This action might not be possible to undo. Are you sure you want to continue?
William M. Brewster, M.I.M., J.D.
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
employers are demanding to know their rights and responsibilities. His OSHA manuals have been featured on amazon. M. 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.. citations and contains a glossary of common OSHA terms.OSHAGUIDE. JD.I. penalties. This concise manual discusses employer rights. This manual is updated every year to reflect changes in the law.com and they are currently used as a resource across the United States and internationally. D. Brewster. The federal OSHA manual applies to most of the United States. He currently practices law in Oregon and Washington. J. MIM. INTRODUCTION OSHA compliance is becoming more difficult and employers must devote more of their resources to deal with this issue.C.COM OSHA Inspections and Defenses OSHA 2004 William M. Condor OSHA Guides THIS MANUAL DOES NOT REPLACE LEGAL ADVICE. Accordingly.M. Copyright 2003 Page 1 . 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. It explains violations. Brewster. This problem is compounded by the fact that failure to comply can result in civil and sometimes criminal penalties. CONTACT AN ATTORNEY IN YOUR AREA IF YOU REQUIRE LEGAL ASSISTANCE.D. strategies and defenses during federal OSHA inspections. It addresses the following jurisdictions regulated by federal OSHA including Puerto Rico and the Virgin Islands**: Alabama Arkansas** Connecticut** Colorado Delaware Wash.
However. 2004. including the addition of an occupational hearing loss column and more clear-cut formulas for calculating incidence rates. There is no longer a column for work-related injuries associated with ergonomic factors.osha.pdf for the new form. 2003 and 2002 injuries and illnesses should be recorded on the forms for those years)..osha.COM SPECIAL NOTICES FOR 2004 New OSHA 300 Form Effective January 1. You can go to www.pdf Additionally.osha. The new 300A form that includes the hearing loss column should be used to post in February 2005. Employers must begin using the new OSHA 300 Form on January 1. employers should use the old OSHA 300A Summary Form (without the hearing loss column) to post as required in February 2004. Injuries and illnesses for years prior to 2004 should continue to be recorded on the appropriate form for that year (i.OSHAGUIDE. 1/2004) located on the form next to the form number. www.gov/recordkeeping/new-osha300form1-1-04. The new form has the date of the revision (rev.gov. The forms for 2003 and 2002 will continue to be available on OSHA's website at www.e. The revised form includes various changes. OSHA directs that employers still record ergonomic-type injuries in either the “injury” or “all other illness” columns.gov/recordkeeping/OSHArecordkeepingforms. 2004 ** The following information is quoted directly from OSHA’s web site. Page 2 .
S. this manual is limited to OSHA inspections and. machine guarding. are found in the Code of Federal Regulations (CFR). Accordingly. Some cases may not apply to your particular jurisdiction. Supreme Court. “29 CFR 2200.S.37. Thus. However. However. There are other books and manuals that address specific OSHA regulations about hazard communication. it does show how Compliance Officers address particular situations and calculate penalties. An appeal of an OSHRC decision is heard by the U. it is very helpful for the reader to be able to recognize the different types of cases cited.S.” 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. references to the OSH Act are in this type of format. However. 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.S. The OSHA FIRM is not law and.” The Code of Federal Regulations (CFR): The specific safety standards regulating work practices and processes such as fall protection. Thus. which is divided into twelve federal circuits. it has no value as a legal document binding OSHA. fall protection. In this manual we refer to the OSH Act as it is cited in the United States Code. therefore.” Court Cases Cited In the federal manual you will also see cases cited from different courts. § 651. Some cases are more important than others. the order is as follows in terms of importance: (1) U. “OSHA FIRM § IV-B-1. it is not concerned with the broad range of safety standards contained in the CFR. etc. therefore. “29 U. Supreme Court Page 3 .OSHAGUIDE. At the first level. assessment of penalties and issuance of citations. contested citations are heard by the Occupational Safety & Health Review Commission (OSHRC).C.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 OSHA FIRM in this manual are in this type of format. References to the CFR in this manual are in this type of format. Court of Appeals. An appeal of a federal circuit court decision is heard by the U.
Marshall. 9th Circuit Guam Idaho Montana 10th Circuit Colorado Kansas Oklahoma 11th Circuit Alabama Florida Georgia Page 4 . Court of Appeals. Readers will benefit the most by knowing the number of their federal circuit of the U. 1816. 98 S. 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. Inc. U. Citations to the different courts are in the format shown below.2d 1021 (5th Cir. Occupational Safety & Health Review Commission (OSHRC) Decision Keco Industries.S. 436 US 307. Barlow’s Inc.COM decision. Court of Appeals Decision Stephenson Enterprises. 1978).S. Court of Appeals. Inc. Supreme Court Decision Marshall v.S.”. the reader will want to focus on the enlarged portions indicated in bold. “5th Cir. and.Ct. 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..”.2d 305 (1978). (3) OSHRC decision. U..C. 7 OSHC 2048 (1979). There are twelve federal Circuit Courts and many cases are cited in this manual as coming from the “1st Cir.Ed. (2) federal circuit court decision of the U.OSHAGUIDE. 56 L. v. etc. 578 F. D. For quick recognition.
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
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.
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).
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
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
probable cause would be specific evidence of an OSHA violation – e. probable cause would be specific evidence of a criminal violation – e. Probable cause for OSHA inspections An OSHA inspection is considered an “administrative search” rather than a criminal search.2d 305 (1978). 1816.Ed. an accident. Programmed inspections are based on an inspection list. Marshall v.Ct. or schedule.. etc.. observation of an employee working without fall protection. supra. OSHA can develop a scheduled list of employers to be inspected as long as neutral standards are used – e. Barlow’s Inc. the employer has the right to request a warrant to confirm that “cause” exists before OSHA can conduct an inspection. etc. In contrast. 56 L. in the OSHA context.COM EMPLOYER RIGHTS Constitutional Protections Because OSHA can impose civil penalties and criminal sanctions the employer is afforded some protection against unauthorized searches under the Fourth Amendment to the United States Constitution. by industry.g. for administrative searches. 98 S. Administrative searches and criminal searches are similar in the sense that specific evidence can provide probable cause for a search. In the criminal context.OSHAGUIDE. or schedule. Accordingly. This means that OSHA must have probable cause to perform the inspection. Barlow's. 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. Administrative searches and criminal searches are different in that. “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. Thus. the police cannot search private homes merely by developing a list of “suspects” whether or not neutral criteria are used to develop the list. The scope of the inspection To address the “scope” issue. broken taillight (traffic infraction). Thus. “Probable cause” for programmed inspections is provided by the inspection list.” Page 8 . by geographic location. citizen complaint (drug offense). or “wall-to-wall. probable cause can also be provided by reasonable legislative or administrative standards.. Programmed inspections are by nature comprehensive. developed by OSHA..g. 436 US 307. etc. a complaint. Similarly. They are referred to as “programmed” and “unprogrammed” inspections based on the type of “probable cause” involved. it is important to know the two types of inspections performed by OSHA.g.
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. etc. programmed) such as accidents. 693 F. 8th Circuit & 11th Circuit: OSHA must make “some showing” of why a broad warrant is appropriate in a particular case. Warrants The employer has a constitutional right to request a warrant in order to confirm that probable cause exists for the inspection.e. 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... accident or observed violation. Barlow's. If the inspection is unprogrammed (accident. Page 9 . complaints. Theoretically. supra. 626 F. (3) whether a full inspection had been conducted within the preceding year.2d 320 (3rd Cir. Donovan. 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.. (4) whether the facility would be due for a programmed inspection in the near future. In re Cerro Copper Products Co. the annual percentage of employers requesting warrants for OSHA inspections is usually quite small. 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. Sarasota Concrete Co.. Indeed. most administrative searches are conducted on the basis of consent. etc.COM Unprogrammed inspections are so named because they are in response to incidents that cannot be scheduled (i. North American Car Co. Marshall v. However. complaint. Hern Iron Works.OSHAGUIDE. the nature of the complaint. (2) whether the nature of the employer’s business and its safety record qualified it for a general inspection. the great majority of businessmen can be expected to consent to a search without a warrant. 1982). 1980). 1984).2d 172 (8th Cir.). Inc. 741 F. However.2d 1061 (11th Cir.. Carondelet Coke Corp.2d 280 (7th Cir. unprogrammed inspections should be limited to the subject matter providing probable cause – e.2d 838 (9th Cir. v. 1985). “Probable cause” is provided by the specifics of the complaint. The Compliance Officer’s response will assist the employer in determining whether to request a warrant. 670 F. 752 F. Donovan v. As the Supreme Court noted in Barlow's. 1982).g. and (5) whether OSHA’s limited resources were being utilized in the public’s best interest. the cause of the accident. etc.
etc.) 4. “If you don’t use it – you lose it. However.) the employer may want to request a warrant to avoid having OSHA transform the inspection into a broad “wall-to-wall” inspection.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. Valid Consent or Warrant Exceptions Apply: A property owner. Consent for Page 10 . To Avoid Waiving Constitutional Protections: The employer cannot invoke its constitutional protections without requesting a warrant. In more common vernacular. However. 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. accident.” 3. this is only a factor in jurisdictions that recognize such limitations. Valid consent operates as a waiver of the Fourth Amendment right against unreasonable search and seizure. Consent to Warrantless Inspections The right to a warrant must be asserted at the beginning of the inspection or it can be deemed waived. Perhaps one of the many warrant exceptions also apply.e. can give valid consent to a warrantless inspection with respect to any on-site employers. Valid consent to a warrantless inspection operates as a waiver of the Fourth Amendment right against unreasonable search and seizure. 2. (See next Section for further discussion.OSHAGUIDE. Factors Against Seeking a Warrant 1.. 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. To Keep an Unprogrammed Inspection Limited in Scope: If the inspection is unprogrammed (i. 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. Maintaining the Compliance Officer’s good will is something employers should always consider. The right to a warrant must be asserted at the beginning of the inspection or it can be deemed waived. or general contractor in charge of multi-employer work site. 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. complaint. 2. 3.
See v. Stockwell Mfg. v. 412 U.Ed. Miranda type warning not required.S.2d 943 (1967). J. 400 U. cert. 91 S. Donovan. 578 F. 387 U. Stephenson Enterprises. 87 S. Municipal Court. Lake Butler Apparel Co.. Thus. 218 (1973). Thriftmart. 1727.COM administrative searches is less stringent than that required for criminal searches e. v. United States v. and the employer's acquiescence to the inspection.2d 185 (1970). 1737. 523.2d 1021 (5th Cir.Ct.” One federal Circuit Court held that valid consent was given by a foreman. 519 F. 387 U. Co.2d 987 (8th Cir. den. 1977).S. 1970). The courts will look at the "totality of the circumstances" to determine whether consent was freely and voluntarily given. this rule has been applied where delay to get a warrant would Page 11 . Camara v. or general contractor in charge of multi-employer work site. 429 F. Consent by Others A property owner. Secretary of Labor. Those situations generally cover instances when OSHA needs to preserve an accident scene or temporarily remedy a patently life-threatening hazard. Warrant Exceptions There are several situations where a full inspection can be performed without a warrant. Bustamonte. Kramer Grocery Co. United States v. Other federal cases have also held that the Compliance Officer's mere announcement that he is there for an inspection. 1978). 541. 536 F. Inc. v. 786 F2d 714 (6th Cir.2d 84 (5th Cir.Ct. 1975). Seattle. Inc. Marshall. 553 F. Foti Construction Co. Consent is not valid if it is the result of threats.2d 1006 (9th Cir. 926.2d 930 (1967). 1976). coercion or misrepresentation. OSHRC.OSHAGUIDE. v. 188. v.S.g.2d 1021 (5th Cir. There are also some isolated situations where OSHA can initially enter the premises without a warrant to accomplish a specific purpose. 87 S.L. Marshall. 18 L. Inc. 18 L.Ct. manifests consent.S. Dorey Electric Co. In the OSHA context.. 1978). An Emergency An administrative search without consent and without a warrant is permissible in the event of an emergency. Usery.Ed. Consent can be given by any competent management official. Stephenson Enterprises. 27 L.. 418 F. The authority to give valid consent can also extend down the management “food chain.2d 1309 (1oth Cir. 1969). can consent to a warrantless inspection with respect to any on-site employers. Schneckloth v. a plant manager can give valid consent. which is generally defined as a threat to human life. 1986). 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.2d 357 (4th Cir. Consent to an administrative inspection need not be express and the failure to object to a known search constitutes consent. v.Ed. 578 F.
