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
M. penalties.D. This concise manual discusses employer rights.C. Brewster. His OSHA manuals have been featured on amazon.OSHAGUIDE. citations and contains a glossary of common OSHA terms.I. The federal OSHA manual applies to most of the United States. He is recognized as an authority on OSHA enforcement and as an attorney he has defended employers in some of the nation’s largest OSHA citations. This manual is updated every year to reflect changes in the law.COM OSHA Inspections and Defenses OSHA 2004 William M. MIM. 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.com and they are currently used as a resource across the United States and internationally.. Accordingly. employers are demanding to know their rights and responsibilities. JD. This problem is compounded by the fact that failure to comply can result in civil and sometimes criminal penalties. Copyright 2003 Page 1 . J. He currently practices law in Oregon and Washington. It addresses the following jurisdictions regulated by federal OSHA including Puerto Rico and the Virgin Islands**: Alabama Arkansas** Connecticut** Colorado Delaware Wash. INTRODUCTION OSHA compliance is becoming more difficult and employers must devote more of their resources to deal with this issue. CONTACT AN ATTORNEY IN YOUR AREA IF YOU REQUIRE LEGAL ASSISTANCE. D. Brewster.M. Condor OSHA Guides THIS MANUAL DOES NOT REPLACE LEGAL ADVICE. strategies and defenses during federal OSHA inspections.
2004 ** The following information is quoted directly from OSHA’s web site. OSHA directs that employers still record ergonomic-type injuries in either the “injury” or “all other illness” columns.osha..osha. employers should use the old OSHA 300A Summary Form (without the hearing loss column) to post as required in February 2004. including the addition of an occupational hearing loss column and more clear-cut formulas for calculating incidence rates. The forms for 2003 and 2002 will continue to be available on OSHA's website at www. 2004. There is no longer a column for work-related injuries associated with ergonomic factors.osha. 2003 and 2002 injuries and illnesses should be recorded on the forms for those years). Employers must begin using the new OSHA 300 Form on January 1. The revised form includes various changes. Injuries and illnesses for years prior to 2004 should continue to be recorded on the appropriate form for that year (i. The new 300A form that includes the hearing loss column should be used to post in February 2005.gov/recordkeeping/new-osha300form1-1-04.OSHAGUIDE. You can go to www.pdf for the new form. www. However.gov/recordkeeping/OSHArecordkeepingforms.e. The new form has the date of the revision (rev.gov.COM SPECIAL NOTICES FOR 2004 New OSHA 300 Form Effective January 1.pdf Additionally. Page 2 . 1/2004) located on the form next to the form number.
However.C. assessment of penalties and issuance of citations. Supreme Court.S. references to the OSH Act are in this type of format. machine guarding. Accordingly. An appeal of a federal circuit court decision is heard by the U. it is very helpful for the reader to be able to recognize the different types of cases cited. Some cases may not apply to your particular jurisdiction. The OSHA FIRM is not law and.S. it is not concerned with the broad range of safety standards contained in the CFR. At the first level. therefore. However. the order is as follows in terms of importance: (1) U. “29 CFR 2200. Thus.S. An appeal of an OSHRC decision is heard by the U.OSHAGUIDE. which is divided into twelve federal circuits. 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. In this manual we refer to the OSH Act as it is cited in the United States Code.” Court Cases Cited In the federal manual you will also see cases cited from different courts.” The Code of Federal Regulations (CFR): The specific safety standards regulating work practices and processes such as fall protection. therefore. are found in the Code of Federal Regulations (CFR). Supreme Court Page 3 .COM How to Use the Federal Manual Sources Cited In the federal manual you will see several legislative and administrative sources cited: The OSH Act: You will see numerous citations to the federal Occupational Safety and Health (OSH) Act of 1970.S. However. the CFR does contain other regulations that are pertinent to this manual such as the procedural rules of the Occupational Safety & Health Review Commission (OSHRC) concerning citation appeals. this manual is limited to OSHA inspections and. “OSHA FIRM § IV-B-1. § 651. etc. it does show how Compliance Officers address particular situations and calculate penalties. Court of Appeals.37. Some cases are more important than others. it has no value as a legal document binding OSHA. contested citations are heard by the Occupational Safety & Health Review Commission (OSHRC). There are other books and manuals that address specific OSHA regulations about hazard communication. “29 U. fall protection.” 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. Thus.
Court of Appeals. “5th Cir.Ct. 9th Circuit Guam Idaho Montana 10th Circuit Colorado Kansas Oklahoma 11th Circuit Alabama Florida Georgia Page 4 . D. the reader will want to focus on the enlarged portions indicated in bold. Readers will benefit the most by knowing the number of their federal circuit of the U.2d 1021 (5th Cir. 98 S. Court of Appeals.”. U. 7 OSHC 2048 (1979).. Marshall. (2) federal circuit court decision of the U. 436 US 307. (3) OSHRC decision.”. U. etc. Remembering the number of your federal circuit is helpful because different federal courts sometimes offer conflicting opinions or have their own slightly different interpretation of the law.C..S.S. Inc. Occupational Safety & Health Review Commission (OSHRC) Decision Keco Industries. and. 578 F. For quick recognition. Citations to the different courts are in the format shown below. Barlow’s Inc.S.Ed. v. 1816. Supreme Court Decision Marshall v.2d 305 (1978).OSHAGUIDE.COM decision.S. Inc. There are twelve federal Circuit Courts and many cases are cited in this manual as coming from the “1st Cir. 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. Court of Appeals Decision Stephenson Enterprises. 1978). 56 L.
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
g. OSHA can develop a scheduled list of employers to be inspected as long as neutral standards are used – e. it is important to know the two types of inspections performed by OSHA. etc. They are referred to as “programmed” and “unprogrammed” inspections based on the type of “probable cause” involved.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. 436 US 307.OSHAGUIDE. The scope of the inspection To address the “scope” issue. developed by OSHA. 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.. or schedule. 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 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.Ct. Accordingly.2d 305 (1978). by industry. for administrative searches. in the OSHA context. etc. Barlow's. etc. Administrative searches and criminal searches are different in that..” Page 8 . by geographic location. observation of an employee working without fall protection. a complaint. In the criminal context. 1816. probable cause can also be provided by reasonable legislative or administrative standards.g. the employer has the right to request a warrant to confirm that “cause” exists before OSHA can conduct an inspection. Thus. 98 S.. In contrast. Similarly. or “wall-to-wall. or schedule. Programmed inspections are based on an inspection list.. Thus.g. This means that OSHA must have probable cause to perform the inspection. supra. “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. “Probable cause” for programmed inspections is provided by the inspection list. Marshall v. probable cause would be specific evidence of an OSHA violation – e. broken taillight (traffic infraction). citizen complaint (drug offense).Ed. an accident. 56 L. Programmed inspections are by nature comprehensive. Barlow’s Inc. Administrative searches and criminal searches are similar in the sense that specific evidence can provide probable cause for a search.
the cause of the accident. employers should discuss with the Compliance Officer at the outset of the inspection whether it is going to be limited to the specifics of the incident or whether it is going to be a “wall-to-wall” inspection. unprogrammed inspections should be limited to the subject matter providing probable cause – e. As the Supreme Court noted in Barlow's.COM Unprogrammed inspections are so named because they are in response to incidents that cannot be scheduled (i. However. 1984). complaints. Donovan v. and (5) whether OSHA’s limited resources were being utilized in the public’s best interest. etc. 1982). v. 693 F. 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. 1985). the great majority of businessmen can be expected to consent to a search without a warrant.2d 280 (7th Cir.2d 838 (9th Cir. The Compliance Officer’s response will assist the employer in determining whether to request a warrant. 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.. Page 9 . 8th Circuit & 11th Circuit: OSHA must make “some showing” of why a broad warrant is appropriate in a particular case. Hern Iron Works. (2) whether the nature of the employer’s business and its safety record qualified it for a general inspection. complaint. Theoretically. Sarasota Concrete Co..e. North American Car Co. Inc. 1982).2d 1061 (11th Cir. Donovan.. most administrative searches are conducted on the basis of consent. accident or observed violation. 1980).OSHAGUIDE.. Marshall v. 626 F. etc. 670 F.). If the inspection is unprogrammed (accident. (3) whether a full inspection had been conducted within the preceding year. Indeed. Barlow's. programmed) such as accidents.2d 320 (3rd Cir. In re Cerro Copper Products Co. (4) whether the facility would be due for a programmed inspection in the near future. Warrants The employer has a constitutional right to request a warrant in order to confirm that probable cause exists for the inspection.. However. 741 F. the nature of the complaint. Carondelet Coke Corp.2d 172 (8th Cir. etc.g. “Probable cause” is provided by the specifics of the complaint. 752 F. supra. 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.
2. Valid Consent or Warrant Exceptions Apply: A property owner. accident.) the employer may want to request a warrant to avoid having OSHA transform the inspection into a broad “wall-to-wall” inspection. can give valid consent to a warrantless inspection with respect to any on-site employers.OSHAGUIDE. Consent to Warrantless Inspections The right to a warrant must be asserted at the beginning of the inspection or it can be deemed waived. Valid consent to a warrantless inspection operates as a waiver of the Fourth Amendment right against unreasonable search and seizure. 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. complaint. 3. Consent for Page 10 .) 4. “If you don’t use it – you lose it. Valid consent operates as a waiver of the Fourth Amendment right against unreasonable search and seizure.e. (See next Section for further discussion. 2. 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. Factors Against Seeking a Warrant 1. there may be some situations where “good will” is not much of a consideration because circumstances dictate that the employer’s conduct will be heavily scrutinized whether goodwill exists or not. To Avoid Waiving Constitutional Protections: The employer cannot invoke its constitutional protections without requesting a warrant.COM Factors For Seeking a Warrant 1. etc.. 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. 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. this is only a factor in jurisdictions that recognize such limitations. Maintaining the Compliance Officer’s good will is something employers should always consider. Perhaps one of the many warrant exceptions also apply.” 3. However. or general contractor in charge of multi-employer work site. To Keep an Unprogrammed Inspection Limited in Scope: If the inspection is unprogrammed (i. However. In more common vernacular. The right to a warrant must be asserted at the beginning of the inspection or it can be deemed waived.
g. 387 U. 536 F. coercion or misrepresentation. Thus. 1969). 87 S. OSHRC.COM administrative searches is less stringent than that required for criminal searches e. 1978). v. Inc. and the employer's acquiescence to the inspection. United States v. or general contractor in charge of multi-employer work site. J. 91 S. Dorey Electric Co. v. Those situations generally cover instances when OSHA needs to preserve an accident scene or temporarily remedy a patently life-threatening hazard.. 786 F2d 714 (6th Cir. Other federal cases have also held that the Compliance Officer's mere announcement that he is there for an inspection.Ct. Miranda type warning not required. cert.Ct. Marshall. Marshall. See v. den. this rule has been applied where delay to get a warrant would Page 11 . 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. Lake Butler Apparel Co.2d 1021 (5th Cir. 1727. 553 F.Ed. Seattle. 412 U. Bustamonte. Donovan. 87 S. Stephenson Enterprises. 418 F. Inc. 1978). 400 U. which is generally defined as a threat to human life. v. 1986).S. v. Stockwell Mfg. The courts will look at the "totality of the circumstances" to determine whether consent was freely and voluntarily given.Ed. Camara v. 1737.Ct. 387 U.. a plant manager can give valid consent.2d 185 (1970). 578 F.2d 1021 (5th Cir. Consent to an administrative inspection need not be express and the failure to object to a known search constitutes consent. 218 (1973). Secretary of Labor. Usery. v.S. 926. 1975). In the OSHA context. 1970). An Emergency An administrative search without consent and without a warrant is permissible in the event of an emergency. United States v.” One federal Circuit Court held that valid consent was given by a foreman. Stephenson Enterprises..2d 1309 (1oth Cir. 578 F. 519 F. Consent by Others A property owner. 1977).L. Thriftmart. Warrant Exceptions There are several situations where a full inspection can be performed without a warrant. Consent can be given by any competent management official. Co. 188. 541. Foti Construction Co.2d 84 (5th Cir.2d 930 (1967). Kramer Grocery Co. There are also some isolated situations where OSHA can initially enter the premises without a warrant to accomplish a specific purpose.S. 18 L. can consent to a warrantless inspection with respect to any on-site employers.2d 987 (8th Cir. 523.OSHAGUIDE. 1976).2d 943 (1967). 18 L. Schneckloth v.2d 1006 (9th Cir.S. The authority to give valid consent can also extend down the management “food chain.2d 357 (4th Cir. 429 F. v. Municipal Court. 27 L. Consent is not valid if it is the result of threats.Ed. manifests consent. Inc.
