-2-f-1. etc.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. permanently disabling injuries. frequency and duration of exposure. whether the employer has a medical surveillance program. the use of personal protective equipment (PPE).e. limited access to the hazard. few employees exposed. proximity of employees to the hazardous conditions. OSHA FIRM § IV-C-2-e. Medium and Low: High Medium Death. The severity assessment is ranked High. Injuries and illnesses resulting in hospitalization or a variable but limited period of disability. Injuries and illnesses not requiring hospitalization and requiring only minor supportive treatment.

High Gravity Moderate Gravity Low Gravity GBP of $5. The Table below illustrates: GRAVITY-BASED PENALTY (GBP) TABLE – unadjusted GBP OTHER THAN SERIOUS Probability No Severity Rating Lesser $0 Greater $1. OSHA FIRM § IV-C-2-i-(5)-(a).OSHAGUIDE. reductions) to the unadjusted gravity-based penalty (GBP).000 -$7.500 $5. after considering severity and probability factors.500 $3. § 666 (j). the Compliance Officer then arrives at the final GBP. OSHA FIRM § IV-C-2-i-(5)-(b).000 -$7.000 $2.000 Probability Lesser Greater OSHA defines the “gravity” of a violation by the GBP.500 Penalty Reductions The OSH Act states that other penalty factors to consider are the size of the business.000 to $3.. the good faith of the employer and the employer’s history of previous violations.000 SERIOUS Severity Rating Low Medium High $1.C.000 or greater GBP of $2. 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.500 GBP of $1. These other factors can result in adjustments (i.e. The employer can receive a 25% reduction if it has implemented “an Page 31 . will arrive at an unadjusted gravity-based penalty (GBP). Size of the Employer OSHA’s Field Inspection Reference Manual (FIRM) allows penalty reductions based on the size of the employer.500 $2.500 $2. After deducting adjustments. 29 U.S.COM Gravity-Based Penalty (GBP) The Compliance Officer.

if the GBP for a “Serious” violation found during the current inspection is $3. 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. See GBP Table at Page 30.000 ($3.COM efficient safety and health program” or the safety program “has deficiencies that are only incidental. History of Previous Violations A 10% reduction is allowed for employers who have not been cited by OSHA for any serious. Penalties for Repeat of an “Other Than Serious” Violation 1st Repeat 2nd Repeat 3rd Repeat $200 $500 $1.500 (greater probability – medium severity). For example.500 GBP x 4). A 15% reduction is allowed if the employer has a written safety program that is overall effective but has more than just incidental deficiencies. 5 2nd Repeat GBP x 4 If more deterrence GBPx 10 needed $70. OSHA FIRM § IV-C-2-i-(5)-(c). However.OSHAGUIDE. 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. 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. Repeat violations are only eligible for a penalty adjustment based on size of the employer.000 max.000 max.000 Page 32 .” OSHA FIRM § IV-C-2-l-(1). the penalty for a smaller employer violating the same standard for the third time (2nd repeat) would be $14.” 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.

COM Penalties for Willful Violations OSHA calculates the penalty of a willful violation based upon the “gravity” of the underlying “Serious” violation. 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.OSHAGUIDE.000 $49. Each item on the citation has a corresponding penalty and correction date. OSHA FIRM § III-C-5-a.000 $36. For willful “Other Than Serious” violations. OSHA FIRM § IV-C-2-h. OSHA FIRM § IV-C-2-m-(1). High Gravity Moderate Gravity Low Gravity GBP of $5.000 $28.000 Low $40.500 GBP of $1.000 $32.000 $56. A citation “item” is listed on the face of the citation for each violation. Id.000 minimum penalty mandated by the OSH Act. However.500 $33. In practice. OSHA uses a $25.500 $44. 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 $70.000 to $3.000 minimum penalty. 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 or greater GBP of $2.000 $38.000 $42. for willful violations. size adjustments are at one-half of the normal amount. History adjustments are at the normal rate.000 Gravity Combining & Grouping Violations Combined or grouped violations are normally considered as one violation and are assessed one gravity-based penalty (GBP). Good faith adjustments are not allowed at all.000 Moderate $55.000 $49.500 However. OSHA uses the $5. See GBP Table at Page 29. Thus. each instance of the violation is still separately set out within that item of the citation. For Page 33 .000 $25.000 $63.