R. 1984). 98 S. Bast Hatfield Inc..2d 1235 (4th Cir. Marbury. 170. Western Waterproofing Co. Tri-State Steel Construction Inc. 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. 499.Ed. This exception often applies to construction activities conducted outdoors if the public has access to the work area. 560 F..Ed. violations were observed while looking through the window of an attorney’s office with the attorney’s consent. 783 F.. 463 U. 1986). Oliver v. Willson & Sons. 732 F. 436 U. Inc.2d 1422 (9th Cir. signs or totally enclosing the area with tape marked “Do Not Enter” or similar language. 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. For example. Marshall v. 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. L..S. Secretary of Labor v. 765. 56 L. The observance of the violation must also be inadvertent. United States v. 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. 2d 947 (8th Cir. fencing. v. Inc.2d 214 (1984). Inc.. Michigan v. 466 U.Ct. 443. Head. Page 12 . Secretary of Labor v.. 134 F. 1998).COM increase the danger and consent could not be obtained. v.OSHAGUIDE.R. 17 OHSC 2165 (1996).S.. The “open fields” exception also applies to indoor facilities open to the general public.S.. the Compliance Officer should not trespass on private property or within a closed work site to view the violation. New Hampshire.S. The use of a telephoto lens that enhanced the Compliance Officer’s view has also been upheld. However. Globe Contractors. 19 OSHC 1287 (2000). United States. Secretary of Labor v. 1735. even in places open to the public such as a grocery store. The Compliance Officer must be lawfully positioned -. 468 (1971) and Illinois v. Secretary of Labor v.. 1998). New Hampshire. Thus. 399 (5th Cir. Tyler.i. OSHRC. 1942.Ct. OSHRC. federal case law recognizes some constraints. Andreas. United States v. In one case. Compliance Officers can legally videotape roofing contractors working without fall protection from a vehicle parked on a public street. Coolidge v. such as commercial retail space. L. 771 (1983). 15 OSHC 1903 (1992) citing Coolidge v. 403 U. 80 L.2d 486 (1978).e. 104 S.2d 1235 (4th Cir.2d 390. 1978). Latite Roofing & Sheet Metal Co. supra. a contractor might be able to create a privacy interest by closing the site to the general public by means of barricades. Thus. 134 F. However. 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. 18 OHSC 1848 (1999).
2. One option is for the employer to refuse the inspection and seek to quash the warrant in civil court. 3. the forklift driver begins talking about other unsafe practices including the employer’s lack of a hazard communication program. or middle ground. the presentation of OSHA credentials is similar to a police officer “flashing his badge” to prove his identity. Another option is to allow the inspection under protest and then seek to quash or modify the warrant in civil court. OSHA can then begin looking into hazard communication issues. 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. An alternative. the Compliance Officer may be asking a forklift driver about the forklift accident. the employer would then defend its refusal to comply with the warrant. which is likely. However. This is viewed as less severe than challenging a warrant and also avoids the delay of waiting for the contest proceeding to go to hearing before the OSHRC. The purpose is somewhat similar.COM Violations found in plain view during an otherwise legitimate inspection can be cited. Challenging Warrants The employer basically has three options if it wishes to challenge an OSHA inspection warrant: 1. a Compliance Officer can cite a machine guarding violation in plain view. the Compliance Officer will present his or her “credentials” which usually consists of an official badge or OSHA identification card. However. to challenging a warrant is to seek a protective order with the goal of favorably modifying the scope of the inspection. If OSHA initiates a contempt proceeding against the employer. However. Page 13 . In practice. INSPECTION PROCEDURE Presentation of Credentials Upon arrival. The most favored option is to allow the inspection under protest and then challenge the warrant in contest proceedings before the OSHRC. Thus. 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). For example. the employer must be prepared to wait until the contest proceeding goes to hearing – which often can take quite some time. while conducting an inspection to investigate a forklift accident. This method is not favored because of the fines and costs associated with contempt proceedings.OSHAGUIDE.
C. “Who is Page 14 .. a foreman or leadperson can be deemed the “employer representative” for the purpose of conducting an inspection if no other management official is present. Keco Industries.” 29 U. However.. Dorey Electric Co. Opening Conference After entry is granted.C. even if the employer has consented to a warrantless inspection... 626 F. the scope of its consent) and give a copy of this document to the Compliance Officer and keep another copy for its records.” 29 U. 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. An authorized employee representative shall also be given an opportunity to accompany the Compliance Officer during the inspection. § 657 (a). v. the Compliance Officer will make a reasonable attempt to contact a management official. the Compliance Officer will not delay the inspection an unreasonable length of time. The Compliance Officer will also request employer records. it is a good practice during the opening conference for the employer to document the scope of its consent.. Steel Corp. § 657 (e). A critical point for the employer is to define the scope of those deemed to be the authorized employer representative prior to an inspection.S. 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. OSHRC.2d 357 (4th Cir. Merchants Oil Inc.F. in response to an accident. Marshall v. the Compliance Officer will conduct an opening conference explaining the purpose and methods of inspection.” This broad definition generally encompasses anyone with apparent authority at the work site.2d 320 (3rd Cir. If it is an unprogrammed inspection (i. 8 OSHC 1162 (1979). 1978) (most “senior employee” left at the site deemed agent in charge). The employer should document in writing the scope of the inspection that it has authorized (i. & I. The problem arises when the supervisors are absent and the Compliance Officer asks. 1977) (foreman was deemed agent in charge). There is some limited authority for the proposition that even if an employer consents to a warrantless inspection. 553 F.. the Compliance Officer will ask for the “agent in charge. complaint. Inc.S.C. or agent in charge of the workplace.e. North American Car Co. operator.COM There have been cases of con men posing as Compliance Officers and soliciting bribes or “protection money” to prevent inspections. ask whether there are any trade secrets that need to be protected and identify the participants to the inspection. Id. The owner or operator is usually easily identified. If neither is present. As with the “agent in charge” issue during the presentation of credentials.e. complaint. The OSH Act conditions an inspection upon the proper presentation of credentials to the “owner. 7 OSHC 2048 (1979). etc.OSHAGUIDE. 1980). 576 F.2d 809 (10th Cir. If an “agent in charge” still cannot be readily identified. Thus. Marshall v. the inspection still cannot exceed the scope of the employer’s consent.
some employers feel that it is worth the risk to produce their own record of the inspection. 29 CFR 1903. the employer should be cooperative. If the Compliance Officer is conducting an unprogrammed inspection. but cautious. The Compliance Officer can interview employees in private outside the presence of an employer representative.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. However. Employers need to be aware. the Compliance Officer will conduct a tour of the business premises. Any evidence that employers collect may be used later by OSHA to prove a violation.7 (b). that this is a two-edged sword. The above strategy will not prevent an inspection. about the information it volunteers.S.” Therefore. The purpose is to produce mitigating evidence to refute any damaging evidence collected by OSHA. the Compliance Officer will be attempting to identify safety code violations. the employer should attempt to keep the inspection limited to the area of the accident or the area identified in the complaint. If this is an unprogrammed inspection. The employer can be cited for any information that it volunteers to the Compliance Officer.C. This right probably also includes videotape as long as trade secrets are adequately protected. 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.C. Even so. 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. As noted. Accordingly. § 657 (a)(2). During the walkaround. The Walk-Through and Collecting Evidence After completion of the opening conference.” The Compliance Officer is authorized to conduct an inspection “during regular working hours and at other reasonable times. the employer should limit the discussion to the specifics of the accident or 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.S. it is important for the employer to limit the scope of the inspection as much as practicable. 29 U. § 657 (a)(1). The Compliance Officer has the right to take environmental samples and photographs. 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. even during an unprogrammed inspection the Compliance Officer can cite the employer for any other violations in “plain view. however. and within reasonable limits and in a reasonable manner.OSHAGUIDE. Therefore. Many employers choose take their own photographs and videotape during the inspection.” 29 U. the employer should schedule the employee interviews and designate a neutral area Page 15 .
despite OSHA’s enforcement and outreach efforts. 4.S. 2. The employer’s right to contest the citation.OSHAGUIDE.” 29 U. 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. The EEP is not actually federal law. The employer’s duty to post the citation. 29 CFR 1903. The program is more fully discussed in an OSHA memorandum dated September 30. the Compliance Officer will inform the parties of the following: 1. Whether any violations were found and if a citation will be issued. 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. The right to request an informal conference with OSHA. that can be found on OSHA’s web site. Rather. In essence. PEC Criteria A Priority Enforcement Case. the EEP is an OSHA program which sets forth the procedures that OSHA Regional Administrators should follow in cases meeting the PEC criteria. ENHANCED ENFORCEMENT PROGRAM (EEP) OSHA’s Enhanced Enforcement Program (EEP) addresses employers who. thereby placing their employees at risk. penalties or correction dates. The requirements for abating any violations or requesting extensions of the correction date.7 (e).remember the “plain view” problem. the employer will also be considered for criminal referral under section 17(e) of the OSH Act. 3. At the closing conference. Page 16 .COM such as a lunchroom. This prevents the Compliance Officer from rambling around the facility without a management person present . If OSHA finds that a willful violation caused the death of an employee. If the Compliance Officer objects. is defined as any inspection that meets one or more of the following criteria: 1. That discrimination against employees is prohibited for exercising rights under the OSH Act.C. 5. ignore their OSH Act obligations. § 657 (a)(2). 6. or PEC. 2003. A fatality inspection in which OSHA finds a high gravity serious (or willful or repeated) violation related to the death. Closing Conference After the inspection is completed the Compliance Officer will hold a closing conference with the employer and employee representative.
OSHA may also hold meetings with company officials or send letters of concern to the company president. 4.COM 2. Applying the agreement company-wide. and to consent to OSHA's conducting an inspection based on the report. 3.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. Requiring the employer to submit to OSHA its Log of Occupational Injuries and Illnesses on a quarterly basis. Related establishments of the same employer will also be placed higher on OSHA’s inspection priority list. OSHA will often make greater use of settlement provisions to ensure future compliance. An inspection that results in three or more high gravity serious violations classified as willful or repeat violations. using settlement agreements to obtain from employers a list of other job sites. and Page 17 . OSHA will mail a copy of the citation and notification of penalty to the employer’s national headquarters. the EEP recommends that at least one other worksite be inspected. 5. Requiring the employer to notify the Area Office of any serious injury or illness requiring medical attention and consenting to an inspection. Necessary information about the company will be disseminated through the OSHA intranet and e-mail. in general industry). An inspection that results in two failure-to-abate notices where the underlying violations were classified as high gravity serious. Inspections of Other Sites When circumstances warrant. If the employer is in construction. 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. OSHA may consider including some or all of the following terms within the settlement agreement: 1. In construction (and where appropriate. PEC Follow-up Inspections In PEC cases. Using Settlement Terms to Ensure Compliance and Abatement In PEC cases. 3. 2. Company Headquarters Notification In PEC cases. a follow-up inspection will be conducted even if abatement of the cited violations has been verified.
Section 11(b) Summary Enforcement Orders are sometimes used as an effective and speedier alternative to failure-to-abate notices. onsite assistance in developing and implementing effective workplace safety and health management systems. If you need help determining which programs or standards apply to you. contact your workers’ compensation carrier.gov/comp-links. The inability to locate any required records and written programs makes a poor impression on the Compliance Officer. OSHA 301 forms and/or worker’s compensation claim forms. OSHA 300 Log. Many carriers provide free loss prevention services. OSHA also has many free publications that can be downloaded off the Internet at the web address listed above. as well as limited assistance away from the worksite. If any of the rules are violated.osha.e. Keep copies of any other written programs in a central location for easy review by OSHA. No penalties are proposed or citations Page 18 . and check if there are any proposed rules which will affect your industry. Monitor these proposed rules to determine if you need to implement any new programs/procedures or apply for a variance. During any inspection. OSHA Form 300A.html.COM 6.OSHAGUIDE. EMPLOYER STRATEGIES Before The Inspection Download any applicable safety codes and regulations from the Internet at OSHA’s Web address: www. 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. Finally. 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. Consultation assistance is available to small employers (with fewer than 250 employees at a fixed site and no more than 500 corporatewide). Adopt a company safety policy. Keep these records up-to-date and in a central location for easy review by OSHA. “OSHA’s consultation service provides free. Obtaining employer consent to a court enforcement order mandating abatement.g. many private safety and health consultants are often listed in your local telephone directory. Periodically visit OSHA’s website. Most employers are required to develop and implement certain written safety programs (e. 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. Employers may also receive training and education services. etc. Your carrier’s Loss Control Consultant can assist you in developing and implementing the required safety programs. hazard communication). OSHA always has authority to examine mandatory records .g.
document in writing the scope of the inspection that you have authorized. At the Beginning of the Inspection Determine whether you want to waive your right to a warrant.] You may also consider applying for OSHA’s VPP and SHARP programs.” [Quoted from OSHA Publication 3000 (Rev.e. A property owner. Certain warrant exceptions may also apply.g. Give a copy of this document to the Compliance Officer and keep a copy for your records. and (2) take alternative steps to protect your employees. complaints. signs or totally enclosing the area with tape marked “Do Not Enter” or similar language. fencing. 2002). A warrant is best utilized with unprogrammed inspections (accidents. A warrant has less value with respect to a programmed (scheduled) because they are by nature comprehensive inspections. etc. that they are NOT in charge of the worksite during their supervisor’s absence. etc. 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. OSHA 300 Log. The employer’s only obligation is to correct all identified serious hazards within the agreed upon correction time frame. if you do not request a warrant you waive any constitutional protections. OSHA consultation assistance will not provide the employer’s name or workplace information to OSHA enforcement. This will assist you in tactfully requesting a warrant if the need arises. However.COM issued for hazards identified by the consultant. Participation in these programs can exempt the employer from some inspections. Consider adopting a written policy of requesting warrants for all OSHA inspections. Even experienced attorneys find this complex. if you are an employer. Be ready to access any records related to your mandatory record keeping requirements . If you decide to consent to a warrantless inspection. Advise informal leadpersons and crew leaders that you do not want them to act as employer representatives during an inspection.OSHAGUIDE. if asked. close any open work sites to the general public by means of barricades. or general contractor in charge of multi-employer work site. On multi-employer worksites. If possible. Designate the authorized employer representatives for the purposes of OSHA inspections. Explain to them that they should inform OSHA. preferably in writing.) to prevent OSHA from exceeding the scope of the inspection. can consent on your behalf to a warrantless inspection. 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. do the following: (1) make a reasonable effort. If this is a programmed Page 19 .
which is his right. etc. etc. if this is a programmed (comprehensive) inspection. Accordingly. However. Even during unprogrammed inspections the Compliance Officer can cite the employer for any violations in “plain view. Take your own pictures and videotape of the alleged violations.g. If the Compliance Officer requests to talk to employees in private. Therefore. training received by the employees. it is very important during the inspection to point out those factors which reduce the probability of an accident occurring .OSHAGUIDE. try to make sure that the Compliance Officer confines the inspection to the area of the accident or the complaint. Legal representation is especially advisable if your company has a poor history with OSHA. be cooperative but cautious about the information you volunteer.COM (comprehensive) inspection. as much as practicable. limited access to the point of danger. You can be cited for any information you volunteer to the Compliance Officer. Page 20 . the Compliance Officer is authorized to inquire into any and all safety issues.g. If this an unprogrammed inspection. It explains the rationale behind the specific violations found and how the penalties were calculated.” Accordingly. lock-out/tag-out. During the Inspection Determine the persons who will accompany the Compliance Officer during the inspection. 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.. Have employees close their tool boxes and store broken equipment. Confirm with your employees whether the Compliance Officer accurately characterized their statements.e. try and keep the discussion limited to the specifics of the accident or complaint. or the citation involves a serious injury or willful violation. hazard communication. Correct as many violations as you can during the inspection. few employees exposed. Request a copy of the investigation report at the closing conference. However. you may also want to include trained persons with technical expertise concerning the machinery or processes involved. This will certainly include the authorized employer representative. other means of protection. be ready to access any other written programs e. The investigation report often contains employee statements paraphrased in written notes by the Compliance Officer. exposure limited in duration. the employer should schedule the interviews and designate a neutral (nonproduction) area such as a lunchroom. a problem with repeat violations.