R. 499... 463 U. Andreas. 403 U. In one case. The use of a telephoto lens that enhanced the Compliance Officer’s view has also been upheld. 104 S. Michigan v.. supra. 56 L. 134 F.S. 1984)... The “open fields” exception also applies to indoor facilities open to the general public. Globe Contractors.2d 1235 (4th Cir. 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. 1978). Willson & Sons. Latite Roofing & Sheet Metal Co. 466 U.R. Coolidge v. 80 L. 436 U. New Hampshire. Oliver v.2d 1422 (9th Cir. United States. such as commercial retail space.. L.2d 1235 (4th Cir. Secretary of Labor v. The observance of the violation must also be inadvertent. Inc.e. 15 OSHC 1903 (1992) citing Coolidge v. 399 (5th Cir. OSHRC.2d 486 (1978). Marshall v. United States v. even in places open to the public such as a grocery store. Inc. 732 F. 443. L. 170. Secretary of Labor v. However.Ed.2d 390. 560 F.. 98 S. OSHRC. fencing.Ct..S.S. Willson & Sons. a contractor might be able to create a privacy interest by closing the site to the general public by means of barricades. 1998). Bast Hatfield Inc. Marbury. 2d 947 (8th Cir. Inc. Head. 765.. Thus. New Hampshire. 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. Tri-State Steel Construction Inc. violations were observed while looking through the window of an attorney’s office with the attorney’s consent. Secretary of Labor v. Page 12 . 18 OHSC 1848 (1999). 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. 134 F. 1942. 783 F.OSHAGUIDE. 771 (1983). The Compliance Officer must be lawfully positioned -. 1998).i. 468 (1971) and Illinois v.Ct. v. Open Fields & Outdoor Projects The “open fields” exception holds that there is no privacy interest for activities conducted in places open to the public. Compliance Officers can legally videotape roofing contractors working without fall protection from a vehicle parked on a public street. 17 OHSC 2165 (1996). Tyler.COM increase the danger and consent could not be obtained. 1735. 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. United States v. the Compliance Officer should not trespass on private property or within a closed work site to view the violation.Ed. However. For example. Thus. 19 OSHC 1287 (2000). Western Waterproofing Co. 1986). Secretary of Labor v. federal case law recognizes some constraints.2d 214 (1984). signs or totally enclosing the area with tape marked “Do Not Enter” or similar language.S. This exception often applies to construction activities conducted outdoors if the public has access to the work area.
This method is not favored because of the fines and costs associated with contempt proceedings. 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. One option is for the employer to refuse the inspection and seek to quash the warrant in civil court. If OSHA initiates a contempt proceeding against the employer. 2. OSHA can then begin looking into hazard communication issues. the employer would then defend its refusal to comply with the warrant. INSPECTION PROCEDURE Presentation of Credentials Upon arrival. the Compliance Officer may be asking a forklift driver about the forklift accident. However. a Compliance Officer can cite a machine guarding violation in plain view. The most favored option is to allow the inspection under protest and then challenge the warrant in contest proceedings before the OSHRC. Challenging Warrants The employer basically has three options if it wishes to challenge an OSHA inspection warrant: 1. Page 13 . 3. However. the presentation of OSHA credentials is similar to a police officer “flashing his badge” to prove his identity. the employer must be prepared to wait until the contest proceeding goes to hearing – which often can take quite some time. or middle ground. However. The purpose is somewhat similar.OSHAGUIDE. 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). Thus. 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. which is likely.COM Violations found in plain view during an otherwise legitimate inspection can be cited. the forklift driver begins talking about other unsafe practices including the employer’s lack of a hazard communication program. An alternative. For example. to challenging a warrant is to seek a protective order with the goal of favorably modifying the scope of the inspection. while conducting an inspection to investigate a forklift accident. In practice. Another option is to allow the inspection under protest and then seek to quash or modify the warrant in civil court. the Compliance Officer will present his or her “credentials” which usually consists of an official badge or OSHA identification card.
As with the “agent in charge” issue during the presentation of credentials. Keco Industries. Steel Corp.e. Inc.OSHAGUIDE... 626 F. An authorized employee representative shall also be given an opportunity to accompany the Compliance Officer during the inspection. Opening Conference After entry is granted. C.. 1978) (most “senior employee” left at the site deemed agent in charge). If it is an unprogrammed inspection (i. The owner or operator is usually easily identified. However. North American Car Co.” 29 U.F. 1980).2d 320 (3rd Cir. 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. Dorey Electric Co.2d 357 (4th Cir.” This broad definition generally encompasses anyone with apparent authority at the work site. Thus. There is some limited authority for the proposition that even if an employer consents to a warrantless inspection.S. even if the employer has consented to a warrantless inspection. The problem arises when the supervisors are absent and the Compliance Officer asks. 7 OSHC 2048 (1979). The employer should document in writing the scope of the inspection that it has authorized (i.. 8 OSHC 1162 (1979). 576 F.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. The OSH Act conditions an inspection upon the proper presentation of credentials to the “owner. § 657 (e). the Compliance Officer will ask for the “agent in charge. A critical point for the employer is to define the scope of those deemed to be the authorized employer representative prior to an inspection. 553 F. Merchants Oil Inc. Marshall v.COM There have been cases of con men posing as Compliance Officers and soliciting bribes or “protection money” to prevent inspections... complaint. If neither is present. & I. 1977) (foreman was deemed agent in charge). or agent in charge of the workplace.” 29 U. “Who is Page 14 . Id. the scope of its consent) and give a copy of this document to the Compliance Officer and keep another copy for its records. § 657 (a). v. If an “agent in charge” still cannot be readily identified. complaint. the Compliance Officer will not delay the inspection an unreasonable length of time. the Compliance Officer will make a reasonable attempt to contact a management official. the inspection still cannot exceed the scope of the employer’s consent. ask whether there are any trade secrets that need to be protected and identify the participants to the inspection. the Compliance Officer will conduct an opening conference explaining the purpose and methods of inspection. a foreman or leadperson can be deemed the “employer representative” for the purpose of conducting an inspection if no other management official is present.C. Marshall v.e. etc. The Compliance Officer will also request employer records. OSHRC. operator. it is a good practice during the opening conference for the employer to document the scope of its consent.C. in response to an accident.2d 809 (10th Cir.
COM in charge while the supervisors are away?” Any employee who steps forward is deemed an agent of the employer and becomes the employer representative for the purpose of the inspection. the Compliance Officer will be attempting to identify safety code violations. The above strategy is to prevent non-supervisory personnel from holding themselves out to OSHA as an agent of the employer. about the information it volunteers. The Walk-Through and Collecting Evidence After completion of the opening conference. § 657 (a)(2). The purpose is to produce mitigating evidence to refute any damaging evidence collected by OSHA. the employer should limit the discussion to the specifics of the accident or the complaint.S. The employer can be cited for any information that it volunteers to the Compliance Officer. The inspection can go forward without an employer representative as long as the Compliance Officer substantially complied with the duty to identify an employer representative and there was no prejudice to the employer by not having one present. the employer should schedule the employee interviews and designate a neutral area Page 15 . and within reasonable limits and in a reasonable manner. 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.” 29 U. but cautious. some employers feel that it is worth the risk to produce their own record of the inspection. This right probably also includes videotape as long as trade secrets are adequately protected. 29 CFR 1903. the employer should be cooperative. 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. If the Compliance Officer is conducting an unprogrammed inspection. the Compliance Officer will conduct a tour of the business premises. Even so. The above strategy will not prevent an inspection. The Compliance Officer has the right to take environmental samples and photographs. This is referred to as a “walk-through” or “walkaround.” Therefore. Many employers choose take their own photographs and videotape during the inspection.C. During the walkaround. Employers need to be aware. Therefore. it is important for the employer to limit the scope of the inspection as much as practicable. the employer should attempt to keep the inspection limited to the area of the accident or the area identified in the complaint. however. The Compliance Officer can interview employees in private outside the presence of an employer representative. However.S. If this is an unprogrammed inspection. that this is a two-edged sword. Any evidence that employers collect may be used later by OSHA to prove a violation.7 (b). § 657 (a)(1).” The Compliance Officer is authorized to conduct an inspection “during regular working hours and at other reasonable times.C. Accordingly. even during an unprogrammed inspection the Compliance Officer can cite the employer for any other violations in “plain view. As noted.OSHAGUIDE. 29 U.
remember the “plain view” problem. 29 CFR 1903. 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. despite OSHA’s enforcement and outreach efforts. The employer’s duty to post the citation. § 657 (a)(2). The requirements for abating any violations or requesting extensions of the correction date. that can be found on OSHA’s web site. If the Compliance Officer objects. A fatality inspection in which OSHA finds a high gravity serious (or willful or repeated) violation related to the death. penalties or correction dates. Rather. The EEP is not actually federal law. ignore their OSH Act obligations. the employer will also be considered for criminal referral under section 17(e) of the OSH Act. The program is more fully discussed in an OSHA memorandum dated September 30. 5.C. thereby placing their employees at risk. PEC Criteria A Priority Enforcement Case. At the closing conference. If OSHA finds that a willful violation caused the death of an employee.COM such as a lunchroom. The right to request an informal conference with OSHA. Page 16 .S. The employer’s right to contest the citation. This prevents the Compliance Officer from rambling around the facility without a management person present . In essence. 2. 6. 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. 2003. 4. Whether any violations were found and if a citation will be issued. ENHANCED ENFORCEMENT PROGRAM (EEP) OSHA’s Enhanced Enforcement Program (EEP) addresses employers who.7 (e). Closing Conference After the inspection is completed the Compliance Officer will hold a closing conference with the employer and employee representative.OSHAGUIDE. 3. or PEC. is defined as any inspection that meets one or more of the following criteria: 1. the Compliance Officer will inform the parties of the following: 1.” 29 U. That discrimination against employees is prohibited for exercising rights under the OSH Act. the EEP is an OSHA program which sets forth the procedures that OSHA Regional Administrators should follow in cases meeting the PEC criteria.
COM 2. Requiring the employer to submit to OSHA its Log of Occupational Injuries and Illnesses on a quarterly basis. OSHA may consider including some or all of the following terms within the settlement agreement: 1. 4. using settlement agreements to obtain from employers a list of other job sites. 3. Requiring the employer to hire a consultant to develop a process to implement an effective safety and health program with management support in the facility. 2. Applying the agreement company-wide. 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. 5.OSHAGUIDE. In construction (and where appropriate. Inspections of Other Sites When circumstances warrant. OSHA will often make greater use of settlement provisions to ensure future compliance. OSHA may also hold meetings with company officials or send letters of concern to the company president. the EEP recommends that at least one other worksite be inspected. Company Headquarters Notification In PEC cases. and Page 17 . Related establishments of the same employer will also be placed higher on OSHA’s inspection priority list. An inspection that results in two failure-to-abate notices where the underlying violations were classified as high gravity serious. If the employer is in construction. PEC Follow-up Inspections In PEC cases. OSHA will mail a copy of the citation and notification of penalty to the employer’s national headquarters. 3. and to consent to OSHA's conducting an inspection based on the report. Using Settlement Terms to Ensure Compliance and Abatement In PEC cases. 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. An inspection that results in three or more high gravity serious violations classified as willful or repeat violations. a follow-up inspection will be conducted even if abatement of the cited violations has been verified. in general industry).
The inability to locate any required records and written programs makes a poor impression on the Compliance Officer. Adopt a company safety policy. 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. Most employers are required to develop and implement certain written safety programs (e. OSHA also has many free publications that can be downloaded off the Internet at the web address listed above.e. Section 11(b) Summary Enforcement Orders are sometimes used as an effective and speedier alternative to failure-to-abate notices. EMPLOYER STRATEGIES Before The Inspection Download any applicable safety codes and regulations from the Internet at OSHA’s Web address: www. If any of the rules are violated. as well as limited assistance away from the worksite. OSHA 301 forms and/or worker’s compensation claim forms. No penalties are proposed or citations Page 18 . 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. and check if there are any proposed rules which will affect your industry. OSHA 300 Log. Obtaining employer consent to a court enforcement order mandating abatement. During any inspection. Your carrier’s Loss Control Consultant can assist you in developing and implementing the required safety programs. onsite assistance in developing and implementing effective workplace safety and health management systems. contact your workers’ compensation carrier. OSHA always has authority to examine mandatory records . Employers may also receive training and education services. Monitor these proposed rules to determine if you need to implement any new programs/procedures or apply for a variance. etc. Finally. hazard communication).COM 6. OSHA Form 300A. Many carriers provide free loss prevention services. 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. Periodically visit OSHA’s website.html. Keep copies of any other written programs in a central location for easy review by OSHA. “OSHA’s consultation service provides free.osha. many private safety and health consultants are often listed in your local telephone directory.gov/comp-links. Keep these records up-to-date and in a central location for easy review by OSHA. Consultation assistance is available to small employers (with fewer than 250 employees at a fixed site and no more than 500 corporatewide).OSHAGUIDE.g. If you need help determining which programs or standards apply to you.g.
This will assist you in tactfully requesting a warrant if the need arises. Give a copy of this document to the Compliance Officer and keep a copy for your records. A property owner. preferably in writing. Advise informal leadpersons and crew leaders that you do not want them to act as employer representatives during an inspection. Certain warrant exceptions may also apply. However. Explain to them that they should inform OSHA. close any open work sites to the general public by means of barricades.OSHAGUIDE. signs or totally enclosing the area with tape marked “Do Not Enter” or similar language. Designate the authorized employer representatives for the purposes of OSHA inspections.COM issued for hazards identified by the consultant. OSHA consultation assistance will not provide the employer’s name or workplace information to OSHA enforcement. if you do not request a warrant you waive any constitutional protections.g. 2002). or general contractor in charge of multi-employer work site. If this is a programmed Page 19 . On multi-employer worksites. and (2) take alternative steps to protect your employees. Participation in these programs can exempt the employer from some inspections. that they are NOT in charge of the worksite during their supervisor’s absence.] You may also consider applying for OSHA’s VPP and SHARP programs. A warrant is best utilized with unprogrammed inspections (accidents. Consider adopting a written policy of requesting warrants for all OSHA inspections. A warrant has less value with respect to a programmed (scheduled) because they are by nature comprehensive inspections. etc. if you are an employer. fencing. 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. Be ready to access any records related to your mandatory record keeping requirements . If possible. If you decide to consent to a warrantless inspection. The employer’s only obligation is to correct all identified serious hazards within the agreed upon correction time frame.e. Even experienced attorneys find this complex.” [Quoted from OSHA Publication 3000 (Rev. complaints. At the Beginning of the Inspection Determine whether you want to waive your right to a warrant.) to prevent OSHA from exceeding the scope of the inspection. etc. document in writing the scope of the inspection that you have authorized. 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. do the following: (1) make a reasonable effort. if asked. OSHA 300 Log. can consent on your behalf to a warrantless 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. other means of protection. Page 20 . exposure limited in duration. Request a copy of the investigation report at the closing conference.e. try and keep the discussion limited to the specifics of the accident or complaint. Confirm with your employees whether the Compliance Officer accurately characterized their statements. If the Compliance Officer requests to talk to employees in private. However. Therefore. However. be ready to access any other written programs e. etc. You can be cited for any information you volunteer to the Compliance Officer. lock-out/tag-out. limited access to the point of danger. try to make sure that the Compliance Officer confines the inspection to the area of the accident or the complaint.g. If this an unprogrammed inspection. be cooperative but cautious about the information you volunteer. you may also want to include trained persons with technical expertise concerning the machinery or processes involved. Correct as many violations as you can during the inspection.OSHAGUIDE. Legal representation is especially advisable if your company has a poor history with OSHA. It explains the rationale behind the specific violations found and how the penalties were calculated. the Compliance Officer is authorized to inquire into any and all safety issues.g. etc. 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. the employer should schedule the interviews and designate a neutral (nonproduction) area such as a lunchroom. as much as practicable. which is his right. it is very important during the inspection to point out those factors which reduce the probability of an accident occurring . or the citation involves a serious injury or willful violation. The investigation report often contains employee statements paraphrased in written notes by the Compliance Officer. This will certainly include the authorized employer representative. if this is a programmed (comprehensive) inspection. Accordingly.” Accordingly. Have employees close their tool boxes and store broken equipment.COM (comprehensive) inspection. During the Inspection Determine the persons who will accompany the Compliance Officer during the inspection. training received by the employees. few employees exposed. a problem with repeat violations. hazard communication.