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

000. The violations resulted in worker fatalities. Page 35 . 4. However. then each instance of the violation will result in a separate citation item. Multiple instances of violating the same standard. would normally be combined to form a single citation item with one penalty of $70.5 million dollars.COM For example. which provides that the violations under consideration must be willful AND at least one of the following other categories must also apply: 1. The employer’s conduct taken as a whole amounts to clear bad faith in the performance of his or her duties under the Act. Ho. a work-site catastrophe. 3. 2003).000 ($70. 5. then the total penalty arising from just that one standard would be $770. _____ OSHC _______ (Sept. 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.000 x 11). 6. The employer has an extensive history of prior violations of the Act.” The factors that OSHA examines in determining whether egregious penalties should be applied are found in OSHA Instruction CPL 2. 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. If willful penalties can be called OSHA’s enforcement “hammer” then the egregious penalty structure is OSHA’s “sledge hammer. 29. a willful violation of a particular standard might result in a penalty of $70. OSHA deemed the employer’s conduct egregious and assessed “per-instance” penalties on a “per-employee” basis which resulted in a citation totaling 1.OSHAGUIDE.1101(h)(1)(i) which pertained to the 11 alleged respirator violations and 29 CFR 1926.80.1 The OSHRC held that “per-instance” penalties on a “per-employee” basis 1 The cited standards were former 29 CFR 1926. The egregious penalty structure has come under increased scrutiny because of a relatively recent court decision by the Occupational Safety & Health Review Commission (OSHRC). Eric K.1101(k)(9)(i) and (k)(9)(viii) which pertained to the 11 alleged failure to train violations. The employer has intentionally disregarded its safety and health responsibilities. if the employer’s conduct is determined to be egregious. In the Ho decision. or a large number of injuries or illnesses.000. The violations resulted in persistently high rates of worker injuries or illnesses. If there were eleven instances. 2. and (2) failure to provide employee training under the asbestos standard to those same eleven employees.

” 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 felt that this was a phrase of “inclusiveness” referring to all employees within the protected class.” On the other hand.” However. In determining whether the underlying standards were addressed to employees as a class or individually.” Hartford Roofing was distinguished because it did not support penalties on a per-employee basis. OSHA contended that separate violations occurred “per employee.. we cannot allow harsh facts to result in bad law – a result which would clearly follow should we accept the Secretary’s proposed penalties. In fact. “where a single practice method or condition affects multiple employees. not individually. The plain language of the respirator and employee training standards addressed employees as a group. 17 OSHC 1361 (1995).” The other employee training standard did use the phrase “each such employee. However. Hartford Roofing held just the opposite and stated. there can be only one violation of the standard. 15 OSHC 2153 (1993) and Hartford Roofing. 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.” 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. On the one hand.” 2. OSHA misinterpreted two of the lead cases discussing “per-instance” penalties.2 OSHA relied on both cases as supporting penalties on a per-employee basis. the standards by their plain terms do not provide employers with fair notice that they may be penalized on a per-employee basis. Caterpillar had nothing to do at all with tying “per-instance” penalties to the alleged egregious conduct of the employer. OSHA was unable to provide a consistent interpretation as to what constituted an individual instance of the violation. 3.. The OSHRC ruled against “per-employee” penalties for the following reasons: 1. Inc. Thus. Caterpillar and Hartford Roofing. Inc. The OSHRC distinguished Caterpillar because it was one of the early “per-instance” cases assessing penalties for individual record keeping infractions.COM were not appropriate in this particular case.OSHAGUIDE. There was no dispute that the employer was what one could only charitably call a “bad actor. 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 respirator standard merely stated that the employer shall provide respirators and ensure their use “during all Class 1 asbestos jobs. Page 36 . The employer’s conduct was not egregious and penalties were assessed “perinstance” – not “per-employee.