51 (b). 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. Accordingly.S.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.C.000 or six months imprisonment. the complaint may come during the midst of a labor dispute. OSHA will not release the complainant’s identity. If the informal conference goes poorly. For example. § 659 (c). It is this type of information that will most likely result in violations being withdrawn or penalties being reduced. or both.OSHAGUIDE. 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. PMAs are filed with the OSHA Area Director.21 (c). there is no formal mediation under the OSH Act or the procedural rules of the OSHRC. the parties can sometimes accomplish much the same purpose by requesting a pre-hearing conference with the Administrative Law Judge. 29 CFR § 2200. However. or certification in any application. 29 U. The filing is timely if it is postmarked within the 15-day period. § 659 (a).37 (c).17 (a). This is because a general violation is more subject to providing the foundation for a repeat violation. if a specific program is involved (e. They must be filed before the close of the next working day following the date on which abatement was originally required. 29 CFR § 1903.C. The Notice of Contest is submitted to the OSHA Area Director. The term “working days” excludes Saturdays. § 666 (g). can be imposed for knowingly making any false statement. Petitions for Modification of Abatement (PMAs) are used if the employer does not contest the citation but needs more time to correct the violations. OSHA is generally more interested in mitigating factual information than legal defenses. This is true Page 21 . Likewise.C. 29 CFR § 1903.g.14 a (c). 29 CFR 2200. sometimes an employer obtains information that a disgruntled employee filed the complaint. Criminal penalties of $10. Sundays and federal holidays.S. representation. At The Informal Conference At the informal conference. OSHA will perform an inspection in response to a complaint if they have reason to believe that it is valid. 29 U. exercise extreme caution when completing any documents concerning abatement certification. However. Disgruntled Employees. It is also a good strategy to request that broad general violations be reclassified as specific code violations. plan or other document required by the OSH Act.S. record. 29 U. 29 CFR 1903.
It is an unlawful employment practice for an employer to discriminate or retaliate against an employee who files a complaint with OSHA. Page 22 . whichever is longer.000 for failure to post a citation. However.” 29 U. 18 U. 29 U. However.16 (a).C. OSHA must issue the citation within “six months following the occurrence of any violation.C.S. The citation must remain posted for three days or until the violation has been corrected. The OSH Act requires that copies of the citation be posted near each place of a violation.C. OSHA must prove exposure. A civil monetary penalty for each of the violations will also likely be assessed.” OSHA FIRM § II-A-2-g-(2).S. A longstanding hazard can be cited as long as employees were exposed to the hazard in the six months preceding the citation. 29 CFR 1903.S. 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.OSHAGUIDE.C. the criminal statute of limitations applies which is usually the five-year statute of limitations for federal non-capital crimes. The employer can be assessed a maximum penalty of $7. 29 U.C. it is insufficient for the Compliance Officer merely to surmise that employees must have been exposed to the hazard. Rather. in practice. 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. the employer will need to be cautious about taking any disciplinary action. even if the complainant subsequently violates legitimate work rules. Thus.S. § 658 (b).COM even if the complainant possibly had other motives for filing the complaint.C. § 666 (i). Accordingly.S. 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. a citation will be issued setting dates of correction for each of the violations. § 658 (c). § 660 (c). THE CITATION If the Compliance Officer observes a safety violation or a health hazard. Finally. 29 CFR 1903.16 (b). 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.S. 29 U. 29 U. advise the Compliance Officer that the complaint may have been filed for improper motives if you have good reason to believe this is true. § 658 (a). The six-month period begins to run on the last day that employees had access to the zone of danger. § 3238. Employers should be aware that the six-month “statute of limitations” for citations does not apply to criminal violations of the OSH Act.
can be imposed for knowingly making any false statement. or certification in any application. § 666 (g). 3. 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. lack of material or equipment. 29 CFR 2200. 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.C.14 a (c). This coincides with the employers’ 15-day period in which to file an appeal of the citation. 29 U. The interim steps being taken to protect the employees during the abatement period. 4. Employers generally have a 15-day “grace” period before abatement must occur.000 or six months imprisonment. Criminal penalties of $10. Employers may be assessed penalties of up to $7. 29 CFR 1903. Certification that the PMA was posted 10 days in a conspicuous place sufficient to give all affected employees notice of the PMA. PMAs are filed with the OSHA Area Director. § 659 (c).C.S. the employer’s notice of contest must be made “in good faith and not solely for delay or avoidance of penalties. However.000 PER DAY for each day the violation is not corrected past the correction date.C. The correction dates for each violation can be found on the face of the citation. then the employer must abate the violations. If the citation is not contested.g. A safer practice is to file the PMA before the abatement period expires.S. plan or other document required by the OSH Act.OSHAGUIDE.” 29 U.C. or both. 29 U. representation. unavailability of technical experts. The steps and dates of all employer actions to achieve compliance within the abatement period. The reasons why the employer needs additional time – e. construction or alteration cannot be completed in time. § 659 (b). the employer should exercise extreme care when completing abatement certification documents.COM Abatement “Abatement” is the OSHA term for correcting the violation. § 666 (d). abatement is placed on hold while the employer contests the citation.S. PMAs must contain the following information: 1. Thus. 29 U.37 (c). The specific amount of additional time needed. 5. record. If there is no objection to the PMA by employees or authorized employee Page 23 .. If the citation is contested. 2.S.
Page 24 . When the OSH Act was first established minor record keeping errors were felt to be de minimus. of the hazardous condition. Dun-Par Engineered Form Co. or with reasonable diligence should have known. C. 9 OSHC 2126 (1981). In some jurisdictions this extends to cases where any injury would be trivial. and. Astra Pharmaceutical Products... Secretary of Labor v. The possibility of injury is very remote.2d 69 (1st Cir. 117 F. Wylie Construction Co. their authorized representatives or OSHA.E. v. The employer knew. If there is an objection to the PMA by employees. 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. Inc. Collins Construction Co. Classifications OSHA classifies violations into specific types. The standard is technically violated but the employer provides equivalent or better protection than the standard. 1982).S. The employer failed to comply with the cited standard. then OSHA has authority to rule on the PMA. De minimus violations are now normally reserved for instances when: 1. 1997). However.. 2. 19 OSHC 2060 (2002). Employees were exposed or had access to the hazard. then the Occupational Safety & Health Review Commission (OSHRC) will rule on the PMA. 12 OSHC 1962 (1986). 29 U. D. No penalty is assessed because the violation is determined to be rather trivial. No injury would result.C. that is no longer the case due to flagrant record keeping violations by many employers.COM representatives. 3. Secretary of Labor.3d 691 (2d Cir. A technical violation occurred but no employees could be harmed by the violation. § 658 (a). 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. affirmed in part 681 F.A.OSHAGUIDE.
OSHA must also show that the previous citation became a final order. 2002). 18 OSHC 2082 (2000).C. Accordingly. However.S. the employer can best avoid repeat violations by showing that the prior citation involved different conditions or hazards. § 666 (b). whichever is later. OSHA FIRM § III-C-2-f-(4)-(c). 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.C..S. Serious As noted above. OSHA must show that the same employer was cited once before for the same or substantially similar violation. Repeat The maximum penalty for a repeat violation is $70.” Potlach Corp.. a repeat violation can be established by showing that the same standard was violated.OSHAGUIDE. § 666 (c). This also applies to contractors and other employers with non-fixed worksites. A “Repeat Violation” occurs if. 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.3d 43 (1st Cir.000. Herman. v. Accordingly. An “Other Than Serious Violation” is more serious than a de minimus violation but less serious than a “Serious Violation. 7 OHSC 1061 (1979). 1998) (mechanical machine guarding and electronic eye both involved same pinchpoint hazard). a “Serious Violation” is a violation where there is a “substantial probability that death or serious physical harm could result. OSHRC. 29 U. at the time of the alleged repeated violation. be aware that some courts have interpreted settlement agreements pertaining to prior violations as “final orders. there was a final order against the “same employer” for “a substantially similar violation.COM Other Than Serious An “Other Than Serious Violation” is a violation that will not result in death or serious physical harm. Inc. § 666 (k). The maximum penalty for a “Serious Violation” is $7.S. disabling burns.3d 400 (7th Cir. § 666 (k).000.C.” Modern Continental Construction Co. fractures. 29 U. 305 F. Otis Elevator Inc. § 666 (a). Thus.” 29 U. 29 U. However. Page 25 . v.S.S. 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. OSHA FIRM § III-C-2-f-(3)-(a).C.C. Secretary of Labor v.000. 29 U. etc. 154 F. Examples of “serious physical harm” are amputations. different standards can also result in a repeat violation if the hazard involved was substantially similar.” The maximum penalty for an Other Than Serious violation is $7. Caterpillar. Same or Substantially Similar Violation: Of course. but it is usually much less than that.
However.2d 309 (5th Cir. Secretary of Labor v. v. Brock v. 298 F. 595 F. Caterpillar Inc. St.C. Failure to Abate versus Repeat Violation: The issue is whether or not the violative condition was brought into compliance following the initial inspection. OSHRC. OSHRC. This can be done at the informal conference level. National Steel & Shipbuilding Co.. the federal OSHA states of Alabama. Secretary of Labor. v. Failure to Abate A “Failure to Abate” violation can be found for any violations not fully corrected by the dates ordered in the citation. Rebutting Willfulness: Employers can rebut a charge of willfulness by showing that they made good faith efforts to comply with requirements of the standard. § 666 (a). Joe Minerals Corp.Ct.COM The employer may also avoid future repeat violations by having broad general violations reclassified as specific code violations. 1981). 200 F. OSHA FIRM § III-C-2-f-(6).OSHAGUIDE. Georgia Electric Co..3d 564 (8th Cir.2d 161 (1st Cir. Fluor Daniel v. OSHRC. 522 F. 268 F. Inc. 1979).2d 311 (9th Cir.3d 378 (6th Cir. 19 OSHC 1883 (2002).2d 777 (4th Cir. the employer should request reclassification if it concedes that a violation occurred. OSHRC.3d 437 (7th Cir. 647 F. denied 423 U. v. OSHRC. Inc. See also Alden Leeds.S. which has a maximum penalty of $70. If a specific standard is more applicable. Other jurisdictions have defined a willful violation as one committed with “intentional disregard” or “plain indifference” to the requirements of the OSH Act. National Engineering & Contracting Co... Inc. 809 F. 29 U. Willful The most serious violation is a willful violation. Morello Bros. Secretary of Labor.3d 1123 (D.) cert. Construction. 1975). 2002). 2002). 2001). 122 F.C.3d 256 (3d Cir. 1072 (1976). 578 (1999). Failure to abate exists if the violation was never corrected. Violation of a broad standard is more apt to provide the basis for a subsequent repeat. Dakota Underground. SC Development Corp.S. A willful violation exists if the employer knowingly decided not to comply with the safety standard.000 per day can be imposed if an employer fails to correct a violation. 1979). v. denied 120 S. 1987). v. Inc. v. However.e. § 666 (d). 181 F.000 and a minimum penalty of $5. Herman. the Eleventh Circuit (i. Cir. 2000).. v. OSHRC.C.2d 840 (8th Cir.S. Intercounty Construction Co. 295 F. an employer’s mere knowledge of a standard and subsequent violation of that standard is insufficient to prove a willful violation. 29 U. Marshall. 607 F. v.. cert.3d 1232 (11th Cir. 1997)..000. v. A “Willful Violation” does not require malicious intent or an obstinate refusal to comply. It is a repeat violation if the condition was corrected following the initial inspection but subsequently developed again. Penalties of $7. Florida and Georgia) Page 26 . Kaspar Wire Works.