This is true Page 21 . can be imposed for knowingly making any false statement. plan or other document required by the OSH Act. record. or both. 29 CFR § 1903. This is because a general violation is more subject to providing the foundation for a repeat violation.S. 29 CFR 2200.C.S. However.C. 29 CFR § 1903. Accordingly.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.g. 29 U. 29 CFR 1903. They must be filed before the close of the next working day following the date on which abatement was originally required. § 666 (g). If the informal conference goes poorly. OSHA is generally more interested in mitigating factual information than legal defenses.OSHAGUIDE.C. For example. the parties can sometimes accomplish much the same purpose by requesting a pre-hearing conference with the Administrative Law Judge. The filing is timely if it is postmarked within the 15-day period. Labor Disputes & Retaliation If the complainant requested confidentiality. The Notice of Contest is submitted to the OSHA Area Director.21 (c). It is also a good strategy to request that broad general violations be reclassified as specific code violations. OSHA will perform an inspection in response to a complaint if they have reason to believe that it is valid. the complaint may come during the midst of a labor dispute. sometimes an employer obtains information that a disgruntled employee filed the complaint. At The Informal Conference At the informal conference. 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. It is this type of information that will most likely result in violations being withdrawn or penalties being reduced.S.37 (c). if a specific program is involved (e. Sundays and federal holidays.17 (a). OSHA will not release the complainant’s identity. or certification in any application. § 659 (c). Likewise. representation.000 or six months imprisonment. § 659 (a). there is no formal mediation under the OSH Act or the procedural rules of the OSHRC. 29 U. Petitions for Modification of Abatement (PMAs) are used if the employer does not contest the citation but needs more time to correct the violations. The term “working days” excludes Saturdays. 29 CFR § 2200. exercise extreme caution when completing any documents concerning abatement certification. Criminal penalties of $10.51 (b). However. 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. 29 U. Disgruntled Employees. PMAs are filed with the OSHA Area Director.14 a (c).
29 U. 18 U.16 (a). even if the complainant subsequently violates legitimate work rules.S. advise the Compliance Officer that the complaint may have been filed for improper motives if you have good reason to believe this is true.C.” 29 U.” OSHA FIRM § II-A-2-g-(2). § 666 (i). The employer can be assessed a maximum penalty of $7.C. it is insufficient for the Compliance Officer merely to surmise that employees must have been exposed to the hazard. § 658 (b). However. 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.16 (b). Finally. A longstanding hazard can be cited as long as employees were exposed to the hazard in the six months preceding the citation. 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. However. 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. Page 22 . the employer will need to be cautious about taking any disciplinary action. 29 U. Employers should be aware that the six-month “statute of limitations” for citations does not apply to criminal violations of the OSH Act. § 658 (a). in practice. THE CITATION If the Compliance Officer observes a safety violation or a health hazard. The six-month period begins to run on the last day that employees had access to the zone of danger.C. Rather.S. § 660 (c). § 3238. It is an unlawful employment practice for an employer to discriminate or retaliate against an employee who files a complaint with OSHA.000 for failure to post a citation. 29 U. 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. the criminal statute of limitations applies which is usually the five-year statute of limitations for federal non-capital crimes. 29 CFR 1903.C. 29 CFR 1903. The OSH Act requires that copies of the citation be posted near each place of a violation. OSHA must issue the citation within “six months following the occurrence of any violation.S. whichever is longer.COM even if the complainant possibly had other motives for filing the complaint.S. § 658 (c).S. Thus.C.OSHAGUIDE. 29 U. OSHA must prove exposure.C. a citation will be issued setting dates of correction for each of the violations. A civil monetary penalty for each of the violations will also likely be assessed.S. The citation must remain posted for three days or until the violation has been corrected. Accordingly.
S. OSHA now requires that the employer submit written Abatement Certification to the OSHA Area Director as proof of abatement. 2. The steps and dates of all employer actions to achieve compliance within the abatement period.g. Certification that the PMA was posted 10 days in a conspicuous place sufficient to give all affected employees notice of the PMA. unavailability of technical experts. This coincides with the employers’ 15-day period in which to file an appeal of the citation. or certification in any application.COM Abatement “Abatement” is the OSHA term for correcting the violation.000 PER DAY for each day the violation is not corrected past the correction date. If the citation is not contested. PMAs are filed with the OSHA Area Director..OSHAGUIDE. Criminal penalties of $10. 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. construction or alteration cannot be completed in time. § 659 (c). Employers may be assessed penalties of up to $7. plan or other document required by the OSH Act. § 659 (b). PMAs must contain the following information: 1. However. The reasons why the employer needs additional time – e. § 666 (d).” 29 U. can be imposed for knowingly making any false statement. The specific amount of additional time needed. 29 CFR 1903. The interim steps being taken to protect the employees during the abatement period. 29 U. 29 U. the employer’s notice of contest must be made “in good faith and not solely for delay or avoidance of penalties. 5. A safer practice is to file the PMA before the abatement period expires. or both. Employers generally have a 15-day “grace” period before abatement must occur. 3. The correction dates for each violation can be found on the face of the citation. Thus. 4.C.S. § 666 (g).S.000 or six months imprisonment.C. then the employer must abate the violations. They must be filed before the close of the next working day following the date on which abatement was originally required. 29 CFR 2200. If there is no objection to the PMA by employees or authorized employee Page 23 .C. representation. abatement is placed on hold while the employer contests the citation. If the citation is contested.14 a (c). the employer should exercise extreme care when completing abatement certification documents.37 (c). record.C. 29 U.S.
29 U. or with reasonable diligence should have known. then OSHA has authority to rule on the PMA. However. 9 OSHC 2126 (1981). 2. 19 OSHC 2060 (2002). their authorized representatives or OSHA. and. The possibility of injury is very remote. D.. When the OSH Act was first established minor record keeping errors were felt to be de minimus.E. Dun-Par Engineered Form Co. Page 24 . 1982). The employer knew. VIOLATIONS OSHA must prove the following elements by a preponderance of the evidence to establish a violation: (1) (2) (3) (4) The cited standard applies. 3. Inc. De minimus violations are now normally reserved for instances when: 1. 12 OSHC 1962 (1986). then the Occupational Safety & Health Review Commission (OSHRC) will rule on the PMA. The standard is technically violated but the employer provides equivalent or better protection than the standard.. Employees were exposed or had access to the hazard.2d 69 (1st Cir. Secretary of Labor. Collins Construction Co. If there is an objection to the PMA by employees. affirmed in part 681 F.. No injury would result. § 658 (a). of the hazardous condition. 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.S. The employer failed to comply with the cited standard.3d 691 (2d Cir.A. C. No penalty is assessed because the violation is determined to be rather trivial. 1997). that is no longer the case due to flagrant record keeping violations by many employers. A technical violation occurred but no employees could be harmed by the violation. Astra Pharmaceutical Products. Wylie Construction Co.OSHAGUIDE.COM representatives. Secretary of Labor v. Classifications OSHA classifies violations into specific types. 117 F. In some jurisdictions this extends to cases where any injury would be trivial.C. v.
” 29 U. 29 U. § 666 (k). disabling burns. § 666 (c).C. 29 U. Secretary of Labor v.C.3d 400 (7th Cir. This also applies to contractors and other employers with non-fixed worksites. § 666 (a). be aware that some courts have interpreted settlement agreements pertaining to prior violations as “final orders. Thus. 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. 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. OSHA must also show that the previous citation became a final order.. 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. Caterpillar. Repeat The maximum penalty for a repeat violation is $70. Same or Substantially Similar Violation: Of course.COM Other Than Serious An “Other Than Serious Violation” is a violation that will not result in death or serious physical harm. 1998) (mechanical machine guarding and electronic eye both involved same pinchpoint hazard). § 666 (b). at the time of the alleged repeated violation. However. 29 U. v.S. fractures. a “Serious Violation” is a violation where there is a “substantial probability that death or serious physical harm could result. the employer can best avoid repeat violations by showing that the prior citation involved different conditions or hazards. Accordingly.000. An “Other Than Serious Violation” is more serious than a de minimus violation but less serious than a “Serious Violation.OSHAGUIDE. 18 OSHC 2082 (2000). but it is usually much less than that.” Potlach Corp. 7 OHSC 1061 (1979). Page 25 .” The maximum penalty for an Other Than Serious violation is $7..” Modern Continental Construction Co.S. 29 U. § 666 (k). OSHA FIRM § III-C-2-f-(3)-(a).000. 305 F.000.S. Otis Elevator Inc. A “Repeat Violation” occurs if. However. OSHA FIRM § III-C-2-f-(4)-(c). 154 F. 2002). Inc.C. etc.S. Serious As noted above.3d 43 (1st Cir. whichever is later. Herman. there was a final order against the “same employer” for “a substantially similar violation. different standards can also result in a repeat violation if the hazard involved was substantially similar. Examples of “serious physical harm” are amputations.C. The maximum penalty for a “Serious Violation” is $7. Accordingly. OSHA must show that the same employer was cited once before for the same or substantially similar violation.C. OSHRC.S. a repeat violation can be established by showing that the same standard was violated. v.
. 647 F.3d 564 (8th Cir. 1979). 122 F. v. Fluor Daniel v. the federal OSHA states of Alabama. Cir. the Eleventh Circuit (i. 200 F. 1975). v. § 666 (d). denied 120 S. 1979).OSHAGUIDE. the employer should request reclassification if it concedes that a violation occurred. If a specific standard is more applicable.S. § 666 (a). Inc. Joe Minerals Corp.C. Herman. v..2d 311 (9th Cir. v.000. St. which has a maximum penalty of $70. Failure to Abate versus Repeat Violation: The issue is whether or not the violative condition was brought into compliance following the initial inspection. cert. Georgia Electric Co. Rebutting Willfulness: Employers can rebut a charge of willfulness by showing that they made good faith efforts to comply with requirements of the standard. denied 423 U. 268 F. OSHRC.C. This can be done at the informal conference level.2d 309 (5th Cir.Ct. 295 F.3d 378 (6th Cir. 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. v.000 per day can be imposed if an employer fails to correct a violation. Secretary of Labor v. 29 U. OSHRC. 522 F.) cert. an employer’s mere knowledge of a standard and subsequent violation of that standard is insufficient to prove a willful violation.e. Other jurisdictions have defined a willful violation as one committed with “intentional disregard” or “plain indifference” to the requirements of the OSH Act. 2000). Willful The most serious violation is a willful violation. Inc. OSHRC. 2002). v. Penalties of $7.S.3d 256 (3d Cir.3d 1123 (D.C. OSHRC. Secretary of Labor. 1981). Dakota Underground.S. 809 F. See also Alden Leeds. National Engineering & Contracting Co. Caterpillar Inc. However. OSHRC. v. 29 U. Violation of a broad standard is more apt to provide the basis for a subsequent repeat. OSHA FIRM § III-C-2-f-(6). 578 (1999). National Steel & Shipbuilding Co. It is a repeat violation if the condition was corrected following the initial inspection but subsequently developed again. Kaspar Wire Works.3d 437 (7th Cir.. Failure to abate exists if the violation was never corrected. 298 F. However..2d 777 (4th Cir. Secretary of Labor. A willful violation exists if the employer knowingly decided not to comply with the safety standard.. 2002).. A “Willful Violation” does not require malicious intent or an obstinate refusal to comply. 2001).COM The employer may also avoid future repeat violations by having broad general violations reclassified as specific code violations. Inc. 1997).2d 161 (1st Cir. SC Development Corp. Brock v. Florida and Georgia) Page 26 . Inc. 1987).000 and a minimum penalty of $5. OSHRC.3d 1232 (11th Cir.. v. 1072 (1976). 19 OSHC 1883 (2002).2d 840 (8th Cir. 607 F. Morello Bros. Construction. Marshall. Intercounty Construction Co. 181 F. 595 F.