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

000. courts have been rejecting such “preemption” arguments. The filing is timely if it is postmarked within the 15-day period. record. OSHA Compliance Officers) can be fined up to $5. Dec. Chicago Magnet Wire Corp. The term “working days” excludes Saturdays. 517. or both. cert.g. In States with federally approved State Plans prosecutors enforce the criminal sanctions of those plans. The citation document is formally called a “Citation and Notification of Penalty. More common is criminal prosecution in States with State Plans. Criminal prosecution under the federal OSH Act is relatively rare but may increase as a result of OSHA’s Enhanced Enforcement Program (EEP).17 (a). 534 NE2d 962 (1989). or.. Page 38 . Employers may also be subject to criminal liability under State statutes in addition to the criminal sanctions imposed under the OSH Act. or certification in any application. § 659 (a) .2d 356. A civil monetary penalty for each of the violations will also likely be assessed.S. 29 CFR § 1903. See Illinois v.S. 29 U. 1987). (2) the abatement period.C.OSHAGUIDE. Some employers have argued that the criminal provisions of the OSH Act preempt State criminal statutes. 29 CFR § 1903. The Notice of Contest is submitted to the OSHA Area Director. In States which opted out of federal enforcement but do not have approved State Plans. denied 493 US 809 (1989.17 (a).” The employer has the right to contest the citation if it disagrees with any of the following: (1) the alleged violations. a citation will be issued setting dates of correction for each of the violations. liability is based on general criminal statutes. Sundays and federal holidays. reversed on other grounds 510 NE2d 1173 (Ill. 126 Ill. described more fully in the prior section of the manual discussing EEPs. (3) the penalty amounts. § 666 (g).COM representation. Forcibly Resisting or Assaulting a Compliance Officer Any person who forcibly resists or assaults Department of Labor personnel (e. 29 U. plan or other document required by the OSH Act. CONTESTING A CITATION Filing the Notice of Contest If the Compliance Officer observes safety or health violations. 128 Ill.21 (c). App.C. The employer’s written notification is formally called a “Notice of Contest. However. 29 CFR § 1903. The criminal sanctions can double if a dangerous weapon is used. The employer must give OSHA written notice that it disagrees with the citation. impris0ned up to three years.” 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.

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

A few weeks following the answer. employee misconduct. The parties are entitled to 30 days advance notice of any hearing. 29 CFR § 2200.34 (a). 29 CFR § 2200. The employer has the burden of proving any Page 40 . Hearing Procedure The OSHRC assigns the case to an Administrative Law Judge (ALJ) who schedule and preside at the hearing. Within 20 days of receiving the Notice of Contest. There is no formal mediation under the OSH Act or the procedural rules of the OSHRC. 29 CFR § 2200.34 (b)(2). 29 CFR § 2200.OSHAGUIDE. the parties can sometimes accomplish much the same purpose by requesting a pre-hearing conference with the ALJ. time and location. 29 CFR § 2200. It provides the initial forum for hearing contested cases under the OSH Act. The complaint sets forth the alleged violations and the rationale behind the abatement period and penalty amounts.2. 29 CFR § 2200. The OSHRC is an independent agency not affiliated with OSHA or the Department of Labor.33. The OSHRC encourages settlement at this level. litigation of contested citations is becoming increasingly complex and hearings are conducted pursuant to the procedural rules set forth by the OSHRC. 29 CFR § 2200.34 (b)(1). the Federal Rules of Evidence apply. 29 U.34 (b)(4). However. the ALJ will mail the parties a Notice of Hearing and Instructions. etc. § 661 (f). The employer’s answer is a plain statement denying all allegations in the complaint that it wishes to contest. Legal representation is especially advisable if the employer has a problem with repeat violations. OSHA has the burden of proving each of the elements of the violations listed in the citation.COM The OSHA Area Director within 15 days of receiving the Notice of Contest. greater hazard. In the absence of OSHRC rules. It also gives the parties instructions for the conduct of the hearing including the exchange of evidence. or the citation involves a serious injury or willful violation. Attorneys represent OSHA. etc. The employer’s answer must also include any affirmative defenses that it wishes to raise. 29 CFR § 2200.60. At hearing.51 (b). Rulings concerning the admission of evidence and on submitted motions can seriously affect the outcome of a particular case. Accordingly. the employer might wish to have an attorney present to ensure a level playing field. 29 CFR § 2200. Employers can represent themselves or be represented by attorneys.34 (a)(2).g. Employers and employees both have the right to participate in the hearing. This document advises the parties of the hearing date. The employer must file a written answer within 20 days of being served with OSHA’s complaint. will refer the case to the Occupational Safety Health & Review Commission (OSHRC)..e. 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.C. However. OSHA must file a complaint with the OSHRC. 29 CFR § 2200.34 (b)(3).S.