” 29 U.COM appears to have rejected a good faith defense for willful violations. the general duty clause is limited to “recognized hazards. . General Dynamics Land Systems Division.000.” 29 U. Some critics have argued that the “General Duty Clause” imposes strict liability on employers. 1997). 122 F. § 654 (a)(1).2d 902 (2d Cir. A second conviction is punishable by a fine of up to $20.S. v. 1987). § 666 (e). MJP Construction Co. the employer may be liable for a fine of up to $10. OSHA uses the general duty clause as a “catch-all” provision.3d 1232 (11th Cir. The legislative intent was to protect employees in hazardous situations for which standards had not yet been adopted. Secretary of Labor. See also Caterpillar Inc. OSHA will cite the employer for violations of the general duty clause when hazards exist that are not covered by specific standards. United Automobile Workers v.. 29 U.000.C. or both. Older court decisions have held that a more specific safety standard can preempt the general duty clause. 579 F. v. 295 F. United States v. 29 CFR § 1910. Ladish Malting Co. 568 F. 815 F. The more recent trend is for courts to hold that a general duty clause violation may exist.C. Some regulations indicate that employers should not be cited for general duty clause violations if hazards are addressed by more specific safety standards. 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. OSHRC. 135 F. or both.3d 484 (7th Cir. OSHRC.. six months in prison.C. Usery v. Co. Empire-Detroit Steel v. 1978). OSHRC.5 (f). Reasonable efforts at compliance have been held sufficient even though they are incomplete or not entirely effective. 2002). will defeat a showing of willfulness.. It also applies to Page 27 . § 654 (a)(1). 1977). 19 OSHC 1638 (2001). This is known as the “General Duty Clause” which provides: “Each employer . although incorrect.3d 437 (7th Cir.OSHAGUIDE. Fluor Daniel v. if the specific standard was inadequate to protect the employees. . A recent case has also If a willful violation causes the death of an employee.2d 378 (6th Cir. Marquette Mfg.. despite compliance with a specific standard. This applies to observable conditions that a reasonable person would deem hazardous. 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.2d 1570 (D. imprisonment up to one year. Some cases have even held that the employer’s good faith interpretation of a safety standard.S. Cir.C. However. 1998).S.
It has an obligation not to create the hazard. 2002). 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. 2. An exposing employer’s obligation depends on whether it has the authority to correct the hazard. Cir.OSHAGUIDE. it would not be called a “creating employer. or. v.S. 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. 1973).” Creating employers can be cited if any employees at the site (including those of other employers) are exposed to the hazard. OSHRC.” 29 U. subcontractors and employers utilizing employee leasing companies or temporary employment agencies. Thus. The general duty clause is also limited to hazards that “are likely to cause death or serious physical harm. National Realty & Construction Co. (3) correcting employer.C. Exposing Employer: An “exposing employer” is one whose own employees are exposed to the hazard. by definition.3d 828 (8th Cir. Jordan v.” National Realty & Construction Co. Step Two: Determine whether the employer met the obligations imposed on its particular category.124 clarified the agency’s policy regarding multi-employer citations. (4) controlling employer. OSHA Instruction CPL 2-0. supra. OSHRC. Otherwise. and (2) it failed to take reasonable steps to protect its employees. v. Correction Authority: If the exposing employer has correction authority it can be cited if (1) it knew.2d 1257 (D.COM conditions generally recognized as hazardous by the employer’s industry. Accordingly. NUCOR. Creating Employer: A “creating employer” is one that causes a hazardous condition that violates a safety standard. a violation may not exist if the hazard was unforeseeable or if an accident was the result of freakish or implausible circumstances. (2) exposing employer. § 654 (a)(1) [emphasis added]. No Correction Authority: If the exposing employer has no correction authority it must Page 28 . 295 F. or should have known of the hazard. a creating employer always fails to meet its obligation. even under the rather loose standard of the general duty clause. Step One: Determine for each employer which of the following four categories it comes under: (1) creating employer. Compliance Officers follow a two-step process to determine which employers are cited. This element stands for the proposition that the risk of serious physical harm must be foreseeable. OSHA’s Multi-Employer Citation Policy In 1999. 1. 489 F.C.
C.C. 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.000 ($5. Correcting Employer: A “correcting employer” is one that is engaged in a common undertaking. In imminent danger situations the exposing employer is expected to remove its employees from the job. The correcting employer can be cited if it fails to exercise reasonable care in preventing. § 666 (d) Penalty Factors The OSH Act provides in 29 U. The penalty limits for the different classifications are: Classification Other Than Serious Serious Repeat Willful Unabated Maximum $ 7. by exercising control on the worksite. a controlling employer would need to perform more frequent inspections if the subcontractor had a poor safety history.S. The size of the business. For example. 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.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. The good faith of the employer.000 $70. 4.OSHAGUIDE. and The employer’s history of previous violations. § 666 (a) 29 U.C. § 666 (j) that penalties shall be assessed on the basis of four factors: 1.S. and (3) take reasonable alternative protective measures. as the exposing employer and is responsible for correcting the hazard.000 min. § 666 (c) 29 U. in the absence of a specific contract provision. Control can be established by contract or. The gravity of the violation. such as guardrails. or on the same worksite.C. § 666 (a) 29 U. § 666 (b) 29 U. Controlling Employer: A “controlling employer” is one that has general supervisory authority over the worksite. including the power to correct safety and health hazards. 2.S. A controlling employer can be cited if it fails to exercise reasonable care in preventing and detecting violations on the site.S.S. For example.000 $ 7. discovering and correcting the hazard. a correcting employer might be given responsibility for installing or maintaining safety equipment.C.C. Page 29 .S.000 $70.000 per day OSH Act 29 U.) $ 7. 3.
Medium and Low: High Medium Death. frequency and duration of exposure. chronic. 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 . 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. The severity assessment is ranked High.COM Gravity of the Violation The Compliance Officer makes a “Gravity Based Penalty” (GBP) assessment to determine the amount of the penalty within the maximum and minimum range for each violation classification.. etc. If the employer qualifies for penalty reductions they will be deducted from the GBP to arrive at a final penalty amount. 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. The likelihood of injury or illness is relatively low.OSHAGUIDE. OSHA FIRM § IV-C2-d. limited exposure during the day. 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. Accordingly.e. other pertinent working conditions.” OSHA FIRM § IV-C-2-f-1. limited access to the hazard. the use of personal protective equipment (PPE). proximity of employees to the hazardous conditions. Low Probability: The probability of an injury or illness occurring is categorized either as “greater” or “lesser. whether the employer has a medical surveillance program. OSHA FIRM § IV-C-2-e. irreversible injuries. Injuries and illnesses resulting in hospitalization or a variable but limited period of disability. few employees exposed. Injuries and illnesses not requiring hospitalization and requiring only minor supportive treatment. permanently disabling injuries. Greater Lesser The likelihood of injury or illness is relatively high.g.
§ 666 (j). will arrive at an unadjusted gravity-based penalty (GBP).e.000 to $3.COM Gravity-Based Penalty (GBP) The Compliance Officer. The Table below illustrates: GRAVITY-BASED PENALTY (GBP) TABLE – unadjusted GBP OTHER THAN SERIOUS Probability No Severity Rating Lesser $0 Greater $1. the Compliance Officer then arrives at the final GBP.S.000 or greater GBP of $2. The employer can receive a 25% reduction if it has implemented “an Page 31 .500 $5. after considering severity and probability factors. After deducting adjustments.000 -$7.500 $2.500 $3.000 $2.000 Probability Lesser Greater OSHA defines the “gravity” of a violation by the GBP. Size of the Employer OSHA’s Field Inspection Reference Manual (FIRM) allows penalty reductions based on the size of the employer. High Gravity Moderate Gravity Low Gravity GBP of $5.000 SERIOUS Severity Rating Low Medium High $1. the good faith of the employer and the employer’s history of previous violations.500 $2.C. OSHA FIRM § IV-C-2-i-(5)-(a). reductions) to the unadjusted gravity-based penalty (GBP).000 -$7. Employees 1-25 26-100 101-250 251 or more Percent Reduction 60% 40% 20% None Good Faith Penalty reductions are also allowed based on the Compliance Officer’s determination of the employer’s good faith.500 GBP of $1.500 Penalty Reductions The OSH Act states that other penalty factors to consider are the size of the business. These other factors can result in adjustments (i.OSHAGUIDE.. 29 U. OSHA FIRM § IV-C-2-i-(5)-(b).
Penalties for Repeat of an “Other Than Serious” Violation 1st Repeat 2nd Repeat 3rd Repeat $200 $500 $1. 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.000 ($3. if the GBP for a “Serious” violation found during the current inspection is $3. See GBP Table at Page 30. 5 2nd Repeat GBP x 4 If more deterrence GBPx 10 needed $70. willful or repeated violations in the past three years.000 max. 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.OSHAGUIDE. A 15% reduction is allowed if the employer has a written safety program that is overall effective but has more than just incidental deficiencies. However. History of Previous Violations A 10% reduction is allowed for employers who have not been cited by OSHA for any serious.500 (greater probability – medium severity).000 Page 32 .” OSHA FIRM § IV-C-2-l-(1).” The safety program must be written but in exceptional cases small employers (1-25 employees) can receive a 25% reduction if they have an efficient safety program which has not yet been reduced to writing. 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. Repeat violations are only eligible for a penalty adjustment based on size of the employer.000 max.500 GBP x 4).COM efficient safety and health program” or the safety program “has deficiencies that are only incidental. the penalty for a smaller employer violating the same standard for the third time (2nd repeat) would be $14. OSHA FIRM § IV-C-2-i-(5)-(c). For example.
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.500 However. OSHA FIRM § IV-C-2-m-(1). A citation “item” is listed on the face of the citation for each violation.500 $44. for willful violations.000 or greater GBP of $2. each instance of the violation is still separately set out within that item of the citation.000 $28.000 $56. For Page 33 .COM Penalties for Willful Violations OSHA calculates the penalty of a willful violation based upon the “gravity” of the underlying “Serious” violation.000 minimum penalty. 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. OSHA uses a $25. Good faith adjustments are not allowed at all. History adjustments are at the normal rate.OSHAGUIDE. OSHA uses the $5.000 $25. However.500 GBP of $1.000 Gravity Combining & Grouping Violations Combined or grouped violations are normally considered as one violation and are assessed one gravity-based penalty (GBP).000 Moderate $55.500 $33.000 $42.000 $36.000 Low $40. OSHA FIRM § III-C-5-a. See GBP Table at Page 29. Thus. the adjustments are as follows: Size Adjustment 1-25 employees 26-100 101-250 251 or more Good Faith Adjustment History Adjustment 30% 20% 10% None None 10% For willful “Serious” violations.000 $49.000 $63.000 $49.000 minimum penalty mandated by the OSH Act.000 $32. High Gravity Moderate Gravity Low Gravity GBP of $5. OSHA FIRM § IV-C-2-h.000 $38. Each item on the citation has a corresponding penalty and correction date. size adjustments are at one-half of the normal amount. Id. For willful “Other Than Serious” violations. In practice.000 to $3.
those same mistakes taken together result in the airplane’s crash. However.120 $2. However. Page 34 . violations of different standards. For example. OSHA will fine the employer for each instance of the violation even though they apply to the same standard.” Below the heading will be a paragraph describing the conduct that resulted in the violation.. if those violations all contribute to form a single hazard.g. the Compliance Officer can look at all of the violations collectively to determine the gravity of harm. those five violations will be combined to form a single citation item. In practice. instead of one paragraph below the heading describing the violation. However. Egregious Penalties In egregious cases. The crash might be the result of many small mistakes. grouping usually results in a higher gravity-based penalty (GBP) because it raises the level of probability and/or severity. on the face of the citation there is one heading with a corresponding penalty and correction date. Thus. one for each of the five machines. OSHA FIRM § IV-C-3.00 Correct by 10/15/03. might result in a low severity rating. For example. The egregious penalty structure is the mirror opposite of the penalty procedure for combined violations.500. Below the item heading will be five separate paragraphs.OSHAGUIDE. a single item on a citation might have the heading. if there are five separate violations of the same machine guarding standard (e. five separate machines left unguarded in the same manner).COM example. each of those mistakes would not result in an accident. The item heading on the citation will cite the machine guarding standard only once and there will be one penalty and one correction date. detailing how the guarding standard was violated on that particular machine. “Item 1-1 Failure to Bolt 29 CFR 1926. OSHA FIRM § III-C-5-b. combined violations result in a single citation item (and one penalty) whereas egregious violations result in multiple citation items thereby multiplying the number of penalties. the gravity of harm is much greater when the mistakes are grouped together. there will be multiple paragraphs – one paragraph for each instance of the violation. 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. it is evident that “instance” refers to each time a particular standard is violated. The term “instance” is not defined but when read in context with other provisions of the OSHA FIRM using that term. In both cases the same safety standard is involved. However. The egregious penalty structure is also referred to as “per-instance” or “violation-by-violation” penalties. OSHA FIRM § III-C-5-c-(4). Individually. if taken individually. When multiple violations of the same standard are combined into a single item. Perhaps an analogy would be an airplane crash.