It also applies to Page 27 . 29 CFR § 1910. United Automobile Workers v. Usery v. if the specific standard was inadequate to protect the employees. 29 U. A second conviction is punishable by a fine of up to $20. OSHRC. Secretary of Labor. 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. 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. 295 F. Older court decisions have held that a more specific safety standard can preempt the general duty clause. imprisonment up to one year. The more recent trend is for courts to hold that a general duty clause violation may exist. United States v.3d 437 (7th Cir. v.000. Co. MJP Construction Co. 815 F.2d 1570 (D. 2002). .3d 1232 (11th Cir.COM appears to have rejected a good faith defense for willful violations. This applies to observable conditions that a reasonable person would deem hazardous. the employer may be liable for a fine of up to $10.5 (f)..000. . 1978). despite compliance with a specific standard. § 666 (e).S. 1997).3d 484 (7th Cir. Reasonable efforts at compliance have been held sufficient even though they are incomplete or not entirely effective.” 29 U. will defeat a showing of willfulness. Cir. 1998). Marquette Mfg. 135 F.OSHAGUIDE. 122 F.C.” 29 U. OSHRC. Some cases have even held that the employer’s good faith interpretation of a safety standard. v. The legislative intent was to protect employees in hazardous situations for which standards had not yet been adopted. 19 OSHC 1638 (2001). General Dynamics Land Systems Division. A recent case has also If a willful violation causes the death of an employee. 579 F. § 654 (a)(1).2d 378 (6th Cir. 1977).C. This is known as the “General Duty Clause” which provides: “Each employer . although incorrect...S. § 654 (a)(1). 1987). six months in prison. Empire-Detroit Steel v. the general duty clause is limited to “recognized hazards.2d 902 (2d Cir. However. Ladish Malting Co. or both. Fluor Daniel v. OSHA will cite the employer for violations of the general duty clause when hazards exist that are not covered by specific standards. Some critics have argued that the “General Duty Clause” imposes strict liability on employers..C. OSHA uses the general duty clause as a “catch-all” provision. or both.S. OSHRC. 568 F. Some regulations indicate that employers should not be cited for general duty clause violations if hazards are addressed by more specific safety standards.C. See also Caterpillar Inc.
COM conditions generally recognized as hazardous by the employer’s industry. Creating Employer: A “creating employer” is one that causes a hazardous condition that violates a safety standard. 2002). Otherwise. An exposing employer’s obligation depends on whether it has the authority to correct the hazard. a violation may not exist if the hazard was unforeseeable or if an accident was the result of freakish or implausible circumstances. 2.S. OSHRC. OSHA’s Multi-Employer Citation Policy In 1999. (2) exposing employer. and (2) it failed to take reasonable steps to protect its employees. 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. even under the rather loose standard of the general duty clause.” Creating employers can be cited if any employees at the site (including those of other employers) are exposed to the hazard. 489 F. v. This element stands for the proposition that the risk of serious physical harm must be foreseeable. Exposing Employer: An “exposing employer” is one whose own employees are exposed to the hazard. 295 F. OSHRC. NUCOR.2d 1257 (D. Compliance Officers follow a two-step process to determine which employers are cited.” National Realty & Construction Co. Step Two: Determine whether the employer met the obligations imposed on its particular category.” 29 U. (3) correcting employer.OSHAGUIDE. Jordan v. Multi-Employer Situations Who is responsible for enforcing safety regulations when the employee works for more than one employer? Who is responsible for enforcing safety regulations on a worksite with several employers? These are common questions for general contractors. a creating employer always fails to meet its obligation.3d 828 (8th Cir. Cir. 1973). Accordingly. supra. § 654 (a)(1) [emphasis added]. National Realty & Construction Co. The general duty clause is also limited to hazards that “are likely to cause death or serious physical harm. Correction Authority: If the exposing employer has correction authority it can be cited if (1) it knew. subcontractors and employers utilizing employee leasing companies or temporary employment agencies. It has an obligation not to create the hazard. or should have known of the hazard. (4) controlling employer. OSHA Instruction CPL 2-0. it would not be called a “creating employer. by definition. Thus. or. Step One: Determine for each employer which of the following four categories it comes under: (1) creating employer.124 clarified the agency’s policy regarding multi-employer citations.C. 1. v.C. No Correction Authority: If the exposing employer has no correction authority it must Page 28 .
S. § 666 (a) 29 U.C. § 666 (d) Penalty Factors The OSH Act provides in 29 U. Controlling Employer: A “controlling employer” is one that has general supervisory authority over the worksite.) $ 7. The penalty limits for the different classifications are: Classification Other Than Serious Serious Repeat Willful Unabated Maximum $ 7.000 per day OSH Act 29 U. 3. For example. including the power to correct safety and health hazards. by exercising control on the worksite.000 min.000 $ 7.C. a controlling employer would need to perform more frequent inspections if the subcontractor had a poor safety history.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.000 ($5. A controlling employer can be cited if it fails to exercise reasonable care in preventing and detecting violations on the site. such as guardrails. For example. The correcting employer can be cited if it fails to exercise reasonable care in preventing.C. 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. Page 29 .S.S. 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. as the exposing employer and is responsible for correcting the hazard.OSHAGUIDE.S. The good faith of the employer.S.000 $70. 2.000 $70. or on the same worksite. and The employer’s history of previous violations. in the absence of a specific contract provision. 4.S. § 666 (b) 29 U.C. The size of the business. Correcting Employer: A “correcting employer” is one that is engaged in a common undertaking. discovering and correcting the hazard. The gravity of the violation. § 666 (j) that penalties shall be assessed on the basis of four factors: 1.C. § 666 (c) 29 U. § 666 (a) 29 U. Control can be established by contract or.C. and (3) take reasonable alternative protective measures. In imminent danger situations the exposing employer is expected to remove its employees from the job. a correcting employer might be given responsibility for installing or maintaining safety equipment.
limited access to the hazard. few employees exposed. it is very important during the inspection for the employer to point out those factors which reduce the probability of an accident occurring . The severity assessment is ranked High. OSHA FIRM § IV-C2-d. the use of personal protective equipment (PPE).OSHAGUIDE. Injuries and illnesses not requiring hospitalization and requiring only minor supportive treatment. The Compliance Officer determines the likely “severity” of harm if an accident were to occur and the “probability” of an accident occurring to arrive at the GBP. If the employer qualifies for penalty reductions they will be deducted from the GBP to arrive at a final penalty amount. proximity of employees to the hazardous conditions.g. limited exposure during the day. whether the employer has a medical surveillance program. 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. other pertinent working conditions. The likelihood of injury or illness is relatively low.e.. Greater Lesser The likelihood of injury or illness is relatively high. Medium and Low: High Medium Death. Low Probability: The probability of an injury or illness occurring is categorized either as “greater” or “lesser.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. Injuries and illnesses resulting in hospitalization or a variable but limited period of disability. Page 30 . OSHA FIRM § IV-C-2-e. etc. permanently disabling injuries. Accordingly. 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. chronic. frequency and duration of exposure. irreversible injuries.” OSHA FIRM § IV-C-2-f-1.
000 Probability Lesser Greater OSHA defines the “gravity” of a violation by the GBP.C. Size of the Employer OSHA’s Field Inspection Reference Manual (FIRM) allows penalty reductions based on the size of the employer..S. The employer can receive a 25% reduction if it has implemented “an Page 31 . the good faith of the employer and the employer’s history of previous violations.000 SERIOUS Severity Rating Low Medium High $1. OSHA FIRM § IV-C-2-i-(5)-(b). These other factors can result in adjustments (i.000 or greater GBP of $2.000 to $3.500 $2.000 $2.500 $2. after considering severity and probability factors.500 $3. § 666 (j).OSHAGUIDE. The Table below illustrates: GRAVITY-BASED PENALTY (GBP) TABLE – unadjusted GBP OTHER THAN SERIOUS Probability No Severity Rating Lesser $0 Greater $1. will arrive at an unadjusted gravity-based penalty (GBP). reductions) to the unadjusted gravity-based penalty (GBP).e.500 GBP of $1.500 Penalty Reductions The OSH Act states that other penalty factors to consider are the size of the business. 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.000 -$7.500 $5. High Gravity Moderate Gravity Low Gravity GBP of $5.COM Gravity-Based Penalty (GBP) The Compliance Officer. OSHA FIRM § IV-C-2-i-(5)-(a).000 -$7. After deducting adjustments. 29 U. the Compliance Officer then arrives at the final GBP.
000 ($3. Calculating Repeat & Willful Penalties Penalties for Repeat Violations The penalty for a repeat violation is based on the unadjusted gravity-based penalty (GBP) of the underlying violation which is classified as “Serious” or “Other Than Serious. willful or repeated violations in the past three years.OSHAGUIDE. For example.500 GBP x 4). 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. OSHA FIRM § IV-C-2-i-(5)-(c). 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. A 15% reduction is allowed if the employer has a written safety program that is overall effective but has more than just incidental deficiencies. if the GBP for a “Serious” violation found during the current inspection is $3. See GBP Table at Page 30.000 max.” OSHA FIRM § IV-C-2-l-(1). Penalties for Repeat of an “Other Than Serious” Violation 1st Repeat 2nd Repeat 3rd Repeat $200 $500 $1. History of Previous Violations A 10% reduction is allowed for employers who have not been cited by OSHA for any serious. the penalty for a smaller employer violating the same standard for the third time (2nd repeat) would be $14.COM efficient safety and health program” or the safety program “has deficiencies that are only incidental. However.000 max.000 Page 32 . Repeat violations are only eligible for a penalty adjustment based on size of the employer.” 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.500 (greater probability – medium severity). 5 2nd Repeat GBP x 4 If more deterrence GBPx 10 needed $70.
Compliance Officers just refer to the following Table in the OSHA FIRM to determine the penalty for willful serious violations: Penalties to be Proposed for Willful Serious Violations Reduction Percentage 0% 10% 20% 30% 40% High $70.000 $42.000 to $3. 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. See GBP Table at Page 29. Id. for willful violations. For willful “Other Than Serious” violations.000 $36.500 GBP of $1.COM Penalties for Willful Violations OSHA calculates the penalty of a willful violation based upon the “gravity” of the underlying “Serious” violation.000 Moderate $55.OSHAGUIDE.000 $32. OSHA uses a $25. However. each instance of the violation is still separately set out within that item of the citation. History adjustments are at the normal rate.000 Low $40.000 minimum penalty.000 $28. Thus. A citation “item” is listed on the face of the citation for each violation. High Gravity Moderate Gravity Low Gravity GBP of $5. OSHA FIRM § IV-C-2-m-(1). OSHA FIRM § III-C-5-a.000 $25.500 However.500 $33. Good faith adjustments are not allowed at all.000 $38. In practice. For Page 33 . size adjustments are at one-half of the normal amount.500 $44.000 Gravity Combining & Grouping Violations Combined or grouped violations are normally considered as one violation and are assessed one gravity-based penalty (GBP).000 $49. OSHA FIRM § IV-C-2-h. Each item on the citation has a corresponding penalty and correction date.000 $56.000 or greater GBP of $2.000 minimum penalty mandated by the OSH Act. Combined Violations “Combining” refers to OSHA’s practice of taking multiple violations of a single standard having the same classification and combining it into one alleged citation item.000 $49.000 $63. OSHA uses the $5.
However. OSHA will fine the employer for each instance of the violation even though they apply to the same standard. detailing how the guarding standard was violated on that particular machine. OSHA FIRM § IV-C-3. on the face of the citation there is one heading with a corresponding penalty and correction date. The egregious penalty structure is the mirror opposite of the penalty procedure for combined violations. those same mistakes taken together result in the airplane’s crash. Page 34 . 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. In practice.00 Correct by 10/15/03. instead of one paragraph below the heading describing the violation.OSHAGUIDE. violations of different standards. Below the item heading will be five separate paragraphs.g. grouping usually results in a higher gravity-based penalty (GBP) because it raises the level of probability and/or severity. The egregious penalty structure is also referred to as “per-instance” or “violation-by-violation” penalties. For example. OSHA FIRM § III-C-5-b. For example. Perhaps an analogy would be an airplane crash.COM example. one for each of the five machines. When multiple violations of the same standard are combined into a single item.” Below the heading will be a paragraph describing the conduct that resulted in the violation. five separate machines left unguarded in the same manner). However. Egregious Penalties In egregious cases.. In both cases the same safety standard is involved. the Compliance Officer can look at all of the violations collectively to determine the gravity of harm. Thus.120 $2. a single item on a citation might have the heading. each of those mistakes would not result in an accident. there will be multiple paragraphs – one paragraph for each instance of the violation. The term “instance” is not defined but when read in context with other provisions of the OSHA FIRM using that term. However. might result in a low severity rating. Grouped Violations “Grouping” refers to OSHA’s practice of lumping together violations of different standards into a single citation item if those violations all contribute to form a single hazard. The item heading on the citation will cite the machine guarding standard only once and there will be one penalty and one correction date. Individually. if taken individually. those five violations will be combined to form a single citation item. However. the gravity of harm is much greater when the mistakes are grouped together.500. OSHA FIRM § III-C-5-c-(4). “Item 1-1 Failure to Bolt 29 CFR 1926. it is evident that “instance” refers to each time a particular standard is violated. if there are five separate violations of the same machine guarding standard (e. if those violations all contribute to form a single hazard. The crash might be the result of many small mistakes.
then each instance of the violation will result in a separate citation item.000 x 11). The employer has intentionally disregarded its safety and health responsibilities. 2. Page 35 .5 million dollars. Eric K. 29. 6. Multiple instances of violating the same standard. and (2) failure to provide employee training under the asbestos standard to those same eleven employees.000. The underlying violations which served as the basis for the egregious penalties concerned: (1) the employer’s failure to provide respirators to eleven employees during a Class I asbestos job.” The factors that OSHA examines in determining whether egregious penalties should be applied are found in OSHA Instruction CPL 2. The violations resulted in persistently high rates of worker injuries or illnesses. 2003). 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. then the total penalty arising from just that one standard would be $770. a work-site catastrophe.COM For example. In the Ho decision. The egregious penalty structure has come under increased scrutiny because of a relatively recent court decision by the Occupational Safety & Health Review Commission (OSHRC). or a large number of injuries or illnesses.1101(k)(9)(i) and (k)(9)(viii) which pertained to the 11 alleged failure to train violations. if the employer’s conduct is determined to be egregious. OSHA deemed the employer’s conduct egregious and assessed “per-instance” penalties on a “per-employee” basis which resulted in a citation totaling 1. 5. However. _____ OSHC _______ (Sept.000 ($70. would normally be combined to form a single citation item with one penalty of $70.1 The OSHRC held that “per-instance” penalties on a “per-employee” basis 1 The cited standards were former 29 CFR 1926.80. The employer’s conduct taken as a whole amounts to clear bad faith in the performance of his or her duties under the Act. which provides that the violations under consideration must be willful AND at least one of the following other categories must also apply: 1. 4. Ho.000. The violations resulted in worker fatalities. a willful violation of a particular standard might result in a penalty of $70. If willful penalties can be called OSHA’s enforcement “hammer” then the egregious penalty structure is OSHA’s “sledge hammer. The employer has an extensive history of prior violations of the Act. If there were eleven instances. 3.1101(h)(1)(i) which pertained to the 11 alleged respirator violations and 29 CFR 1926.OSHAGUIDE.