C. After considering the evidence. The OSHRC then has 30 days to adopt the ALJ’s decision or recommend review by the full Commission.S.91. Circuit Court of Appeals. 4.S.69. Such cases generally include one or more of the following characteristics: 1. E-Z Trial In 1995. 29 CFR § 2200. 29 U. 3.C. modified or eliminated.000. 3.200 (a). No willful or repeat violations. § 660 (a). The grounds for review are as follows: 1. 29 CFR § 2200. 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. The parties can file written briefs with the ALJ and request transcripts of the hearing to facilitate preparation of the briefs. policy or abuse of discretion is involved. § 661 (j). or 4. 29 CFR § 2200. 5. To be eligible. 2. A prejudicial error was committed. Its purpose is to provide a simpler and less expensive method of resolving less complex contested citations. Relatively few citation items. 29 CFR § 2200. 29 U. it has 60 days to appeal the order to the appropriate U. A substantial question of law.66. 29 CFR § 2200. 2.OSHAGUIDE.S.90. 29 CFR § 2200. If the employer disagrees with the final order.COM affirmative defenses. Each of the parties can call witnesses. The party with the burden of proof must establish the fact by a “preponderance of evidence” (more probable than not). cases must not involve complex factual or legal issues. The ALJ made findings of fact not supported by a preponderance of the evidence.91 (b). introduce evidence and conduct cross-examination. The ALJ’s decision is contrary to law. 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. Page 41 . Hearing expected to take less than two days. the OSHRC introduced the E-Z Trial procedure. The employer can also file a Petition for Discretionary Review by the OSHRC. the ALJ makes a recommended decision that is transmitted to the parties. The ALJ’s recommended decision is also filed with the OSHRC. No fatality. The ALJ can recommend that the citation items and/or penalties be affirmed. Proposed penalty less than $10.

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

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

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

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

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

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

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

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

etc. One of the advantages is that VPP participants are exempt from routine programmed inspections during the period of their participation.” VPP Program OSHA’s Voluntary Protection Program (VPP) is basically a more extensive safety consultation. No penalties are proposed or citations issued for hazards identified by the consultant. etc. Page 50 . OSHA will offer ways to upgrade the employer’s programs and will make periodic visits to monitor the employer’s progress. The employer’s only obligation is to correct all identified serious hazards within the agreed upon correction time frame. “Star” level participants are evaluated every 3 to 5 years. Again. accidents. accidents. OSHA consultation assistance will not provide the employer’s name or workplace information to OSHA enforcement. onsite assistance in developing and implementing effective workplace safety and health management systems. as well as limited assistance away from the worksite. 2002). there are a number of services provided: Services Provided by OSHA * The following quoted information is taken directly from OSHA Publication 3000 (Rev.COM LOSS PREVENTION SERVICES If the employer wishes to take some precautionary measures prior to an inspection. 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.. OSHA’s Consultation Service “OSHA’s consultation service provides free. or 2 years upon renewal. 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.” “Consultation assistance is available to small employers (with fewer than 250 employees at a fixed site and no more than 500 corporatewide). “Demonstration” level participants are evaluated annually. complaints. The initial on-site visit will last two to four days and evaluate the effectiveness of the employer’s programs. The frequency of the periodic visits depends on the employer’s VPP level. Of course. 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..OSHAGUIDE. 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. will still be investigated in the usual manner. complaints.

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

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

For example. If the complainant did not request confidentiality.Information received by OSHA that a safety standard is being violated. 29 CFR § 2200.34 (b)(2).com to obtain contact information for all OSHA Area Offices. 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.This refers to the OSHA practice of combining multiple violations of the same standard into a single violation.oshaguide. etc. and usually does.. seven machines in violation of the same machine-guarding standard would result in only one violation of that standard. greater hazard. Citation . employee misconduct. You can go to the “OSHA Links” page at www. The employer’s answer must also include any affirmative defenses that it wishes to raise. The Compliance Officer will advise the employer about the specifics of the citation and other related matters. The employer must file the appeal letter (i. In the case of a contested citation. result in an inspection.34 (b)(3). Courts of Appeal are divided into 12 federal circuits – 1st Circuit. Notice of Contest) within 15 days of its receipt of the citation. 29 CFR § 2200. Circuit court decisions that are appealed go to the U.g. Combined Violation .The document issued by OSHA after the inspection to cite violations. Circuit Court – One of the terms used to refer to the United States Courts of Appeal.The legal standard for weighing the evidence.OSHAGUIDE. Burden of Proof . OSHA always has the burden of proof in establishing a violation.” The citation will usually include penalty amounts and set correction dates for the violations. the standard is the “preponderance of the evidence” (more probable than not). 29 CFR § 2200. and it is Page 53 .COM wishes to contest. Supreme Court. Area Director – The Director of an OSHA Area Office. Appeal . The complainant’s identity will be kept confidential if the complainant so requested. The circuit courts are the forum for contested citations on appeal from the Occupational Safety & Health Review Commission (OSHRC). It is more formally called a “Citation and Notification of Penalty.Another term for contesting a citation. The term “Circuit Court” is sometimes used because the U.S.S. Civil Penalties . Such information may.e. 2nd Circuit.The monetary fines assessed by OSHA for safety violations. An OSHA Area Office is located in most States.The conference between the Compliance Officer and the employer conducted after the inspection process is completed. etc. Complaint . Closing Conference .e.34 (b)(4). The employer has the burden of proof when it is asserting an affirmative defense.