If there were eleven instances. and (2) failure to provide employee training under the asbestos standard to those same eleven employees. or a large number of injuries or illnesses. The egregious penalty structure has come under increased scrutiny because of a relatively recent court decision by the Occupational Safety & Health Review Commission (OSHRC). _____ OSHC _______ (Sept. In the Ho decision. The employer’s conduct taken as a whole amounts to clear bad faith in the performance of his or her duties under the Act. Page 35 . then the total penalty arising from just that one standard would be $770. 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.1 The OSHRC held that “per-instance” penalties on a “per-employee” basis 1 The cited standards were former 29 CFR 1926.5 million dollars.000. 2.000 x 11). OSHA deemed the employer’s conduct egregious and assessed “per-instance” penalties on a “per-employee” basis which resulted in a citation totaling 1. However. 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. 3.000 ($70. 2003). a work-site catastrophe. would normally be combined to form a single citation item with one penalty of $70.1101(h)(1)(i) which pertained to the 11 alleged respirator violations and 29 CFR 1926.” The factors that OSHA examines in determining whether egregious penalties should be applied are found in OSHA Instruction CPL 2. 6. The employer has an extensive history of prior violations of the Act. The employer has intentionally disregarded its safety and health responsibilities. then each instance of the violation will result in a separate citation item. 5. Eric K. Multiple instances of violating the same standard. The violations resulted in persistently high rates of worker injuries or illnesses.1101(k)(9)(i) and (k)(9)(viii) which pertained to the 11 alleged failure to train violations. The violations resulted in worker fatalities. If willful penalties can be called OSHA’s enforcement “hammer” then the egregious penalty structure is OSHA’s “sledge hammer. 4. a willful violation of a particular standard might result in a penalty of $70. Ho.000.COM For example.OSHAGUIDE.80. 29. which provides that the violations under consideration must be willful AND at least one of the following other categories must also apply: 1. if the employer’s conduct is determined to be egregious.
Caterpillar and Hartford Roofing. 15 OSHC 2153 (1993) and Hartford Roofing.” 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.” 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 respirator standard merely stated that the employer shall provide respirators and ensure their use “during all Class 1 asbestos jobs. In determining whether the underlying standards were addressed to employees as a class or individually. Inc. OSHA contended that separate violations occurred “per employee. 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 standards by their plain terms do not provide employers with fair notice that they may be penalized on a per-employee basis. 3. Hartford Roofing held just the opposite and stated. not individually. Caterpillar had nothing to do at all with tying “per-instance” penalties to the alleged egregious conduct of the employer. The OSHRC ruled against “per-employee” penalties for the following reasons: 1.” The other employee training standard did use the phrase “each such employee. In fact. 17 OSHC 1361 (1995). “where a single practice method or condition affects multiple employees. there can be only one violation of the standard. There was no dispute that the employer was what one could only charitably call a “bad actor. we cannot allow harsh facts to result in bad law – a result which would clearly follow should we accept the Secretary’s proposed penalties. The plain language of the respirator and employee training standards addressed employees as a group.” On the other hand. 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.. Page 36 . OSHA was unable to provide a consistent interpretation as to what constituted an individual instance of the violation.” Hartford Roofing was distinguished because it did not support penalties on a per-employee basis.COM were not appropriate in this particular case.. Inc. On the one hand. However. The employer’s conduct was not egregious and penalties were assessed “perinstance” – not “per-employee. The OSHRC distinguished Caterpillar because it was one of the early “per-instance” cases assessing penalties for individual record keeping infractions.OSHAGUIDE. 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.” 2. the OSHRC felt that this was a phrase of “inclusiveness” referring to all employees within the protected class.” However. Thus.
Giving advance notice of an inspection Any person who gives advance notice of an inspection can be fined up to $1. Congress expressly granted to the OSHRC the sole authority to determine penalties. employers are penalized differently for the same violative conduct merely because OSHA determines some of them to be “bad actors.000. Page 37 . CRIMINAL PENALTIES Under the OSH Act. U. On December 8. 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.” [Although not expressly stated by the Commission. However. employers can be criminally prosecuted if they willfully violate a specific safety standard that causes the death of an employee. The OSHRC noted that they were not bound by OSHA’s proposed penalties. proposals by OSHA.000. representations or certifications to OSHA Criminal penalties of $10. imprisonment up to one year. OSHA Administrator John Henshaw issued a statement announcing that OSHA was appealing the Ho decision to the Fifth Circuit. as currently applied. or both. the employer may be liable for a fine of up to $10. Court of Appeals.S.C. per-day basis. or both. can be imposed for knowingly making any false statement. may run afoul of their sense of “equal treatment under the law. imprisoned up to one year.”] 5.C.OSHAGUIDE.S. A second conviction is punishable by a fine of up to $20. employers are also subject to criminal penalties in certain situations. or both. The fines are called “Proposed Penalties” because they are just that. § 666 (e).” The OSH Act imposes criminal liability for each of the following: Willful violation causes the death of an employee If a willful violation causes the death of an employee. False statements. This is commonly referred to as a “criminal willful violation. 29 U. § 666 (f).S. six months in prison.000.COM respiratory protection.000 or six months imprisonment. The OSHRC felt that OSHA’s interpretations conflicted because under the latter interpretation. or both. 29 U. it appears that the egregious policy. General Duty Clause violations are exempt from criminal liability. In the absence of a consistently applied interpretation. OSHA could conceivably cite an employer on a per-employee. 4. Quite the contrary. OSHA was incorrect that the OSHRC must defer to the agency’s decision to prosecute a case on a per-employee basis. 2003.
29 CFR § 1903. 29 U. Sundays and federal holidays. More common is criminal prosecution in States with State Plans.17 (a). The filing is timely if it is postmarked within the 15-day period. The criminal sanctions can double if a dangerous weapon is used. impris0ned up to three years. App.C. The Notice of Contest is submitted to the OSHA Area Director. reversed on other grounds 510 NE2d 1173 (Ill. courts have been rejecting such “preemption” arguments. § 666 (g).g. 29 CFR § 1903. or. 517. Dec. OSHA Compliance Officers) can be fined up to $5. Employers may also be subject to criminal liability under State statutes in addition to the criminal sanctions imposed under the OSH Act. Criminal prosecution under the federal OSH Act is relatively rare but may increase as a result of OSHA’s Enhanced Enforcement Program (EEP). 1987). (3) the penalty amounts. The employer’s written notification is formally called a “Notice of Contest.” The employer has the right to contest the citation if it disagrees with any of the following: (1) the alleged violations.2d 356. 534 NE2d 962 (1989). The term “working days” excludes Saturdays. record.C.. 128 Ill. denied 493 US 809 (1989.21 (c). The citation document is formally called a “Citation and Notification of Penalty.” 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. liability is based on general criminal statutes.OSHAGUIDE. or certification in any application. 29 CFR § 1903. Some employers have argued that the criminal provisions of the OSH Act preempt State criminal statutes. In States which opted out of federal enforcement but do not have approved State Plans. plan or other document required by the OSH Act.S. Page 38 . CONTESTING A CITATION Filing the Notice of Contest If the Compliance Officer observes safety or health violations. or both. cert. described more fully in the prior section of the manual discussing EEPs. The employer must give OSHA written notice that it disagrees with the citation.COM representation. In States with federally approved State Plans prosecutors enforce the criminal sanctions of those plans. § 659 (a) . A civil monetary penalty for each of the violations will also likely be assessed. However. a citation will be issued setting dates of correction for each of the violations.17 (a). 126 Ill.000. (2) the abatement period. Chicago Magnet Wire Corp. 29 U. See Illinois v.S. Forcibly Resisting or Assaulting a Compliance Officer Any person who forcibly resists or assaults Department of Labor personnel (e.
§ 659(b). the employer can request an informal conference with OSHA. Thus. proposed penalties. it can use the informal conference to extend the abatement dates. general contest language is. A better practice is to send the Notice of Contest by certified mail.COM Regular first-class mail is sufficient for filing. However.. However. Thus. To facilitate settlement. 29 CFR § 1903. many employers favor broadly worded Notices of Contest. OSHA will hold the informal conference before the expiration of the 15working-day contest period.15 (a). Employers also will sometimes request that a general violation be reclassified as a specific violation. If the citation is contested.” 29 U. The request should be submitted to the OSHA Area Director.)” 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.17 (a).C. Failure to contest part of citation can be considered a waiver of any defenses to that portion of the citation. 29 CFR § 1903. and to correct errors contained in the citation. abatement period. citations. Informal Conference After receiving the citation. abatement dates. return receipt requested. and/or proposed penalties. “(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. An example of broad. The informal conference will not stay the 15-working-day period in which to file a Notice of Contest. 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.18 (a). most notably California.OSHAGUIDE. 1903. However.S. do not accept broad contest language. employers will often present mitigating factual information that was not brought to light or focused on during the inspection. Case Referral & Pleadings Page 39 . it must clearly identify the employer’s basis for filing the Notice of Contest – i.e. If the employer concedes that the violations occurred. This is because a general violation is more subject to providing the foundation for a repeat violation. The written Notice of Contest does not need to be in any particular format. The primary purpose of the informal conference is to discuss the alleged violations. most employers use the informal conference to negotiate an informal settlement agreement with OSHA. whether the employer disagrees with the citation. 29 CFR §§ 1903. Even so.20. 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.
60. will refer the case to the Occupational Safety Health & Review Commission (OSHRC). 29 CFR § 2200. 29 CFR § 2200. the parties can sometimes accomplish much the same purpose by requesting a pre-hearing conference with the ALJ. 29 CFR § 2200. Employers can represent themselves or be represented by attorneys. employee misconduct. Rulings concerning the admission of evidence and on submitted motions can seriously affect the outcome of a particular case.34 (b)(3).51 (b). This document advises the parties of the hearing date. The complaint sets forth the alleged violations and the rationale behind the abatement period and penalty amounts.34 (b)(1). time and location. In the absence of OSHRC rules. The employer’s answer is a plain statement denying all allegations in the complaint that it wishes to contest. 29 U. Accordingly. 29 CFR § 2200. The OSHRC is an independent agency not affiliated with OSHA or the Department of Labor. The parties are entitled to 30 days advance notice of any hearing.COM The OSHA Area Director within 15 days of receiving the Notice of Contest.. It provides the initial forum for hearing contested cases under the OSH Act. litigation of contested citations is becoming increasingly complex and hearings are conducted pursuant to the procedural rules set forth by the OSHRC. § 661 (f). etc.34 (a).C. There is no formal mediation under the OSH Act or the procedural rules of the OSHRC.e.34 (b)(2). OSHA must file a complaint with the OSHRC.33. 29 CFR § 2200.2. 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. A few weeks following the answer.OSHAGUIDE.g. Attorneys represent OSHA. the Federal Rules of Evidence apply. However.34 (a)(2). At hearing. However. It also gives the parties instructions for the conduct of the hearing including the exchange of evidence.S. The employer’s answer must also include any affirmative defenses that it wishes to raise. The employer has the burden of proving any Page 40 . Within 20 days of receiving the Notice of Contest. 29 CFR § 2200. The employer must file a written answer within 20 days of being served with OSHA’s complaint. or the citation involves a serious injury or willful violation. the ALJ will mail the parties a Notice of Hearing and Instructions. Legal representation is especially advisable if the employer has a problem with repeat violations. 29 CFR § 2200. greater hazard. etc. 29 CFR § 2200. OSHA has the burden of proving each of the elements of the violations listed in the citation. Employers and employees both have the right to participate in the hearing. 29 CFR § 2200. 29 CFR § 2200. the employer might wish to have an attorney present to ensure a level playing field. Hearing Procedure The OSHRC assigns the case to an Administrative Law Judge (ALJ) who schedule and preside at the hearing. The OSHRC encourages settlement at this level.34 (b)(4).
29 CFR § 2200. Relatively few citation items.69. Such cases generally include one or more of the following characteristics: 1.66. § 660 (a). To be eligible. The ALJ’s decision is contrary to law. Hearing expected to take less than two days. § 661 (j).90. No fatality.C. 29 CFR § 2200. Proposed penalty less than $10. 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. introduce evidence and conduct cross-examination. The parties can file written briefs with the ALJ and request transcripts of the hearing to facilitate preparation of the briefs. The ALJ can recommend that the citation items and/or penalties be affirmed.S.S. 29 U. The ALJ made findings of fact not supported by a preponderance of the evidence. 5. E-Z Trial In 1995. 4. After considering the evidence. modified or eliminated.COM affirmative defenses. it has 60 days to appeal the order to the appropriate U.C. 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. 2. 29 CFR § 2200. The party with the burden of proof must establish the fact by a “preponderance of evidence” (more probable than not). Circuit Court of Appeals. 3. or 4.91. the ALJ makes a recommended decision that is transmitted to the parties. Page 41 . The employer can also file a Petition for Discretionary Review by the OSHRC.OSHAGUIDE. No willful or repeat violations.200 (a). policy or abuse of discretion is involved. A substantial question of law. 3.000. 29 CFR § 2200. The grounds for review are as follows: 1. A prejudicial error was committed. Each of the parties can call witnesses. The OSHRC then has 30 days to adopt the ALJ’s decision or recommend review by the full Commission. 2. Its purpose is to provide a simpler and less expensive method of resolving less complex contested citations. the OSHRC introduced the E-Z Trial procedure. 29 CFR § 2200. If the employer disagrees with the final order.S. The ALJ’s recommended decision is also filed with the OSHRC.91 (b). cases must not involve complex factual or legal issues. 29 U.