Inc. However. the OSHRC felt that this was a phrase of “inclusiveness” referring to all employees within the protected class. we cannot allow harsh facts to result in bad law – a result which would clearly follow should we accept the Secretary’s proposed penalties. 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. 3.2 OSHA relied on both cases as supporting penalties on a per-employee basis.” 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. In fact.. On the one hand. 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.” However. The OSHRC distinguished Caterpillar because it was one of the early “per-instance” cases assessing penalties for individual record keeping infractions. The employer’s conduct was not egregious and penalties were assessed “perinstance” – not “per-employee.” Hartford Roofing was distinguished because it did not support penalties on a per-employee basis.COM were not appropriate in this particular case.OSHAGUIDE. Page 36 . OSHA contended that separate violations occurred “per employee. the standards by their plain terms do not provide employers with fair notice that they may be penalized on a per-employee basis. “where a single practice method or condition affects multiple employees.” 2.” 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. Inc. 17 OSHC 1361 (1995). 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 determining whether the underlying standards were addressed to employees as a class or individually. 15 OSHC 2153 (1993) and Hartford Roofing. OSHA was unable to provide a consistent interpretation as to what constituted an individual instance of the violation. There was no dispute that the employer was what one could only charitably call a “bad actor. there can be only one violation of the standard.. Hartford Roofing held just the opposite and stated. Caterpillar and Hartford Roofing. The respirator standard merely stated that the employer shall provide respirators and ensure their use “during all Class 1 asbestos jobs. Caterpillar had nothing to do at all with tying “per-instance” penalties to the alleged egregious conduct of the employer.” On the other hand. not individually. OSHA misinterpreted two of the lead cases discussing “per-instance” penalties. The plain language of the respirator and employee training standards addressed employees as a group. Thus.
29 U.000 or six months imprisonment. or both. imprisoned up to one year. 4. U. The fines are called “Proposed Penalties” because they are just that.” 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. Court of Appeals. CRIMINAL PENALTIES Under the OSH Act.C. or both. employers are penalized differently for the same violative conduct merely because OSHA determines some of them to be “bad actors. This is commonly referred to as a “criminal willful violation.S. However. representations or certifications to OSHA Criminal penalties of $10. On December 8. General Duty Clause violations are exempt from criminal liability. Quite the contrary.” [Although not expressly stated by the Commission. per-day basis.”] 5. may run afoul of their sense of “equal treatment under the law. False statements. OSHA could conceivably cite an employer on a per-employee. § 666 (e). employers can be criminally prosecuted if they willfully violate a specific safety standard that causes the death of an employee. Page 37 . it appears that the egregious policy. OSHA Administrator John Henshaw issued a statement announcing that OSHA was appealing the Ho decision to the Fifth Circuit. In the absence of a consistently applied interpretation.000. employers are also subject to criminal penalties in certain situations. OSHA was incorrect that the OSHRC must defer to the agency’s decision to prosecute a case on a per-employee basis. Giving advance notice of an inspection Any person who gives advance notice of an inspection can be fined up to $1. 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.S. imprisonment up to one year. as currently applied. § 666 (f). 2003.C.COM respiratory protection. Congress expressly granted to the OSHRC the sole authority to determine penalties.S. A second conviction is punishable by a fine of up to $20. can be imposed for knowingly making any false statement. The OSHRC noted that they were not bound by OSHA’s proposed penalties. the employer may be liable for a fine of up to $10. six months in prison.OSHAGUIDE. or both. 29 U. The OSHRC felt that OSHA’s interpretations conflicted because under the latter interpretation.000. proposals by OSHA. or both.000.
The employer must give OSHA written notice that it disagrees with the citation.C. Page 38 . The criminal sanctions can double if a dangerous weapon is used.17 (a).. reversed on other grounds 510 NE2d 1173 (Ill.COM representation. described more fully in the prior section of the manual discussing EEPs. liability is based on general criminal statutes.” The employer has the right to contest the citation if it disagrees with any of the following: (1) the alleged violations. 1987). 29 U. courts have been rejecting such “preemption” arguments. or both.000. Dec.OSHAGUIDE. Chicago Magnet Wire Corp. § 666 (g). App. or certification in any application. § 659 (a) . 29 U. However. record. 128 Ill. Forcibly Resisting or Assaulting a Compliance Officer Any person who forcibly resists or assaults Department of Labor personnel (e.” THE EMPLOYER MUST FILE A WRITTEN NOTICE OF CONTEST WITHIN FIFTEEN (15) WORKING DAYS OF THE EMPLOYER’S RECEIPT OF THE CITATION AND NOTIFICATION OF PENALTY. The Notice of Contest is submitted to the OSHA Area Director.S. denied 493 US 809 (1989. 29 CFR § 1903. The term “working days” excludes Saturdays. 534 NE2d 962 (1989).17 (a). Criminal prosecution under the federal OSH Act is relatively rare but may increase as a result of OSHA’s Enhanced Enforcement Program (EEP).C. Sundays and federal holidays.21 (c). CONTESTING A CITATION Filing the Notice of Contest If the Compliance Officer observes safety or health violations. More common is criminal prosecution in States with State Plans. The filing is timely if it is postmarked within the 15-day period. 29 CFR § 1903. or. The citation document is formally called a “Citation and Notification of Penalty. In States which opted out of federal enforcement but do not have approved State Plans. Employers may also be subject to criminal liability under State statutes in addition to the criminal sanctions imposed under the OSH Act. In States with federally approved State Plans prosecutors enforce the criminal sanctions of those plans.g. cert. (2) the abatement period. See Illinois v. A civil monetary penalty for each of the violations will also likely be assessed. 126 Ill. plan or other document required by the OSH Act. impris0ned up to three years.S. (3) the penalty amounts. 517. a citation will be issued setting dates of correction for each of the violations.2d 356. OSHA Compliance Officers) can be fined up to $5. 29 CFR § 1903. The employer’s written notification is formally called a “Notice of Contest. Some employers have argued that the criminal provisions of the OSH Act preempt State criminal statutes.
and/or proposed penalties.)” WARNING: Many jurisdictions NOT regulated by federal OSHA.17 (a). However.COM Regular first-class mail is sufficient for filing. If the employer concedes that the violations occurred. A better practice is to send the Notice of Contest by certified mail. the employer is still required to abate the violations within the specified abatement period if it is only contesting the penalty amounts. An example of broad. Even so. The primary purpose of the informal conference is to discuss the alleged violations. employers will often present mitigating factual information that was not brought to light or focused on during the inspection. This is because a general violation is more subject to providing the foundation for a repeat violation. 1903. The request should be submitted to the OSHA Area Director. return receipt requested. many employers favor broadly worded Notices of Contest. “(Insert employer name) disagrees with and contests all alleged violations. OSHA will hold the informal conference before the expiration of the 15working-day contest period. the employer must make sure that the Notice of Contest is timely filed even if settlement appears close. 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. The written Notice of Contest does not need to be in any particular format. Informal Conference After receiving the citation. 29 CFR § 1903.20. the employer can request an informal conference with OSHA. abatement period..15 (a).S. it must clearly identify the employer’s basis for filing the Notice of Contest – i. Failure to contest part of citation can be considered a waiver of any defenses to that portion of the citation. 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. do not accept broad contest language. The informal conference will not stay the 15-working-day period in which to file a Notice of Contest. However.” 29 U. most employers use the informal conference to negotiate an informal settlement agreement with OSHA.OSHAGUIDE. If the citation is contested. Thus. general contest language is.C. To facilitate settlement. However. abatement dates. whether the employer disagrees with the citation. and to correct errors contained in the citation. 29 CFR § 1903. most notably California. 29 CFR §§ 1903. Thus. proposed penalties. citations. Case Referral & Pleadings Page 39 . § 659(b). Employers also will sometimes request that a general violation be reclassified as a specific violation. it can use the informal conference to extend the abatement dates.18 (a).e.
Rulings concerning the admission of evidence and on submitted motions can seriously affect the outcome of a particular case. The parties are entitled to 30 days advance notice of any hearing. Hearing Procedure The OSHRC assigns the case to an Administrative Law Judge (ALJ) who schedule and preside at the hearing. In the absence of OSHRC rules. The employer’s answer must also include any affirmative defenses that it wishes to raise. There is no formal mediation under the OSH Act or the procedural rules of the OSHRC. etc. greater hazard.2. § 661 (f). The complaint sets forth the alleged violations and the rationale behind the abatement period and penalty amounts. 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.g. However. Employers and employees both have the right to participate in the hearing. Employers can represent themselves or be represented by attorneys. 29 CFR § 2200. 29 U. 29 CFR § 2200. litigation of contested citations is becoming increasingly complex and hearings are conducted pursuant to the procedural rules set forth by the OSHRC. However. The OSHRC encourages settlement at this level. Within 20 days of receiving the Notice of Contest.51 (b). 29 CFR § 2200.60.COM The OSHA Area Director within 15 days of receiving the Notice of Contest. the Federal Rules of Evidence apply. Attorneys represent OSHA. It provides the initial forum for hearing contested cases under the OSH Act. employee misconduct.OSHAGUIDE.34 (a)(2). Legal representation is especially advisable if the employer has a problem with repeat violations.33. will refer the case to the Occupational Safety Health & Review Commission (OSHRC). The employer’s answer is a plain statement denying all allegations in the complaint that it wishes to contest. etc.34 (b)(4). A few weeks following the answer. The OSHRC is an independent agency not affiliated with OSHA or the Department of Labor. the employer might wish to have an attorney present to ensure a level playing field. 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. OSHA must file a complaint with the OSHRC. 29 CFR § 2200. 29 CFR § 2200. Accordingly. OSHA has the burden of proving each of the elements of the violations listed in the citation.S. 29 CFR § 2200. time and location. 29 CFR § 2200. the parties can sometimes accomplish much the same purpose by requesting a pre-hearing conference with the ALJ. At hearing.34 (a).34 (b)(3).34 (b)(1). 29 CFR § 2200. The employer has the burden of proving any Page 40 .e. This document advises the parties of the hearing date. It also gives the parties instructions for the conduct of the hearing including the exchange of evidence.. 29 CFR § 2200. 29 CFR § 2200. the ALJ will mail the parties a Notice of Hearing and Instructions.C.34 (b)(2).
S. Hearing expected to take less than two days. No fatality.200 (a). the OSHRC introduced the E-Z Trial procedure. The ALJ’s recommended decision is also filed with the OSHRC. Relatively few citation items. 3. 29 U. The ALJ’s decision is contrary to law. 29 CFR § 2200. or 4. 4.91 (b). 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. A prejudicial error was committed. 29 CFR § 2200.COM affirmative defenses. 29 CFR § 2200. 2. E-Z Trial In 1995.69. cases must not involve complex factual or legal issues.S. The OSHRC then has 30 days to adopt the ALJ’s decision or recommend review by the full Commission. The parties can file written briefs with the ALJ and request transcripts of the hearing to facilitate preparation of the briefs. § 660 (a).C. The ALJ made findings of fact not supported by a preponderance of the evidence. it has 60 days to appeal the order to the appropriate U. 29 CFR § 2200. Circuit Court of Appeals. Page 41 .66. § 661 (j).91. Each of the parties can call witnesses. Proposed penalty less than $10. Such cases generally include one or more of the following characteristics: 1. The ALJ can recommend that the citation items and/or penalties be affirmed. Its purpose is to provide a simpler and less expensive method of resolving less complex contested citations. 2.C. 29 CFR § 2200. After considering the evidence. 5. The party with the burden of proof must establish the fact by a “preponderance of evidence” (more probable than not). To be eligible.000. If the employer disagrees with the final order.OSHAGUIDE. The grounds for review are as follows: 1. the ALJ makes a recommended decision that is transmitted to the parties. 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. No willful or repeat violations. 3. A substantial question of law. 29 U.S.90. policy or abuse of discretion is involved. The employer can also file a Petition for Discretionary Review by the OSHRC. modified or eliminated. 29 CFR § 2200.