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

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

000. cases must not involve complex factual or legal issues and the proposed penalty must be less than $10. General Duty Clause . . E-Z Trial procedures are simplified in a number of ways: Complaints and answers are not required. Field Inspection Reference Manual (FIRM) .In 1995. It can also be the person in charge at the time of the inspection.COM Employer Representative .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. etc.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 closing conference and the inspection.OSHA’s internal resource manual that instructs Compliance Officers on inspection procedures. ALJ usually issues decision from the bench. the OSHRC introduced the E-Z Trial procedure which is a simpler and less expensive method of resolving contested citations. The employer representative also has the right to be present at the opening conference. § 654 (a)(1). Hearings are less formal. 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.A work accident resulting in an employee’s death.OSHAGUIDE.” 29 U. The employer representative can request a warrant or consent to a warrantless inspection. Federal Rules of Evidence do not apply.C. and other related matters. OSHA will cite the employer for violations of the general duty clause when hazards exist that are not covered by specific standards.S. Field Notes . . a very long-term construction site could be considered a fixed place of employment.An employer facility at one general location. To be eligible.A person designated by the employer to be its representative when dealing with OSHA. E-Z Trial . 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. OSHA FIRM § IV-C-2-d. Fixed Place of Employment . Fatality .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. This is known as the “General Duty Clause” which provides: “Each employer . IN some cases. (See “Agent of the Employer” above). Gravity Based Penalty (GBP) . 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. probability and severity assessments. OSHA uses the general duty clause as a “catch-all” provision. If the employer qualifies for Page 56 .

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

(3) the penalty amounts.000 divided by the sum of employee hours worked in the reference years.C. Occupational Safety & Health Review Commission (OSHRC) – The OSHRC is a body independent from OSHA and the U. The statistic is intended to reflect the number of lost workday injuries experienced by 100 full-time workers.S.The OSH Act refers to the federal Occupational and Safety and Health Act of 1970. Other Than Serious Violation .OSHAGUIDE.COM Loss Prevention Services . (2) the abatement period. Penalties for failure to correct (or “non-abatement”) can be as high as $7.000. An “Other Than Serious Violation” is more serious than a de minimus violation but less serious than a “Serious Violation.The employer has the right to contest the citation if it disagrees with any of the following: (1) the alleged violations. 29 U.C. Non-abatement .The employer’s failure to correct the violations within the correction dates set forth in the citation. Page 58 .C. (See “Loss Control Consultant” above). Department of Labor that reviews the decisions of the Administrative Law Judge (ALJ) that presided over the contested case hearing. The number of LWDI’s can be obtained from the employer’s OSHA 300 log. The Notice of Contest is submitted to the OSHA Area Director.The statistic used by the Compliance Officer to determine employer trends in injuries and illnesses.S. The formula for calculating the employer’s LWDI Rate is: the sum of lost workday injuries (LWDI’s) in the reference years x 200. Lost Workday Injury (LWDI) Rate .S. or.S.also referred to as “circuit courts. Notice of Contest . The employer’s written notification is formally called a “Notice of Contest.The free consulting services provided by many workers compensation carriers. The Compliance Officer will explain the purpose of his visit and identify the persons to accompany him during the inspection.C. § 666 (k).” The maximum penalty for an Other Than Serious violation is $7.” Opening Conference . but it is usually much less than that.000 per day for each day past the correction date.S.” 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. § 651 et seq.” Public Law 91-596.An “Other Than Serious Violation” is a violation that will not result in death or serious physical harm. 29 U. § 666 (c). OSH Act . The employer must give OSHA written notice that it disagrees with the citation. 29 U.The preliminary conference between the employer and the Compliance Officer prior to the start of the inspection. It is also referred to as “The Williams-Steiger Occupational Safety & Health Act of 1970. § 659 (a).S. 29 U. Appeals of OSHRC decisions are heard by the U. The OSHRC either adopts the ALJ’s opinion or issues a decision of its own. Courts of Appeal . For an exact calculation the employer should contact its workers compensation carrier Loss Control Consultant.

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

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

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

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