1997). Applicability of the Standard & Non-compliance Applicability of the Standard: OSHA must show that the cited standard is applicable. and employer knowledge. OSHRC. the most effective defense is to demonstrate that OSHA failed to produce sufficient evidence of one or more of the elements -. Precision Concrete Construcion. the employer knew. OSHA provides employer with documents early in the proceeding. 19 OSHC 1404 (2001). A Compliance Page 42 . 2. v. Saugus Construction Corp. or with reasonable diligence should have known. non-compliance with the standard. R. the cited standard applies. by OSHA. 1998).. . 1982). 4. v. 2001). This is understandable because the rules are vast and cover several industries and innumerable processes.e. Oral arguments instead of written briefs.3d 691 (2d Cir.OSHAGUIDE. 19 OSHC 1431 (2001). they are elements that OSHA must prove to establish a violation.3d 122 (4th Cir. affirmed in part 681 F. Federal Rules of Evidence do not apply. applicability of the standard. EMPLOYER DEFENSES Attacking OSHA’s Burden of Proof The best defense is a weak offense .COM E-Z Trial procedures are simplified in a number of ways: Complaints and answers are not required.P.2d 69 (1st Cir. Collins Construction Co. v.i. 117 F. 255 F. Astra Pharmaceutical Products. Inc. Carbone Construction Co. Secretary of Labor. of the hazardous condition. 166 F. Thus. D. employee exposure to the hazard. employees were exposed or had access to the hazard. Rather. the employer failed to comply with the cited standard.. . and. Inc.A.. OSHRC.. OSHA must prove the following elements by a preponderance of the evidence to establish a violation: 1. 3. ALJ usually issues decision from the bench. The above items are not “defenses” that the employer has to prove. N & N Contractors. Hearings are less formal. There are times when the Compliance Officer may not properly understand the applicable rules. 9 OSHC 2126 (1981). Discovery is not permitted except as ordered by the ALJ.3d 815 (6th Cir.
Some Compliance Officers may have prior experience in private industry but not usually to the extent that their testimony would be considered “expert testimony.. S&G Packaging Co.). In other words. Likewise. The Compliance Officer often has less comparative expertise than the employer expert in the employer’s particular field. this is their business. the employer can often use expert testimony to its advantage. However. this becomes a “battle of the experts” between the Compliance Officer and the employer expert.g. OSHA generally relies on testimony from the Compliance Officer and the officer’s inspection report to establish its case. Lack of employee exposure can sometimes be established by showing that employees did Page 43 . Errors in the inspection report will sometimes establish that the employer was actually in compliance with the standard. employer experts might show that OSHA interpreted the standard incorrectly. Accordingly. After all. etc. 19 OHSC 1305 (2000). An employer expert can sometimes show that the cited standard did not apply. 255 F. experts can explain that the employer was in compliance given a correct interpretation of the standard. N&N Contractors. the employer will often have several experts within it’s own company (e. D. Early federal cases held that in order for employee exposure to exist there must be direct physical endangerment . Employee Exposure Traditionally. Non-compliance with the Standard: Employer experts can sometimes show that. the zone of danger. The more recent trend is that OSHA need only show that it is “reasonably predictable” that employees have contacted. lack of employee access still bears on whether exposure was reasonably predictable. 2001). There are also situations where non-compliance is based on faulty factual information. evidence that the employee was actually in the “zone of danger. even if the standard applied. Essentially.” The early cases often focused on “employee access” to the area and the boundaries of the danger zone. There have been instances where machines were misidentified. “potential” exposure is gaining more acceptance.e. certified safety professionals. Inc. The inspection report often contains employee statements paraphrased in written notes by the Compliance Officer. Construction Co. etc. training dates omitted. or will contact. OSHRC.OSHAGUIDE. v.T. it was not actually violated.COM Officer is by nature a generalist and cannot be expected to be an expert in all fields. Thus. experts can demonstrate that the employer was actually in compliance given the employer’s particular set of circumstances.. Accordingly. licensed engineers. the issue has been whether OSHA must show “actual” employee exposure versus “potential” employee exposure.. the paraphrased statements might be inaccurate or incomplete. For example. Even so. 19 OSHC 1503 (2001).3d 122 (4th Cir.i. it is always recommended that the employer review the inspection report with the employees interviewed by OSHA to check for errors.” On the other hand.
29 U. employer knowledge defenses generally only succeed if the lack of knowledge was reasonable. Ingram Plastering Co. In other words. The employer knowledge requirement does not refer to employer knowledge of the applicable safety codes. An employer cannot defeat the knowledge requirement by being willfully ignorant of his surroundings. the employer must show that it conducted adequate safety inspections but still failed to discover the violative condition. 29 CFR § 2200. N & N Contractors Inc. of the violative condition. the issue is whether the employer had knowledge. 295 F.73 (a)..S. Fluor Daniel v.. of the violative condition. or with the exercise of reasonable diligence should have known. 19 OSHC 1503 (2001). If he knew of the condition he had knowledge.3d 1232 (11th Cir. etc.OSHAGUIDE. Ragnar Benson Inc. or constructive knowledge. 19 OSHC 1015 (2000). Rather. Procedural Defenses Defective Inspection OSHA must follow certain procedures when it performs an inspection. S&G Packaging Co. Accordingly. 18 OSHC 1937 (1999). OSHRC.. The courts have been rejecting such arguments. Employer Knowledge OSHA must prove that the employer knew. The constructive knowledge problem presents something of a “Catch-22” for the employer. Trinity Marine Nashville Inc. OSHA then has the burden of showing that the employer’s failure to discover the condition was due to a lack of reasonable diligence. warning signs. 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. 19 OSHC 2001 (2002). 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. OSHA led the employer “down the garden path” by letting it believe that it was in compliance. Procedural arguments usually fail unless OSHA did Page 44 . Thus. 18 OSHC 2121 (2000). § 666 (k). barriers. See also Secretary of Labor v. If he did not know of the condition he may come across as uninvolved or exhibiting a failure to train and supervise.C. The lack of employer knowledge can sometimes be established if the employer (including supervisory staff) were unaware of the hazard. In this situation.COM not have access to the area of the alleged hazard because it was protected by guards... an employer will be presumed to have “constructive knowledge” if the condition could have been discovered with reasonable diligence. 2002). 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.
operator. a.” 29 U. Early cases focused on whether the employer’s right of accompaniment. Steel Corp.a. the presentation of OSHA credentials is similar to a police officer “flashing his badge” to prove his identity. & I.” were mandatory or optional. further. supra. Inc. [See this manual’s prior discussion of privacy interests in the section “Warrant Exceptions.C. 553 F. Drum Construction Co.F. § 657 (a).. Thus.COM not substantially comply with procedural requirements and. OSHA contends that such inspections are permissible because the Compliance Officer presented credentials to the “agent in charge of the workplace.S. The Compliance Officer then “grabs” a foreman and conducts the inspection anyway.C. OSHRC. Some employers have argued that an improper inspection resulted if the Compliance Officer presented credentials to the wrong person. v. denied 425 U.k..”] Impairing the Employer’s Walkaround Rights: The OSH Act provides that an employer representative “shall be given an opportunity to accompany” the Compliance Officer during the inspection “for the purpose of aiding such inspection.2d 828 (5th Cir. the Compliance Officer substantially complied with the credentials requirement. because there is no right to privacy if the violations occurred in public or in plain view of the Compliance Officer. 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. This issue most often arises in cases where the premises owner and/or senior management officials are absent from the workplace. Upon arrival.2d 809 (10th Cir. an employer could conceivably argue that there was no substantial compliance if credentials were presented well after the inspection began. OSHRC. § 657 (a). 576 F.. “walkaround rights. 18 OSHC 1927 (1999). 1975) cert.S.S.” 29 U. 1977) (foreman was deemed agent in charge).. Inc.. the Fourth Amendment right to privacy must apply. C. 516 F. the courts will examine whether this failure resulted in substantial prejudice to the employer. In practice. Inc.S. Inspections are still proper.C. Accu-Namics. The courts never reached a clear consensus on this Page 45 . The OSHRC has held that.. Inc. 1 OSHC 1751 (1974).OSHAGUIDE. A similar issue involves the late presentation of credentials after the beginning of the inspection. the Compliance Officer will present his or her “credentials” which usually consists of an official badge or OSHA identification card. Accu-Namics. If no credentials were presented at all. In order for prejudice to occur.” 29 U. OSHA’s failure to comply prejudiced the employer. § 657 (e). Marshall v. Accu-Namics. despite the failure to present credentials.2d 357 (4th Cir. 903 (1976). although the presentation occurred one hour after the inspection began. v. 1978) (most “senior employee” left at the site deemed agent in charge). Dorey Electric Co. Improper Presentation of Credentials: The OSH Act conditions an inspection upon the proper presentation of credentials to the “owner. or agent in charge of the workplace.
1 OSHC 1751 (1974).. 1975) cert. 7 OSHC 2232 (1979). Conversely. For example it may be the case that.2d 371 (7th Cir. Instead.. Likewise.” 29 U. OSHRC. 516 F. Accu-Namics. Even so. Thomas A. Secretary of Labor v. even though a hazard existed. v. Accu-Namics. Inc. Thus. Accordingly. Chicago Bridge & Iron Co.. 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. 1977). employees did not have access to the hazard during the six-month period. C. One court also has held that there is no prejudice if the employer can present the same mitigating factual information at the hearing. There also would be no prejudice if the employer affirmatively waived its walkaround rights by declining to participate in the inspection. therefore. the Compliance Officer took photographs from the parking lot before presenting himself to the company office. unable to assert its walkaround rights and present mitigating information.S.OSHAGUIDE. 535 F. 560 F.2d 947 (8th Cir. Presumably.. v. Wylie Construction Co. Defective Citation Late Citation – Statute of Limitations: A citation cannot be issued more than “six months following the occurrence of any violation.C.2d 828 (5th Cir.S. the emphasis shifted to whether there was substantial compliance by OSHA and whether the employer was prejudiced. 903 (1976). v. It appears that the most common method of computing the six-month period is to count forward from the date of the inspection. prejudice would occur if the employer was unaware of the inspection and. Marshall v. a longstanding violation can be cited as long as employees were exposed to the hazard in the six months preceding the citation. there would be no prejudice if the employer constructively waived its walkaround rights. 1976). On the other hand. Inc. there was no mitigating information that could explain away the photographs. In one recent case. 1976). In practice. Prejudice is normally considered the employer’s opportunity to present mitigating factual information during the inspection. Apparently. the employer would be unlikely to prevail if OSHA’s refusal was based on lack of cooperation or obstruction of the inspection. denied 425 U. OSHRC. 19 OSHC 2060 (2002). Galante & Sons. General Electric Co. the six-month period generally begins to run on the day that the Page 46 . OSHRC.COM issue. A constructive waiver would occur if the employer was aware of the inspection but refused to cooperate or participate in the inspection. the cases also suggest that the employer would be prejudiced if OSHA refused the employer’s request to participate in the inspection.2d 67 (2nd Cir. the lack of employer prejudice appears to outweigh the Compliance Officer’s failure to substantially comply with inspection procedures. However. It is insufficient for the Compliance Officer merely to surmise that employees were “probably” exposed to the hazard.E. The OSHRC rejected the employer’s argument that its walkaround rights were violated on the grounds that the employer was not prejudiced.. 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. 540 F. § 658 (c). Western Waterproofing Co. Inc. Id.
18 OSHC 1323 (1998). Citing the standard and providing a description of the violation also provides the employer with sufficient information for abatement.. Alden Leeds.W. § 658 (a).” 29 U. Harrison Lumber Co.S. standard.3d 256 (3d Cir. Similarly. 801 F. Lack of Particularity – Citation Too Vague: The citation must “describe with particularity the nature of the violation. Rather..2d 926 (7th Cir.C. regulation. In this situation. rule. Employee Misconduct The most frequently used and. B. 2002).. Compliance increases the hazard. Employers should be aware that the six-month “statute of limitations” for citations does not apply to criminal violations of the OSH Act. In short. or order alleged to have been violated. 1978). the citation must reference the safety standard and describe how the standard was violated. Implementing the safety standard is not feasible.C. v.E. The Page 47 . 18 U. In other words. Affirmative Defenses An “Affirmative Defense” means that the employer has the burden of proof. including a reference to the provision of the Act. the employer has the burden of proving the following affirmative defenses: 1. Accordingly. the criminal statute of limitations applies which is usually the five-year statute of limitations for federal non-capital crimes.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. Dow Chemical U. More specific safety standards apply.. 3. The employer must show prejudice to assert the “lack of particularity” defense. perhaps. 1986). hampered the employer’s ability to prepare a defense. OSHRC. therefore. 298 F.” etc.S. § 3238. “prejudice” would mean that the citation was too vague and. Brock v. the citation must describe the hazardous condition sufficiently enough to put the employer on notice of what must be corrected. 4. This satisfies the due process requirement that the employer have fair notice of the alleged violations so that it can prepare an adequate defense. See Marshall v. Inc.” This defense also goes by several other names such as “Unpreventable Employee Misconduct. 2. L. 569 F..S. The violation is the result of employee misconduct.A.2d 1303 (5th Cir.” “Isolated Incident Defense.OSHAGUIDE. and. Meyers Co. L & B Products Corp. 3 OSHC 1026 (1975). the strongest affirmative defense is “Employee Misconduct. an employer also might be able to argue “lack of particularity” in the original citation in a subsequent citation for failure to abate.