applicability of the standard. Precision Concrete Construcion. N & N Contractors.. 1998). Thus. .A. Collins Construction Co. There are times when the Compliance Officer may not properly understand the applicable rules. employees were exposed or had access to the hazard. This is understandable because the rules are vast and cover several industries and innumerable processes.3d 122 (4th Cir. Federal Rules of Evidence do not apply. the cited standard applies. EMPLOYER DEFENSES Attacking OSHA’s Burden of Proof The best defense is a weak offense .. 2001). they are elements that OSHA must prove to establish a violation. Saugus Construction Corp.COM E-Z Trial procedures are simplified in a number of ways: Complaints and answers are not required. of the hazardous condition.OSHAGUIDE. Discovery is not permitted except as ordered by the ALJ. 3. OSHRC. Carbone Construction Co. non-compliance with the standard. Inc. 1997).3d 815 (6th Cir. . the most effective defense is to demonstrate that OSHA failed to produce sufficient evidence of one or more of the elements -. 19 OSHC 1404 (2001). employee exposure to the hazard. v. Applicability of the Standard & Non-compliance Applicability of the Standard: OSHA must show that the cited standard is applicable.2d 69 (1st Cir. OSHRC. ALJ usually issues decision from the bench. Hearings are less formal. affirmed in part 681 F. Oral arguments instead of written briefs. 2. the employer knew. The above items are not “defenses” that the employer has to prove.3d 691 (2d Cir. Secretary of Labor. R.P. 19 OSHC 1431 (2001). by OSHA.i.. 255 F. Astra Pharmaceutical Products. v. and employer knowledge. Inc. 166 F.. 117 F. or with reasonable diligence should have known.e. 4. Rather. and. 1982). the employer failed to comply with the cited standard. OSHA provides employer with documents early in the proceeding. OSHA must prove the following elements by a preponderance of the evidence to establish a violation: 1. v. D. 9 OSHC 2126 (1981). A Compliance Page 42 .
experts can explain that the employer was in compliance given a correct interpretation of the standard. D. For example. the employer can often use expert testimony to its advantage. 2001).e. experts can demonstrate that the employer was actually in compliance given the employer’s particular set of circumstances. the zone of danger. 255 F. the employer will often have several experts within it’s own company (e. OSHA generally relies on testimony from the Compliance Officer and the officer’s inspection report to establish its case. this becomes a “battle of the experts” between the Compliance Officer and the employer expert.” The early cases often focused on “employee access” to the area and the boundaries of the danger zone.COM Officer is by nature a generalist and cannot be expected to be an expert in all fields.T. training dates omitted.g.. it is always recommended that the employer review the inspection report with the employees interviewed by OSHA to check for errors. Accordingly.OSHAGUIDE. Even so. Thus. OSHRC. The Compliance Officer often has less comparative expertise than the employer expert in the employer’s particular field.” On the other hand. 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. In other words. it was not actually violated. Non-compliance with the Standard: Employer experts can sometimes show that.. N&N Contractors.). Lack of employee exposure can sometimes be established by showing that employees did Page 43 . this is their business. even if the standard applied. Employee Exposure Traditionally.3d 122 (4th Cir. or will contact. lack of employee access still bears on whether exposure was reasonably predictable. “potential” exposure is gaining more acceptance. Some Compliance Officers may have prior experience in private industry but not usually to the extent that their testimony would be considered “expert testimony.i. licensed engineers. v. Construction Co. Accordingly. certified safety professionals. 19 OSHC 1503 (2001). The inspection report often contains employee statements paraphrased in written notes by the Compliance Officer. There have been instances where machines were misidentified. After all. An employer expert can sometimes show that the cited standard did not apply. There are also situations where non-compliance is based on faulty factual information. However. Early federal cases held that in order for employee exposure to exist there must be direct physical endangerment . the paraphrased statements might be inaccurate or incomplete. etc. Essentially. evidence that the employee was actually in the “zone of danger.. The more recent trend is that OSHA need only show that it is “reasonably predictable” that employees have contacted. Likewise. 19 OHSC 1305 (2000). the issue has been whether OSHA must show “actual” employee exposure versus “potential” employee exposure. Inc. etc. S&G Packaging Co.
See also Secretary of Labor v. barriers. 295 F. or with the exercise of reasonable diligence should have known. 19 OSHC 1503 (2001). In other words. An employer cannot defeat the knowledge requirement by being willfully ignorant of his surroundings. an employer will be presumed to have “constructive knowledge” if the condition could have been discovered with reasonable diligence... OSHA then has the burden of showing that the employer’s failure to discover the condition was due to a lack of reasonable diligence. OSHA led the employer “down the garden path” by letting it believe that it was in compliance. 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. of the violative condition.OSHAGUIDE. Accordingly. The employer knowledge requirement does not refer to employer knowledge of the applicable safety codes.3d 1232 (11th Cir. The courts have been rejecting such arguments.COM not have access to the area of the alleged hazard because it was protected by guards.. 19 OSHC 2001 (2002). 29 CFR § 2200. 18 OSHC 2121 (2000). In this situation.C. of the violative condition... 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. Fluor Daniel v. If he knew of the condition he had knowledge. Procedural Defenses Defective Inspection OSHA must follow certain procedures when it performs an inspection. OSHRC. Thus. The lack of employer knowledge can sometimes be established if the employer (including supervisory staff) were unaware of the hazard.73 (a). or constructive knowledge. 19 OSHC 1015 (2000). etc. 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. S&G Packaging Co. § 666 (k). the issue is whether the employer had knowledge. the employer must show that it conducted adequate safety inspections but still failed to discover the violative condition. N & N Contractors Inc. Trinity Marine Nashville Inc. Employer Knowledge OSHA must prove that the employer knew. Ingram Plastering Co. Ragnar Benson Inc. employer knowledge defenses generally only succeed if the lack of knowledge was reasonable. warning signs. Procedural arguments usually fail unless OSHA did Page 44 . If he did not know of the condition he may come across as uninvolved or exhibiting a failure to train and supervise. 2002). 29 U. Rather. 18 OSHC 1937 (1999). The constructive knowledge problem presents something of a “Catch-22” for the employer.S.
The Compliance Officer then “grabs” a foreman and conducts the inspection anyway.OSHAGUIDE. If no credentials were presented at all. & I. Inspections are still proper.COM not substantially comply with procedural requirements and. Early cases focused on whether the employer’s right of accompaniment.2d 809 (10th Cir.S. although the presentation occurred one hour after the inspection began.. the courts will examine whether this failure resulted in substantial prejudice to the employer. Accu-Namics. In order for prejudice to occur.k.. 1 OSHC 1751 (1974). Steel Corp. an employer could conceivably argue that there was no substantial compliance if credentials were presented well after the inspection began.C.2d 357 (4th Cir. Inc. further. Drum Construction Co. OSHA’s failure to comply prejudiced the employer.. § 657 (a).2d 828 (5th Cir. supra.a. [See this manual’s prior discussion of privacy interests in the section “Warrant Exceptions. § 657 (e). or agent in charge of the workplace. OSHRC.S. The courts never reached a clear consensus on this Page 45 . OSHRC. 1975) cert. 1977) (foreman was deemed agent in charge).” 29 U. 553 F.F. the Fourth Amendment right to privacy must apply. Accu-Namics. 18 OSHC 1927 (1999).C. Dorey Electric Co. the Compliance Officer will present his or her “credentials” which usually consists of an official badge or OSHA identification card. In practice.S. This issue most often arises in cases where the premises owner and/or senior management officials are absent from the workplace. 576 F.S.” 29 U. Upon arrival. “walkaround rights. 903 (1976). 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. Some employers have argued that an improper inspection resulted if the Compliance Officer presented credentials to the wrong person. OSHA contends that such inspections are permissible because the Compliance Officer presented credentials to the “agent in charge of the workplace. a. Thus. Inc. denied 425 U.”] Impairing the Employer’s Walkaround Rights: The OSH Act provides that an employer representative “shall be given an opportunity to accompany” the Compliance Officer during the inspection “for the purpose of aiding such inspection. v.. Inc.” 29 U. 516 F. the presentation of OSHA credentials is similar to a police officer “flashing his badge” to prove his identity.. The OSHRC has held that. Marshall v. because there is no right to privacy if the violations occurred in public or in plain view of the Compliance Officer. despite the failure to present credentials. 1978) (most “senior employee” left at the site deemed agent in charge).C. C. Accu-Namics. the Compliance Officer substantially complied with the credentials requirement..” were mandatory or optional. Improper Presentation of Credentials: The OSH Act conditions an inspection upon the proper presentation of credentials to the “owner. operator. § 657 (a). A similar issue involves the late presentation of credentials after the beginning of the inspection. Inc. v.
.2d 67 (2nd Cir. 19 OSHC 2060 (2002). the lack of employer prejudice appears to outweigh the Compliance Officer’s failure to substantially comply with inspection procedures. the emphasis shifted to whether there was substantial compliance by OSHA and whether the employer was prejudiced. a longstanding violation can be cited as long as employees were exposed to the hazard in the six months preceding the citation.2d 371 (7th Cir. § 658 (c). Accordingly.E. General Electric Co. Apparently. Secretary of Labor v. OSHRC. denied 425 U. v. Wylie Construction Co. 1976).S.OSHAGUIDE.. Thomas A. Defective Citation Late Citation – Statute of Limitations: A citation cannot be issued more than “six months following the occurrence of any violation. Instead. It is insufficient for the Compliance Officer merely to surmise that employees were “probably” exposed to the hazard. Presumably. There also would be no prejudice if the employer affirmatively waived its walkaround rights by declining to participate in the inspection.” 29 U. 1977). Chicago Bridge & Iron Co. A constructive waiver would occur if the employer was aware of the inspection but refused to cooperate or participate in the inspection. the Compliance Officer took photographs from the parking lot before presenting himself to the company office. Even so. Inc. even though a hazard existed. On the other hand. 516 F. The OSHRC rejected the employer’s argument that its walkaround rights were violated on the grounds that the employer was not prejudiced. 560 F. 903 (1976). prejudice would occur if the employer was unaware of the inspection and. employees did not have access to the hazard during the six-month period.2d 828 (5th Cir.. Inc. 535 F. there would be no prejudice if the employer constructively waived its walkaround rights. Likewise.C. unable to assert its walkaround rights and present mitigating information. It appears that the most common method of computing the six-month period is to count forward from the date of the inspection. 1 OSHC 1751 (1974). 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. Marshall v. the cases also suggest that the employer would be prejudiced if OSHA refused the employer’s request to participate in the inspection. Thus. 1975) cert. Id. 540 F. In practice. there was no mitigating information that could explain away the photographs. the six-month period generally begins to run on the day that the Page 46 . therefore. v. Inc. Western Waterproofing Co. In one recent case. C. Accu-Namics.COM issue.. OSHRC. v. 7 OSHC 2232 (1979). the employer would be unlikely to prevail if OSHA’s refusal was based on lack of cooperation or obstruction of the inspection.2d 947 (8th Cir. For example it may be the case that. OSHRC. 1976).. a citation would be untimely if OSHA failed to produce evidence that the standard was violated in the six-month period between the inspection and the citation. Prejudice is normally considered the employer’s opportunity to present mitigating factual information during the inspection. Conversely. One court also has held that there is no prejudice if the employer can present the same mitigating factual information at the hearing.S. Accu-Namics. Galante & Sons. However.
4.E. Meyers Co.C.2d 926 (7th Cir. the criminal statute of limitations applies which is usually the five-year statute of limitations for federal non-capital crimes. B. In this situation.S. 801 F. the employer has the burden of proving the following affirmative defenses: 1. Inc. rule. the citation must describe the hazardous condition sufficiently enough to put the employer on notice of what must be corrected.W.S.2d 1303 (5th Cir.. Brock v. Harrison Lumber Co. In short. Accordingly. Dow Chemical U.” 29 U. Rather. § 658 (a). an employer also might be able to argue “lack of particularity” in the original citation in a subsequent citation for failure to abate. v. Implementing the safety standard is not feasible. regulation. or order alleged to have been violated.S.A. therefore. The Page 47 . 298 F. Lack of Particularity – Citation Too Vague: The citation must “describe with particularity the nature of the violation. 18 OSHC 1323 (1998). L & B Products Corp.. Compliance increases the hazard. Affirmative Defenses An “Affirmative Defense” means that the employer has the burden of proof.” etc.. The employer must show prejudice to assert the “lack of particularity” defense. This satisfies the due process requirement that the employer have fair notice of the alleged violations so that it can prepare an adequate defense. § 3238. 1986).3d 256 (3d Cir. Citing the standard and providing a description of the violation also provides the employer with sufficient information for abatement. hampered the employer’s ability to prepare a defense. the strongest affirmative defense is “Employee Misconduct. L. 2002). “prejudice” would mean that the citation was too vague and. and. Employers should be aware that the six-month “statute of limitations” for citations does not apply to criminal violations of the OSH Act. perhaps.C. The violation is the result of employee misconduct.” This defense also goes by several other names such as “Unpreventable Employee Misconduct. the citation must reference the safety standard and describe how the standard was violated. 3. 569 F. More specific safety standards apply. standard. Employee Misconduct The most frequently used and.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. 3 OSHC 1026 (1975). 1978)..OSHAGUIDE. Alden Leeds. 18 U. In other words. including a reference to the provision of the Act. 2.” “Isolated Incident Defense. OSHRC. Similarly.. See Marshall v.
15 OSHC 1809 (1992). Infeasibility/impossibility is a tough burden for the employer to meet. 221 F. “Technological Infeasibility” means that it is technologically impossible to make a machine or process comply with current standards. of Leesville. In practice. OSHRC. Supervisor Misconduct: A supervisor’s misconduct will very rarely shield the employer from safety violations.OSHAGUIDE. As a result. 2000). 1988). 107 F. mere inconvenience or added Page 48 . Brock v. (2) the work rules were effectively communicated to the employees.A. Inc. George Campbell Painting Corp..e. 117 F. 1997). 19 OSHC 1311 (2000). v. CMC Electric.. 1979). v. 843 F. Inc.2d 453 (1st Cir.. Reynolds Inc.2d 1135 (8th Cir. OSHA.COM essence of this affirmative defense is that the employee violated company safety policies and that such conduct was not preventable.3d 861 (6th Cir. 18 OHSC 1929 (1999). Similarly. v. D. 19 OHSC 1653 (2001). 7 OSHC 1477 (1979). (3) the employer took steps to discover violations of the work rules. Infeasibility/Impossibility This defense requires the employer to prove that compliance with the standard is not feasible. Stevedoring Services of America. 1 OSHC 1412 (1973). Pride Oil Well Serv. “Practical Infeasibility” means that compliance would not be practical because it would be impossible to perform the work . the employer must prove: (1) it had work rules designed to prevent such conduct. General Dynamics Corp. There must be some evidence that the employer actually enforced the safety program when it was violated. Secretary of Labor. It is not enough that the employer has a safety program written on paper. The net effect is that employers face greater liability for supervisory misconduct. The second reason is that the actions of the supervisor are often imputed to the employer. Collins Construction Co. Gioioso & Sons.3d 100 (1st Cir. 115 F. The defense fails if compliance is possible. this means that the employer’s safety program goes on trial..g. DunPar Engineered Form Co. 18 OSHC 1815 (1999). Southern Soya Corp. Secretary of Labor. To establish an employee misconduct defense. “Economic Infeasibility” means that the cost of compliance would be prohibitive. v... E&R Erectors. 1997). Raytheon Constructors. Inc. Jensen Construction Co. v.3d 691 (2nd Cir. There are three types of infeasibility. 599 F. cannot erect guards because of limited work space. some employers have argued that the disobedient supervisor was actually an employee in order to take advantage of the employee misconduct defense... There are two reasons for this.3d 157 (3rd Cir. 1997). and (4) the work rules were adequately enforced when they were violated. P. The first reason is that supervisor misconduct can be evidence that the employer’s safety program was not effective or adequately enforced. Inc. 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. OSHRC.
Herman. 8 OSHC 1378 (1980). 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. the employer is subject to safety and health regulations promulgated by the other federal agency instead of OSHA. Thus.2d 186 (D. 1994). 31 F. 20 F. 585 F. In that case. 122 S. Inc. the employer must establish that there are no alternative means of employee protection and that a variance application was inappropriate or rejected. Williams Enterprises Inc. Mallard Bay Drilling. employers may have a defense if they reasonably believed that other federal regulation applied. 876 F. In addition to proving the greater hazard. 235.. Chao v. OSHA v. 1978). 29 U. Pennsuco Cement & Aggregates. OSHA and several units of the federal government developed an “understanding” concerning those areas over which OSHA would have jurisdiction. However.S.” Even if preemption does not apply. Bancker Construction Corp. Preemption by Another Federal Agency A citation may also be invalid because OSHA does not have jurisdiction over the employer. These “Memoranda of Understanding” can be viewed on OSHA’s website. 738 (2002) (Coast Guard general marine safety regulations did not preempt OSHA standards). OSHA also has jurisdiction over the U. USPS.S. OSHRC. U.C. Cir. the general trend has been for OSHA to assume more control over occupational safety and health. Caterpillar Inc. v.S. It is expected that OSHA’s enforcement powers will continue to expand in relation to the federal government. v. This is known as “preemption.S. Diebold Inc. For example. Loomis Cabinet Co. OSHA does not have jurisdiction where the federal government has maintained control over employee safety and conditions. 131 F.COM expense is not sufficient. 1989).S. v. The court will also examine the degree to which the federal agency actually exercises its authority over safety and health. Marshall. Military. 1994). OSHA now has jurisdiction over all military facilities in the state of New Mexico.C. The U. Page 49 . In areas where no federal standards exist. Reich. 1997). 534 U. Postal Service pursuant to the Postal Employees Safety Enhancement Act of 1998. Inc. despite these memoranda of understanding. OSHA can enforce its own safety standards.S.2d 1327 (6th Cir.3d 666 (7th Cir.. it appears that federal agency preemption only applies where federal agency standards and OSHA standards address the same conditions.. Greater Hazard This defense requires the employer to prove that compliance would be more hazardous than noncompliance.Ct. Dole v. § 653 (b)(1). v. & Others Early on.OSHAGUIDE. OSHA even issued a citation to West Point – the military academy for the U. Army.3d 32 (2nd Cir.3d 938 (9th Cir.
or 2 years upon renewal.COM LOSS PREVENTION SERVICES If the employer wishes to take some precautionary measures prior to an inspection. No penalties are proposed or citations issued for hazards identified by the consultant. The employer’s only obligation is to correct all identified serious hazards within the agreed upon correction time frame. The initial on-site visit will last two to four days and evaluate the effectiveness of the employer’s programs. Employers may also receive training and education services. 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. etc. onsite assistance in developing and implementing effective workplace safety and health management systems. accidents. “Star” level participants are evaluated every 3 to 5 years. as well as limited assistance away from the worksite. Of course.. Page 50 . OSHA consultation assistance will not provide the employer’s name or workplace information to OSHA enforcement. Again. OSHA’s Consultation Service “OSHA’s consultation service provides free. The frequency of the periodic visits depends on the employer’s VPP level. will still be investigated in the usual manner.” “Consultation assistance is available to small employers (with fewer than 250 employees at a fixed site and no more than 500 corporatewide). accidents. etc. will still be investigated in the usual manner. 2002). The program is more demanding but in exchange the employer is granted deferral from all programmed inspections for a period of 1 year initially. OSHA will offer ways to upgrade the employer’s programs and will make periodic visits to monitor the employer’s progress. 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. One of the advantages is that VPP participants are exempt from routine programmed inspections during the period of their participation. 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. complaints. complaints..” VPP Program OSHA’s Voluntary Protection Program (VPP) is basically a more extensive safety consultation. there are a number of services provided: Services Provided by OSHA * The following quoted information is taken directly from OSHA Publication 3000 (Rev. “Merit” level participants are evaluated every 18 months.OSHAGUIDE.
etc. lower workers’ compensation premiums. Since OSPP membership is corporate.COM OSHA’s Strategic Partnership Program (OSPP) “OSHA Strategic Partnerships are alliances among labor. trade and professional associations. They are often used in cases requiring more in-depth assistance than can be provided with workers’ compensation loss prevention services.OSHAGUIDE. Loss Control Consultants are a good resource and can assist the employer in developing and implementing the required safety programs. rather than individual. Loss Control Consultants should be contacted in the event of an inspection. OSPP’s are the newest of OSHA’s cooperative programs. Again. Of course. Limited OSPP’s focus on specific safety and health issues. in some States. Independent Safety Consultants Independent safety consultants are also a good resource. there is no exemption from inspections for partnering worksites. employers. The benefit is combining resources and knowledge within the group to reduce injuries.” There are two types of OSPP’s: Comprehensive and Limited. this type of specialized help does not come free but it is very often well worth the cost. 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. this is at no cost to the employer. universities and other government agencies. management. They keep a log of their contact with the employer and such information can be useful if an inspection occurs. cooperative relationships between OSHA. These partnerships are voluntary. employee representatives. Services Provided by Others Workers’ Compensation Carriers In some States the employer’s workers’ compensation carrier is required to provide free loss prevention services. and government to foster improvements in workplace safety and health. These services are implemented by the carrier’s Loss Control Consultant. Page 51 . Comprehensive OSPP’s concentrate on establishing comprehensive safety programs at partnering worksites. and others such as trade unions.
the employer must notify OSHA that the hazard has been corrected or “abated. unscheduled) inspection made to determine the cause of an accident. Thus. or both.An inspection following the citation to verify abatement of the violations listed in the citation. § 666 (g). After the citation. Answer .An unprogrammed (i. This should be filed as soon as the employer becomes aware of an affirmative defense. Accident Investigation . can be imposed for knowingly making any false statement. ALJ decisions are reviewed by OSHRC which either adopts the ALJ’s opinion or issues a decision of its own. Criminal penalties of $10. Amended Notice of Contest . Amendments are liberally granted. foreperson or other person in charge or control of all or part of the place of employment.e. Administrative Law Judge (ALJ) .C.” OSHA has the option of doing a follow-up inspection to assure that the hazard was corrected.OSHAGUIDE. Affirmative Defense . The employer’s answer is a plain statement denying all allegations in the complaint that it Page 52 . Abatement Certification .The Occupational Safety & Health Review Commission (OSHRC) official who initially decides a contested citation hearing. record. plan or other document required by the OSH Act.A citation changed by OSHA. Abatement Inspection . However.34 (b)(1).000 per day for each day past the correction dates set forth in the citation. Amended Citation .OSHA now requires that the employer submit written Abatement Certification to the OSHA Area Director as proof of abatement.. This person can consent on the employer’s behalf to a warrantless inspection or be the employer representative during an inspection. or certification in any application. representation. 29 U.COM GLOSSARY Abatement .A Notice of Contest that is amended by the employer.The employer must file a written answer within 20 days of being served with OSHA’s complaint. 29 CFR § 2200.The manager. Agent of the Employer . the employer should exercise extreme care when completing abatement certification documents. Penalties for failure to abate (or “nonabatement”) can be as high as $7.A defense in which the employer has the burden of proof. 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.000 or six months imprisonment.The OSHA term for correction of the violation. usually to assert an affirmative defense.S. superintendent.
2nd Circuit.oshaguide. 29 CFR § 2200. For example. etc.Information received by OSHA that a safety standard is being violated.S. The circuit courts are the forum for contested citations on appeal from the Occupational Safety & Health Review Commission (OSHRC). Citation .The legal standard for weighing the evidence. Appeal . Circuit Court – One of the terms used to refer to the United States Courts of Appeal. 29 CFR § 2200. etc. The employer has the burden of proof when it is asserting an affirmative defense. An OSHA Area Office is located in most States. It is more formally called a “Citation and Notification of Penalty.” The citation will usually include penalty amounts and set correction dates for the violations. The Compliance Officer will advise the employer about the specifics of the citation and other related matters.34 (b)(2).34 (b)(4). If the complainant did not request confidentiality.The document issued by OSHA after the inspection to cite violations. Closing Conference . You can go to the “OSHA Links” page at www. Civil Penalties . Courts of Appeal are divided into 12 federal circuits – 1st Circuit. The term “Circuit Court” is sometimes used because the U.34 (b)(3). 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.com to obtain contact information for all OSHA Area Offices.e. Burden of Proof .g. Such information may. Complaint .. Area Director – The Director of an OSHA Area Office. In the case of a contested citation.The conference between the Compliance Officer and the employer conducted after the inspection process is completed. and it is Page 53 . employee misconduct. greater hazard. the standard is the “preponderance of the evidence” (more probable than not).e. Notice of Contest) within 15 days of its receipt of the citation. Combined Violation . seven machines in violation of the same machine-guarding standard would result in only one violation of that standard.This refers to the OSHA practice of combining multiple violations of the same standard into a single violation.The monetary fines assessed by OSHA for safety violations. 29 CFR § 2200. The employer must file the appeal letter (i. Circuit court decisions that are appealed go to the U.OSHAGUIDE.Another term for contesting a citation. The complainant’s identity will be kept confidential if the complainant so requested.COM wishes to contest. OSHA always has the burden of proof in establishing a violation. The employer’s answer must also include any affirmative defenses that it wishes to raise. Supreme Court. result in an inspection. and usually does.S.
Defective Citation .The OSHA employee who conducts the inspection.F.) and are referred to by their federal CFR number (e. Courts of Appeal are divided into 12 federal circuits – 1st Circuit. more formally called a “Compliance Safety & Health Officer” or “CSHO.S. or “contest”. Consultation Service . Complaint Inspection . Compliance Officer (CSHO) . Several States also impose separate criminal penalties under State statutes addressing occupational safety and health.A procedural defense available to the employer when the citation does not comply with statutory or administrative rule requirements. etc. Supreme Court.The term used to refer to the employer’s appeal.Penalties resulting in imprisonment or criminal monetary fines under the Occupational Safety & Health Act.COM disclosed that an employee made the complaint.OSHAGUIDE. 29 CFR 1910. supervisor.A free service provided by OSHA to employers below a certain size for the purposes of assessing work place hazards and to provide training and advice on how to eliminate such hazards. The circuit courts are the forum for contested citations on appeal from the Occupational Safety & Health Review Commission (OSHRC). Criminal Penalties . Circuit court decisions that are appealed go to the U.R. The Compliance Officer must show his credentials to an owner. Court of Appeals . etc.g. It often bears a photograph of the Compliance Officer.001).One of the terms used to refer to the United States Courts of Appeal. Page 54 .OSHA can create and adopt specific safety standards regulating work practices and processes such as fall protection. Contested Case . To prevail. machine guarding. Credentials . The consultation will not directly result in a citation or civil penalty.S. the employer must usually show that OSHA failed to substantially comply with the regulation AND that OSHA’s failure to comply prejudiced the employer. 2nd Circuit. the employer must remember that it is unlawful employment practice to discriminate against an employee for making a complaint. or agent in charge before conducting the inspection.The Compliance Officer’s official OSHA identification card. of the citation. Those standards are found in the Congressional Federal Register (C. This term is sometimes used because the citation requires abatement of the violations and contains correction dates for abatement.An unprogrammed inspection made in response to a complaint.” Congressional Federal Register (CFR) . The term “Circuit Court” is also used because the U. Correction Order – A seldom-used term to refer to a citation.