599 F.. cannot erect guards because of limited work space. D. 7 OSHC 1477 (1979). 1997).2d 453 (1st Cir. The defense fails if compliance is possible. As a result. Raytheon Constructors. The first reason is that supervisor misconduct can be evidence that the employer’s safety program was not effective or adequately enforced.. Pride Oil Well Serv. “Economic Infeasibility” means that the cost of compliance would be prohibitive. Jensen Construction Co. There are three types of infeasibility. General Dynamics Corp.. There are two reasons for this.OSHAGUIDE. Inc. The second reason is that the actions of the supervisor are often imputed to the employer. some employers have argued that the disobedient supervisor was actually an employee in order to take advantage of the employee misconduct defense. “Technological Infeasibility” means that it is technologically impossible to make a machine or process comply with current standards. 15 OSHC 1809 (1992). The net effect is that employers face greater liability for supervisory misconduct.g. v.. 19 OSHC 1311 (2000).COM essence of this affirmative defense is that the employee violated company safety policies and that such conduct was not preventable.2d 1135 (8th Cir.3d 691 (2nd Cir.. To establish an employee misconduct defense..A. 1997). v. CMC Electric. OSHRC. Stevedoring Services of America. Secretary of Labor. E&R Erectors. the employer must prove: (1) it had work rules designed to prevent such conduct. DunPar Engineered Form Co. v. OSHRC. It is not enough that the employer has a safety program written on paper. 19 OHSC 1653 (2001). Brock v. 107 F. Infeasibility/Impossibility This defense requires the employer to prove that compliance with the standard is not feasible.3d 861 (6th Cir. Inc. and (4) the work rules were adequately enforced when they were violated.. 1997). 2000). (2) the work rules were effectively communicated to the employees. Reynolds Inc. There must be some evidence that the employer actually enforced the safety program when it was violated.e. (3) the employer took steps to discover violations of the work rules. of Leesville. P.3d 100 (1st Cir. 18 OSHC 1815 (1999). 1 OSHC 1412 (1973). Secretary of Labor. Infeasibility/impossibility is a tough burden for the employer to meet.3d 157 (3rd Cir. Inc. Inc. 1988). OSHA. George Campbell Painting Corp. 221 F. this means that the employer’s safety program goes on trial. Collins Construction Co. 115 F. 843 F. Supervisor Misconduct: A supervisor’s misconduct will very rarely shield the employer from safety violations. 18 OHSC 1929 (1999). v. Southern Soya Corp. In practice.. v. “Practical Infeasibility” means that compliance would not be practical because it would be impossible to perform the work . Gioioso & Sons. 117 F. 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. 1979). Similarly. mere inconvenience or added Page 48 .
S. USPS. It is expected that OSHA’s enforcement powers will continue to expand in relation to the federal government. 1994).S.2d 1327 (6th Cir.OSHAGUIDE. 534 U. 1994). These “Memoranda of Understanding” can be viewed on OSHA’s website. v. Postal Service pursuant to the Postal Employees Safety Enhancement Act of 1998. The U. Mallard Bay Drilling. OSHA now has jurisdiction over all military facilities in the state of New Mexico. & Others Early on.3d 666 (7th Cir.3d 938 (9th Cir. Army. OSHA also has jurisdiction over the U. OSHA v. v. 31 F.. employers may have a defense if they reasonably believed that other federal regulation applied. Marshall. v. Herman. OSHRC.” Even if preemption does not apply. 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. OSHA even issued a citation to West Point – the military academy for the U.C. Pennsuco Cement & Aggregates. the employer must establish that there are no alternative means of employee protection and that a variance application was inappropriate or rejected.S. However.COM expense is not sufficient.. Inc. v. 738 (2002) (Coast Guard general marine safety regulations did not preempt OSHA standards). 29 U. Page 49 . Greater Hazard This defense requires the employer to prove that compliance would be more hazardous than noncompliance. Caterpillar Inc.Ct. OSHA and several units of the federal government developed an “understanding” concerning those areas over which OSHA would have jurisdiction.C. Loomis Cabinet Co. 585 F. Bancker Construction Corp. OSHA does not have jurisdiction where the federal government has maintained control over employee safety and conditions. In that case. Chao v. Thus.S. In areas where no federal standards exist. For example. despite these memoranda of understanding.. Reich. § 653 (b)(1).3d 32 (2nd Cir. Diebold Inc. In addition to proving the greater hazard.S. Preemption by Another Federal Agency A citation may also be invalid because OSHA does not have jurisdiction over the employer. 122 S. OSHA can enforce its own safety standards. U. the employer is subject to safety and health regulations promulgated by the other federal agency instead of OSHA.S. Dole v. 1997). 8 OSHC 1378 (1980). Inc. it appears that federal agency preemption only applies where federal agency standards and OSHA standards address the same conditions. 235. 20 F. 131 F. the general trend has been for OSHA to assume more control over occupational safety and health. 1978). Williams Enterprises Inc.2d 186 (D. 876 F. The court will also examine the degree to which the federal agency actually exercises its authority over safety and health. This is known as “preemption. Military. 1989). Cir.
“Merit” level participants are evaluated every 18 months. complaints.OSHAGUIDE. as well as limited assistance away from the worksite.. will still be investigated in the usual manner.COM LOSS PREVENTION SERVICES If the employer wishes to take some precautionary measures prior to an inspection. etc. or 2 years upon renewal. OSHA will offer ways to upgrade the employer’s programs and will make periodic visits to monitor the employer’s progress. etc. 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. accidents. complaints. accidents. OSHA’s Consultation Service “OSHA’s consultation service provides free. 2002). OSHA consultation assistance will not provide the employer’s name or workplace information to OSHA enforcement. Employers may also receive training and education services. onsite assistance in developing and implementing effective workplace safety and health management systems. The employer’s only obligation is to correct all identified serious hazards within the agreed upon correction time frame. 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.” 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. 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. One of the advantages is that VPP participants are exempt from routine programmed inspections during the period of their participation. “Star” level participants are evaluated every 3 to 5 years. Page 50 . SHARP Program OSHA’s Safety and Health Achievement Recognition Program (SHARP) is basically a more extensive long-term version of the VPP program. “Demonstration” level participants are evaluated annually.. The program is more demanding but in exchange the employer is granted deferral from all programmed inspections for a period of 1 year initially.” “Consultation assistance is available to small employers (with fewer than 250 employees at a fixed site and no more than 500 corporatewide). Of course. there are a number of services provided: Services Provided by OSHA * The following quoted information is taken directly from OSHA Publication 3000 (Rev. will still be investigated in the usual manner. Again.
Comprehensive OSPP’s concentrate on establishing comprehensive safety programs at partnering worksites. etc. and government to foster improvements in workplace safety and health. employee representatives. Page 51 . cooperative relationships between OSHA. Limited OSPP’s focus on specific safety and health issues. employers. and others such as trade unions.” There are two types of OSPP’s: Comprehensive and Limited.OSHAGUIDE. Independent Safety Consultants Independent safety consultants are also a good resource. These partnerships are voluntary. Of course. universities and other government agencies. OSPP’s are the newest of OSHA’s cooperative programs. Loss Control Consultants should be contacted in the event of an inspection. management. Since OSPP membership is corporate. They are often used in cases requiring more in-depth assistance than can be provided with workers’ compensation loss prevention services. Again. trade and professional associations. there is no exemption from inspections for partnering worksites. Loss Control Consultants are a good resource and can assist the employer in developing and implementing the required safety programs. this type of specialized help does not come free but it is very often well worth the cost. The benefit is combining resources and knowledge within the group to reduce injuries. Services Provided by Others Workers’ Compensation Carriers In some States the employer’s workers’ compensation carrier is required to provide free loss prevention services. in some States. rather than individual. These services are implemented by the carrier’s Loss Control Consultant. this is at no cost to the employer. 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. They keep a log of their contact with the employer and such information can be useful if an inspection occurs. lower workers’ compensation premiums.COM OSHA’s Strategic Partnership Program (OSPP) “OSHA Strategic Partnerships are alliances among labor.
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. Answer .An inspection following the citation to verify abatement of the violations listed in the citation.The manager.A defense in which the employer has the burden of proof. This should be filed as soon as the employer becomes aware of an affirmative defense. record. Affirmative Defense . the employer must notify OSHA that the hazard has been corrected or “abated. or certification in any application. Amended Citation . foreperson or other person in charge or control of all or part of the place of employment. ALJ decisions are reviewed by OSHRC which either adopts the ALJ’s opinion or issues a decision of its own.34 (b)(1). Amendments are liberally granted.A Notice of Contest that is amended by the employer.000 per day for each day past the correction dates set forth in the citation. Amended Notice of Contest .. 29 U. unscheduled) inspection made to determine the cause of an accident.000 or six months imprisonment.OSHA now requires that the employer submit written Abatement Certification to the OSHA Area Director as proof of abatement.An unprogrammed (i.A citation changed by OSHA.The employer must file a written answer within 20 days of being served with OSHA’s complaint. However. 29 CFR § 2200. Criminal penalties of $10. plan or other document required by the OSH Act.” OSHA has the option of doing a follow-up inspection to assure that the hazard was corrected.e. The employer’s answer is a plain statement denying all allegations in the complaint that it Page 52 . Thus.C.OSHAGUIDE. § 666 (g).S. Administrative Law Judge (ALJ) . Abatement Certification .COM GLOSSARY Abatement . superintendent. Penalties for failure to abate (or “nonabatement”) can be as high as $7. representation. After the citation. or both. usually to assert an affirmative defense. Abatement Inspection .The Occupational Safety & Health Review Commission (OSHRC) official who initially decides a contested citation hearing. Agent of the Employer .The OSHA term for correction of the violation. Accident Investigation . This person can consent on the employer’s behalf to a warrantless inspection or be the employer representative during an inspection. can be imposed for knowingly making any false statement. the employer should exercise extreme care when completing abatement certification documents.
The Compliance Officer will advise the employer about the specifics of the citation and other related matters. Combined Violation . The complainant’s identity will be kept confidential if the complainant so requested. OSHA always has the burden of proof in establishing a violation. 29 CFR § 2200. Appeal . and it is Page 53 .The conference between the Compliance Officer and the employer conducted after the inspection process is completed.The document issued by OSHA after the inspection to cite violations.34 (b)(2). Circuit Court – One of the terms used to refer to the United States Courts of Appeal. Notice of Contest) within 15 days of its receipt of the citation. 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. If the complainant did not request confidentiality. employee misconduct. 29 CFR § 2200. The employer must file the appeal letter (i. etc.com to obtain contact information for all OSHA Area Offices. seven machines in violation of the same machine-guarding standard would result in only one violation of that standard.g.oshaguide. 29 CFR § 2200. the standard is the “preponderance of the evidence” (more probable than not). 2nd Circuit. Complaint . Burden of Proof . Civil Penalties . Supreme Court. You can go to the “OSHA Links” page at www. Courts of Appeal are divided into 12 federal circuits – 1st Circuit. greater hazard. The employer has the burden of proof when it is asserting an affirmative defense.The monetary fines assessed by OSHA for safety violations.OSHAGUIDE. For example. Citation . result in an inspection. The term “Circuit Court” is sometimes used because the U. In the case of a contested citation.S. It is more formally called a “Citation and Notification of Penalty.This refers to the OSHA practice of combining multiple violations of the same standard into a single violation..” The citation will usually include penalty amounts and set correction dates for the violations.e.34 (b)(3). The employer’s answer must also include any affirmative defenses that it wishes to raise.Another term for contesting a citation.S. Such information may.Information received by OSHA that a safety standard is being violated. The circuit courts are the forum for contested citations on appeal from the Occupational Safety & Health Review Commission (OSHRC). and usually does.COM wishes to contest.34 (b)(4).The legal standard for weighing the evidence. etc. Area Director – The Director of an OSHA Area Office. An OSHA Area Office is located in most States. Closing Conference . Circuit court decisions that are appealed go to the U.e.
COM disclosed that an employee made the complaint. Page 54 . etc. The circuit courts are the forum for contested citations on appeal from the Occupational Safety & Health Review Commission (OSHRC).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. Correction Order – A seldom-used term to refer to a citation. The consultation will not directly result in a citation or civil penalty. Compliance Officer (CSHO) . Complaint Inspection .Penalties resulting in imprisonment or criminal monetary fines under the Occupational Safety & Health Act. the employer must remember that it is unlawful employment practice to discriminate against an employee for making a complaint. The term “Circuit Court” is also used because the U. etc. Contested Case . Several States also impose separate criminal penalties under State statutes addressing occupational safety and health.The OSHA employee who conducts the inspection. To prevail. machine guarding.001).An unprogrammed inspection made in response to a complaint. It often bears a photograph of the Compliance Officer. Those standards are found in the Congressional Federal Register (C.OSHA can create and adopt specific safety standards regulating work practices and processes such as fall protection.A procedural defense available to the employer when the citation does not comply with statutory or administrative rule requirements.The Compliance Officer’s official OSHA identification card. Circuit court decisions that are appealed go to the U. This term is sometimes used because the citation requires abatement of the violations and contains correction dates for abatement. Defective Citation . of the citation. the employer must usually show that OSHA failed to substantially comply with the regulation AND that OSHA’s failure to comply prejudiced the employer.F. Courts of Appeal are divided into 12 federal circuits – 1st Circuit. Credentials . 2nd Circuit. The Compliance Officer must show his credentials to an owner.” Congressional Federal Register (CFR) . Court of Appeals . Consultation Service . Supreme Court. supervisor. more formally called a “Compliance Safety & Health Officer” or “CSHO.The term used to refer to the employer’s appeal.One of the terms used to refer to the United States Courts of Appeal. Criminal Penalties .) and are referred to by their federal CFR number (e. or “contest”. 29 CFR 1910.R.S.S.OSHAGUIDE. or agent in charge before conducting the inspection.g.