the closing conference and the inspection. it means that an OSHA standard must be specific enough so that a reasonable person would be put on notice of its requirements.OSHAGUIDE.A de minimus violation is one where a standard is technically violated but it has no direct or immediate relationship to safety or health.The broad category of persons subject to regulation under the OSH Act. De Minimus Violation . This category includes most private and public employees. Egregious Penalty Structure . § 658 (a).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.An affirmative defense available to the employer. If a willful violation is deemed to be egregious then each instance of the violation can be cited separately. 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. 29 U. and (4) the work rules were adequately enforced when they were violated.A programmed comprehensive inspection triggered by a local or national Emphasis Program. OSHA will examine several factors to determine whether a willful violation was also egregious. Due Process .S. (3) the employer took steps to discover violations of the work rules. (2) the work rules were effectively communicated to the employees.A procedural defense available to the employer when the inspection does not comply with statutory or administrative rule requirements. Employer .C. In the OSHA context. To prevail. Emphasis Program . a citation must be specific enough so that a reasonable person would know the manner in which the standards were allegedly violated. Employee Representative .The broad category of persons afforded protection under the OSH Act. the employer must prove: (1) it had work rules designed to prevent such conduct.A penalty structure developed by OSHA to address extreme cases of willful violations. The net result is that the total penalty amount of the citation is significantly increased.COM Defective Inspection . To establish an employee misconduct defense. the employer must usually show that OSHA failed to substantially comply with the regulation AND that OSHA’s failure to comply prejudiced the employer. Similarly. Employee . Page 55 .A person designated by the employees to be their representative.Generally. No penalty is assessed because the violation is determined to be rather trivial. Employee Misconduct Defense . . The employee representative has the right to participate in the opening conference. Emphasis Inspection .
the closing conference and the inspection. and other related matters.A work accident resulting in an employee’s death. .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.A person designated by the employer to be its representative when dealing with OSHA. 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.OSHAGUIDE.C.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. . Gravity Based Penalty (GBP) .COM Employer Representative . It can also be the person in charge at the time of the inspection. probability and severity assessments. cases must not involve complex factual or legal issues and the proposed penalty must be less than $10. (See “Agent of the Employer” above). Fixed Place of Employment . Federal Rules of Evidence do not apply.OSHA’s internal resource manual that instructs Compliance Officers on inspection procedures. OSHA will cite the employer for violations of the general duty clause when hazards exist that are not covered by specific standards.S.In 1995. Field Inspection Reference Manual (FIRM) . E-Z Trial . a very long-term construction site could be considered a fixed place of employment. OSHA uses the general duty clause as a “catch-all” provision. OSHA FIRM § IV-C-2-d. 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. § 654 (a)(1). If the employer qualifies for Page 56 .” 29 U. the OSHRC introduced the E-Z Trial procedure which is a simpler and less expensive method of resolving contested citations.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. The employer representative can request a warrant or consent to a warrantless inspection. 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. Hearings are less formal. General Duty Clause . Field Notes . ALJ usually issues decision from the bench. To be eligible. This is known as the “General Duty Clause” which provides: “Each employer .An employer facility at one general location. E-Z Trial procedures are simplified in a number of ways: Complaints and answers are not required. Fatality . etc. The employer representative also has the right to be present at the opening conference. IN some cases.
This refers to OSHA’s practice of grouping multiple violations of different standards that affect the same hazard into a single.OSHAGUIDE. Grouped Violation . Page 57 .A citation that is defective because it is issued more than “six months following the occurrence of any violation. The employer must also prove that there were no alternative means of employee protection available. It informs the employees of their rights under the Occupational Safety & Health (OSH) Act. Infeasibility/Impossibility Defense .An affirmative defense available to the employer. that the employees were protected by alternative measures and that a variance application was futile or denied. violation. technological or economic considerations.” It refers to the “Safety and Health Protection on the Job” poster which must be displayed in the workplace. High Hazard Industry . more serious.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. Job Poster .C. resolve the issues and reach a settlement.This is also referred to as the “OSHA Poster” or the “Safety Poster. Loss Control Consultant . practice or act that could result in an injury to illness to the employee. The goal is to discuss the citation.An affirmative defense available to the employer.” 29 U.The representative from the employer’s workers compensation carrier who assists the employer in developing and implementing safety programs and policies.S.A condition. The employer must prove that compliance creates a greater hazard than noncompliance.A temporary order requested by the employer that will waive compliance with a specific standard while the employer’s variance request is being processed. Hazard .Usually defined as an industry group. Greater Hazard Defense . which has a lost workday incidence rate higher than the national average for all employers. The employer must prove the compliance is virtually impossible due to practical. Informal Conference . identified by SIC code. OSHA puts high hazard industries near the top of the list for programmed inspections.A conference between the employer and OSHA after the Notice of Contest is filed. Late Citation .COM penalty reductions they will be deducted from the GBP to arrive at a final penalty amount. Inspection . Interim Order . § 658 (c).
The preliminary conference between the employer and the Compliance Officer prior to the start of the inspection.The OSH Act refers to the federal Occupational and Safety and Health Act of 1970. or. An “Other Than Serious Violation” is more serious than a de minimus violation but less serious than a “Serious Violation. § 666 (k). The employer’s written notification is formally called a “Notice of Contest.000 per day for each day past the correction date.The employer’s failure to correct the violations within the correction dates set forth in the citation.S.C.S. (See “Loss Control Consultant” above).The employer has the right to contest the citation if it disagrees with any of the following: (1) the alleged violations. § 651 et seq.C. The Compliance Officer will explain the purpose of his visit and identify the persons to accompany him during the inspection.The free consulting services provided by many workers compensation carriers. The employer must give OSHA written notice that it disagrees with the citation. Penalties for failure to correct (or “non-abatement”) can be as high as $7. The Notice of Contest is submitted to the OSHA Area Director.S. OSH Act . (2) the abatement period.” 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.An “Other Than Serious Violation” is a violation that will not result in death or serious physical harm.S. The OSHRC either adopts the ALJ’s opinion or issues a decision of its own. Notice of Contest . but it is usually much less than that. Occupational Safety & Health Review Commission (OSHRC) – The OSHRC is a body independent from OSHA and the U. Other Than Serious Violation . It is also referred to as “The Williams-Steiger Occupational Safety & Health Act of 1970. Non-abatement . 29 U.OSHAGUIDE. 29 U.C. (3) the penalty amounts. The formula for calculating the employer’s LWDI Rate is: the sum of lost workday injuries (LWDI’s) in the reference years x 200. For an exact calculation the employer should contact its workers compensation carrier Loss Control Consultant. § 659 (a).S.also referred to as “circuit courts.COM Loss Prevention Services . Courts of Appeal . Appeals of OSHRC decisions are heard by the U. § 666 (c).000 divided by the sum of employee hours worked in the reference years. 29 U. The number of LWDI’s can be obtained from the employer’s OSHA 300 log.” The maximum penalty for an Other Than Serious violation is $7. The statistic is intended to reflect the number of lost workday injuries experienced by 100 full-time workers.C.S. Department of Labor that reviews the decisions of the Administrative Law Judge (ALJ) that presided over the contested case hearing.” Opening Conference .000.The statistic used by the Compliance Officer to determine employer trends in injuries and illnesses. 29 U.” Public Law 91-596. Page 58 . Lost Workday Injury (LWDI) Rate .
Criminal penalties can also be assessed in certain situations. Penalty Reduction .The federal agency responsible for enforcing the Occupational Safety & Health Act. (See “Criminal Penalties” above). 29 U. OSHA . Employers are subject to civil and sometimes criminal penalties if they violate the OSH Act.37 (c). You can go to the “OSHA Links” page at www. is an incident report form that must be completed for every recordable injury or illness entered on OSHA Form 300. 29 U.The general term encompassing penalty reductions and penalty increases.COM The purpose of the OSH Act “is to assure as far as possible. 29 CFR 1903. the term “OSHA 300 Log” is also used collectively to refer to the following three forms required by OSHA: (1) OSHA Form 300. However. is a log of each recordable injury and illness.oshaguide.A defense available to certain employers if another governmental agency regulates the same conduct cited by OSHA. Likewise.Petitions for Modification of Abatement (PMAs) are used if the employer does not contest the citation but needs more time to correct the violations. increases can never be above the maximum penalty amount set forth by statute or administrative rule. Penalty Adjustment . Injury and Illness Report. every working man and woman in the Nation safe and healthful working conditions .14 a (c). (3) OSHA Form 301. Reductions can never be below the minimum penalty amount set forth by statute or administrative rule. The OSHA 300 log technically refers to OSHA Form 300.The Director of an OSHA Area Office. Summary of Work-Related Injuries and Illnesses. . is the employer’s annual summary of occupational injuries and illnesses of its employees.OSHAGUIDE. Preemption . PMAs are filed with the OSHA Area Director. Log of Work-Related Injuries and Illnesses. An OSHA Area Office is located in most States. Petition for Modification of Abatement (PMA) . . § 659 (c). The other federal regulation “preempts” the OSHA standard.S. OSHA Area Director .C. ”. OSHA has an “understanding” with many governmental units that are set forth in “Memorandum(s) of Page 59 . Penalty . They must be filed before the close of the next working day following the date on which abatement was originally required. (2) OSHA Form 300-A. The Compliance Office will review these forms during an inspection and verify that they have been posted properly.C. 29 CFR 2200. OSHA 300 Log – This replaces the OSHA 200 log.A reduction in the penalty amount for meeting certain criteria set forth in the “Penalty Reductions” section of this manual. The forms and instructions can be downloaded from OSHA’s website.S.com to obtain contact information for all OSHA Area Offices.A penalty generally refers to a civil monetary penalty assessed against an employer by OSHA for violation of the OSH Act. § 651 (b).
Serious Violation . etc.One of the factors considered by the Compliance Officer in assessing the gravity-based penalty (GBP) amount for a violation. memoranda often address when preemption applies. which classifies employers by an industry code representing the type of activity performed.OSHAGUIDE. 29 CFR Part 1910.The federal classification system.An employer’s second or subsequent violation of a standard previously cited by OSHA inspection in the previous three years. Medium and Low. etc.A violation that is not corrected by the correction date listed on the citation. Severity Assessment . The severity assessment is ranked High. 29 CFR Part 1915. These Probability Rating . 29 CFR 1910. (See “Non-abatement” above). 29 CFR Part 1926.000. accident statistics. Each industry is assigned an SIC code.. and.One of the factors considered by the Compliance Officer in assessing the penalty amount for a violation. The probability ratings are “Greater” and “Lesser” depending on whether the likelihood of injury or illness is high or low. The maximum penalty for a “Serious Violation” is $7. § 666 (k). The severity assessment is based on the most serious injury or illness which could “reasonably be expected” to result from the employee’s exposure.S. For a repeat. Safety Codes . 1918. (3) Maritime & Longshoring. 29 U. 1917. Examples of “serious physical harm” are amputations.001).” 29 U.Specific safety standards regulating work practices and processes such as fall protection. machine guarding. Standard Industrial Classification (SIC) .An unprogrammed inspection triggered when another government employee observes a safety violation and reports it to OSHA. are found in the Code of Federal Regulations (CFR) and are referred to by their federal CFR number (e.C. The standards are divided into four broad categories: (1) General Industry.A comprehensive inspection scheduled on the basis of neutral administrative criteria such as location. Programmed Inspection . (4) Agriculture.g. Unabated Violation . Repeat Violation .A “Serious Violation” is a violation where there is a “substantial probability that death or serious physical harm could result. OSHA FIRM § IV-C-2-e. Referral Inspection . § 666 (b).C. 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. etc.COM Understanding” that can be viewed on OSHA’s website. (2) Construction. fractures.S. disabling burns. OSHA will multiply the current penalty according the formula set forth in the “Penalties for Repeat Violations” section of this manual. 29 CFR Part 1928. Page 60 .
C. complaint. 29 U. (4) the employer knew. Page 61 . other than compliance with the safety standard. the Compliance Officer will be attempting to identify safety code violations.e.. OSHA’s Office of Variance Determinations processes variance applications. of the hazardous condition. § 657 (a)(1). Title 29.000 to $70.” The Compliance Officer is authorized to conduct an inspection “during regular working hours and at other reasonable times. and within reasonable limits and in a reasonable manner.An inspection in response to an event that cannot be scheduled (i.) is the body of law created by the United States Congress. or that it will be unable to comply in time. The warrant must set forth probable cause for the inspection. This is referred to as a “walk-through” or “walkaround. (2) the employer failed to comply with the cited standard. or with reasonable diligence should have known. until a final determination is made on the variance application. Variance (Application for) . “programmed”) such as an accident. A “variance” means that the employer is excused from complying with the specific health standard. Violation . During the walk-through.S. referral by another government employee or in follow-up to a previous inspection.After completion of the opening conference. While variance applications are pending employers can also request an interim order. § 655 (b)(6).S. Withdrawal .C.The document obtained by OSHA if the employer denies entry to all or part of the premises for the purpose of an inspection.Upon the issuance of a new rule.The United States Code (U.) . Sections 651 to 678.OSHA must prove the following elements by a preponderance of the evidence to establish a violation: (1) the cited standard applies. Criminal sanctions can be imposed if a willful violation causes the death of an employee. Unprogrammed Inspection .C. An “interim order” grants to employers temporary authority to use alternative means of employee protection. the Compliance Officer will conduct a tour of the business premises.S.000.” 29 U. Warrant .OSHAGUIDE.The term used when OSHA decides to abandon all or part of the citation. if the employer foresees that it will be unable to comply.COM United States Code (U. and. A willful violation will be assessed a penalty of $5.S.C. A willful violation exists if the employer knowingly decided not to comply with the safety standard. The OSH Act is contained in U. It can also refer to the employer’s withdrawal of a Notice of Contest.S. Willful Violation .C. Other jurisdictions have more recently defined a willful violation as one committed with “intentional disregard” or “plain indifference” to the requirements of the OSH Act.A “Willful Violation” does not require malicious intent or an obstinate refusal to comply. the employer can apply to OSHA for a variance. (3) employees were exposed or had access to the hazard. Walk-Through . Chapter 15.
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.