Due Process .A de minimus violation is one where a standard is technically violated but it has no direct or immediate relationship to safety or health.S.C.A procedural defense available to the employer when the inspection does not comply with statutory or administrative rule requirements. § 658 (a). If a willful violation is deemed to be egregious then each instance of the violation can be cited separately. it means that an OSHA standard must be specific enough so that a reasonable person would be put on notice of its requirements. 29 U. and (4) the work rules were adequately enforced when they were violated.Generally. (3) the employer took steps to discover violations of the work rules. (2) the work rules were effectively communicated to the employees. Egregious Penalty Structure . To prevail. Emphasis Inspection . the employer must prove: (1) it had work rules designed to prevent such conduct. Similarly.COM Defective Inspection . In the OSHA context.A person designated by the employees to be their representative. Employee Misconduct Defense . Employee Representative .The broad category of persons subject to regulation under the OSH Act.The broad category of persons afforded protection under the OSH Act.OSHAGUIDE. a citation must be specific enough so that a reasonable person would know the manner in which the standards were allegedly violated. The employee representative has the right to participate in the opening conference. the closing conference and the inspection. To establish an employee misconduct defense. This category includes most private and public employees. 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.A penalty structure developed by OSHA to address extreme cases of willful violations. the employer must usually show that OSHA failed to substantially comply with the regulation AND that OSHA’s failure to comply prejudiced the employer.A programmed comprehensive inspection triggered by a local or national Emphasis Program. Employer . Page 55 . OSHA will examine several factors to determine whether a willful violation was also egregious. . De Minimus Violation . The net result is that the total penalty amount of the citation is significantly increased. Employee . Emphasis Program .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. No penalty is assessed because the violation is determined to be rather trivial.An affirmative defense available to the employer.
Federal Rules of Evidence do not apply. Gravity Based Penalty (GBP) . Fixed Place of Employment . To be eligible.S. General Duty Clause . the closing conference and the inspection. It can also be the person in charge at the time of the inspection. probability and severity assessments. 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. The employer representative can request a warrant or consent to a warrantless inspection. OSHA will cite the employer for violations of the general duty clause when hazards exist that are not covered by specific standards. Field Notes .COM Employer Representative . and other related matters. the OSHRC introduced the E-Z Trial procedure which is a simpler and less expensive method of resolving contested citations. (See “Agent of the Employer” above). ALJ usually issues decision from the bench. OSHA uses the general duty clause as a “catch-all” provision.An employer facility at one general location. Field Inspection Reference Manual (FIRM) . OSHA FIRM § IV-C-2-d.A work accident resulting in an employee’s death.OSHA’s internal resource manual that instructs Compliance Officers on inspection procedures. 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. If the employer qualifies for Page 56 .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.C.OSHAGUIDE. cases must not involve complex factual or legal issues and the proposed penalty must be less than $10. a very long-term construction site could be considered a fixed place of employment. IN some cases. This is known as the “General Duty Clause” which provides: “Each employer . 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. .” 29 U. E-Z Trial procedures are simplified in a number of ways: Complaints and answers are not required.In 1995. Fatality . Hearings are less formal. 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.000.A person designated by the employer to be its representative when dealing with OSHA. E-Z Trial .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. . The employer representative also has the right to be present at the opening conference. § 654 (a)(1).
The representative from the employer’s workers compensation carrier who assists the employer in developing and implementing safety programs and policies.This is also referred to as the “OSHA Poster” or the “Safety Poster.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. technological or economic considerations. The employer must prove the compliance is virtually impossible due to practical.S. that the employees were protected by alternative measures and that a variance application was futile or denied. Late Citation . practice or act that could result in an injury to illness to the employee.An affirmative defense available to the employer. Page 57 .A condition. Grouped Violation .” 29 U.COM penalty reductions they will be deducted from the GBP to arrive at a final penalty amount. The goal is to discuss the citation. identified by SIC code.A conference between the employer and OSHA after the Notice of Contest is filed. The employer must also prove that there were no alternative means of employee protection available. Inspection . more serious. The employer must prove that compliance creates a greater hazard than noncompliance. Loss Control Consultant .Usually defined as an industry group. resolve the issues and reach a settlement. It informs the employees of their rights under the Occupational Safety & Health (OSH) Act. Job Poster . Infeasibility/Impossibility Defense .” It refers to the “Safety and Health Protection on the Job” poster which must be displayed in the workplace.A citation that is defective because it is issued more than “six months following the occurrence of any violation.This refers to OSHA’s practice of grouping multiple violations of different standards that affect the same hazard into a single. OSHA puts high hazard industries near the top of the list for programmed inspections. High Hazard Industry . Hazard .C.OSHAGUIDE.A temporary order requested by the employer that will waive compliance with a specific standard while the employer’s variance request is being processed. violation. § 658 (c). Informal Conference . which has a lost workday incidence rate higher than the national average for all employers.An affirmative defense available to the employer. Interim Order . Greater Hazard Defense .
C. (See “Loss Control Consultant” above). The Notice of Contest is submitted to the OSHA Area Director.S.OSHAGUIDE.000.The free consulting services provided by many workers compensation carriers. For an exact calculation the employer should contact its workers compensation carrier Loss Control Consultant. (2) the abatement period. Non-abatement . Page 58 . but it is usually much less than that. § 659 (a). The statistic is intended to reflect the number of lost workday injuries experienced by 100 full-time workers.The employer has the right to contest the citation if it disagrees with any of the following: (1) the alleged violations.S.The preliminary conference between the employer and the Compliance Officer prior to the start of the inspection. Penalties for failure to correct (or “non-abatement”) can be as high as $7. Lost Workday Injury (LWDI) Rate .COM Loss Prevention Services .C. § 666 (c). § 666 (k). The OSHRC either adopts the ALJ’s opinion or issues a decision of its own. Notice of Contest . (3) the penalty amounts. The Compliance Officer will explain the purpose of his visit and identify the persons to accompany him during the inspection.C.C. Other Than Serious Violation . or.” The maximum penalty for an Other Than Serious violation is $7.also referred to as “circuit courts. The employer must give OSHA written notice that it disagrees with the citation.000 per day for each day past the correction date.The OSH Act refers to the federal Occupational and Safety and Health Act of 1970.000 divided by the sum of employee hours worked in the reference years. Department of Labor that reviews the decisions of the Administrative Law Judge (ALJ) that presided over the contested case hearing. The formula for calculating the employer’s LWDI Rate is: the sum of lost workday injuries (LWDI’s) in the reference years x 200.The employer’s failure to correct the violations within the correction dates set forth in the citation. § 651 et seq.” Opening Conference .An “Other Than Serious Violation” is a violation that will not result in death or serious physical harm.The statistic used by the Compliance Officer to determine employer trends in injuries and illnesses. OSH Act .S. The employer’s written notification is formally called a “Notice of Contest. It is also referred to as “The Williams-Steiger Occupational Safety & Health Act of 1970.” Public Law 91-596.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. The number of LWDI’s can be obtained from the employer’s OSHA 300 log. Occupational Safety & Health Review Commission (OSHRC) – The OSHRC is a body independent from OSHA and the U. 29 U. 29 U. Courts of Appeal .S. Appeals of OSHRC decisions are heard by the U.S. An “Other Than Serious Violation” is more serious than a de minimus violation but less serious than a “Serious Violation. 29 U. 29 U.
S. Penalty . .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. OSHA has an “understanding” with many governmental units that are set forth in “Memorandum(s) of Page 59 . They must be filed before the close of the next working day following the date on which abatement was originally required. (3) OSHA Form 301. § 651 (b). . Criminal penalties can also be assessed in certain situations.The Director of an OSHA Area Office. Preemption .14 a (c). 29 U. Penalty Adjustment .OSHAGUIDE. Injury and Illness Report. Log of Work-Related Injuries and Illnesses. Reductions can never be below the minimum penalty amount set forth by statute or administrative rule.A penalty generally refers to a civil monetary penalty assessed against an employer by OSHA for violation of the OSH Act. PMAs are filed with the OSHA Area Director. increases can never be above the maximum penalty amount set forth by statute or administrative rule.oshaguide. Petition for Modification of Abatement (PMA) . An OSHA Area Office is located in most States. OSHA Area Director . 29 CFR 1903.A reduction in the penalty amount for meeting certain criteria set forth in the “Penalty Reductions” section of this manual. is the employer’s annual summary of occupational injuries and illnesses of its employees.The federal agency responsible for enforcing the Occupational Safety & Health Act.C.A defense available to certain employers if another governmental agency regulates the same conduct cited by OSHA.COM The purpose of the OSH Act “is to assure as far as possible. OSHA . The forms and instructions can be downloaded from OSHA’s website. (See “Criminal Penalties” above). is an incident report form that must be completed for every recordable injury or illness entered on OSHA Form 300.S.37 (c).C. The Compliance Office will review these forms during an inspection and verify that they have been posted properly. You can go to the “OSHA Links” page at www. OSHA 300 Log – This replaces the OSHA 200 log. ”. (2) OSHA Form 300-A.The general term encompassing penalty reductions and penalty increases. Employers are subject to civil and sometimes criminal penalties if they violate the OSH Act. Summary of Work-Related Injuries and Illnesses. Penalty Reduction . Likewise. § 659 (c). every working man and woman in the Nation safe and healthful working conditions .com to obtain contact information for all OSHA Area Offices. However. the term “OSHA 300 Log” is also used collectively to refer to the following three forms required by OSHA: (1) OSHA Form 300. The other federal regulation “preempts” the OSHA standard. is a log of each recordable injury and illness. 29 CFR 2200. The OSHA 300 log technically refers to OSHA Form 300.
C.001).A “Serious Violation” is a violation where there is a “substantial probability that death or serious physical harm could result. 29 CFR 1910. These Probability Rating . (See “Non-abatement” above). OSHA FIRM § IV-C-2-e. § 666 (k). Severity Assessment . (4) Agriculture. 29 CFR Part 1928.000. Referral Inspection . 29 CFR Part 1910. Serious Violation . Standard Industrial Classification (SIC) .One of the factors considered by the Compliance Officer in assessing the gravity-based penalty (GBP) amount for a violation.OSHAGUIDE. 1918.A violation that is not corrected by the correction date listed on the citation. (2) Construction. Programmed Inspection .An employer’s second or subsequent violation of a standard previously cited by OSHA inspection in the previous three years.COM Understanding” that can be viewed on OSHA’s website. memoranda often address when preemption applies. The probability ratings are “Greater” and “Lesser” depending on whether the likelihood of injury or illness is high or low.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. Each industry is assigned an SIC code. 29 CFR Part 1926..C. fractures.S. The severity assessment is based on the most serious injury or illness which could “reasonably be expected” to result from the employee’s exposure. Page 60 . are found in the Code of Federal Regulations (CFR) and are referred to by their federal CFR number (e.The federal classification system. 29 CFR Part 1915.S.g. (3) Maritime & Longshoring. § 666 (b). and. disabling burns.An unprogrammed inspection triggered when another government employee observes a safety violation and reports it to OSHA. Unabated Violation .One of the factors considered by the Compliance Officer in assessing the penalty amount for a violation. The standards are divided into four broad categories: (1) General Industry. machine guarding. etc. For a repeat. Examples of “serious physical harm” are amputations. Repeat Violation . OSHA will multiply the current penalty according the formula set forth in the “Penalties for Repeat Violations” section of this manual. Safety Codes . 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. 1917.” 29 U. which classifies employers by an industry code representing the type of activity performed. The maximum penalty for a “Serious Violation” is $7. etc. The severity assessment is ranked High. etc. accident statistics. Medium and Low. 29 U.
the Compliance Officer will be attempting to identify safety code violations. the Compliance Officer will conduct a tour of the business premises. and. (4) the employer knew.Upon the issuance of a new rule.S. While variance applications are pending employers can also request an interim order. A willful violation exists if the employer knowingly decided not to comply with the safety standard. Withdrawal . Willful Violation . Chapter 15. “programmed”) such as an accident. Unprogrammed Inspection . if the employer foresees that it will be unable to comply. § 655 (b)(6). The warrant must set forth probable cause for the inspection. 29 U.C.) is the body of law created by the United States Congress. Page 61 . Violation .S. referral by another government employee or in follow-up to a previous inspection.The document obtained by OSHA if the employer denies entry to all or part of the premises for the purpose of an inspection. Criminal sanctions can be imposed if a willful violation causes the death of an employee. An “interim order” grants to employers temporary authority to use alternative means of employee protection. 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.C. It can also refer to the employer’s withdrawal of a Notice of Contest. complaint. OSHA’s Office of Variance Determinations processes variance applications.S. The OSH Act is contained in U. (2) the employer failed to comply with the cited standard.” 29 U. A “variance” means that the employer is excused from complying with the specific health standard. Sections 651 to 678.) . Walk-Through . or that it will be unable to comply in time. Title 29. This is referred to as a “walk-through” or “walkaround. other than compliance with the safety standard.000.. During the walk-through. (3) employees were exposed or had access to the hazard. or with reasonable diligence should have known.000 to $70.e.” The Compliance Officer is authorized to conduct an inspection “during regular working hours and at other reasonable times.An inspection in response to an event that cannot be scheduled (i.The United States Code (U. Warrant . Variance (Application for) . and within reasonable limits and in a reasonable manner.OSHAGUIDE.COM United States Code (U.C.The term used when OSHA decides to abandon all or part of the citation.S. until a final determination is made on the variance application.A “Willful Violation” does not require malicious intent or an obstinate refusal to comply. the employer can apply to OSHA for a variance. § 657 (a)(1).S.OSHA must prove the following elements by a preponderance of the evidence to establish a violation: (1) the cited standard applies.After completion of the opening conference. A willful violation will be assessed a penalty of $5.C. of the hazardous condition.C.
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue listening from where you left off, or restart the preview.