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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
com and they are currently used as a resource across the United States and internationally.. It explains violations. D. J. Brewster. CONTACT AN ATTORNEY IN YOUR AREA IF YOU REQUIRE LEGAL ASSISTANCE. Accordingly. MIM. It addresses the following jurisdictions regulated by federal OSHA including Puerto Rico and the Virgin Islands**: Alabama Arkansas** Connecticut** Colorado Delaware Wash.M. penalties. employers are demanding to know their rights and responsibilities.I. This problem is compounded by the fact that failure to comply can result in civil and sometimes criminal penalties. 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. His OSHA manuals have been featured on amazon.D.COM OSHA Inspections and Defenses OSHA 2004 William M. This concise manual discusses employer rights. He currently practices law in Oregon and Washington. INTRODUCTION OSHA compliance is becoming more difficult and employers must devote more of their resources to deal with this issue. citations and contains a glossary of common OSHA terms. This manual is updated every year to reflect changes in the law. Copyright 2003 Page 1 . The federal OSHA manual applies to most of the United States. Condor OSHA Guides THIS MANUAL DOES NOT REPLACE LEGAL ADVICE. 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. M. strategies and defenses during federal OSHA inspections.C. Brewster.OSHAGUIDE. JD.
Employers must begin using the new OSHA 300 Form on January 1. The forms for 2003 and 2002 will continue to be available on OSHA's website at www. However.gov. 1/2004) located on the form next to the form number. You can go to www.gov/recordkeeping/new-osha300form1-1-04. Page 2 .COM SPECIAL NOTICES FOR 2004 New OSHA 300 Form Effective January 1..OSHAGUIDE.e. There is no longer a column for work-related injuries associated with ergonomic factors.gov/recordkeeping/OSHArecordkeepingforms.osha. www. The new form has the date of the revision (rev. 2003 and 2002 injuries and illnesses should be recorded on the forms for those years). employers should use the old OSHA 300A Summary Form (without the hearing loss column) to post as required in February 2004. Injuries and illnesses for years prior to 2004 should continue to be recorded on the appropriate form for that year (i. 2004 ** The following information is quoted directly from OSHA’s web site. including the addition of an occupational hearing loss column and more clear-cut formulas for calculating incidence rates.osha.osha. 2004. The new 300A form that includes the hearing loss column should be used to post in February 2005. OSHA directs that employers still record ergonomic-type injuries in either the “injury” or “all other illness” columns.pdf for the new form. The revised form includes various changes.pdf Additionally.
fall protection. In this manual we refer to the OSH Act as it is cited in the United States Code.” 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. “OSHA FIRM § IV-B-1. assessment of penalties and issuance of citations. which is divided into twelve federal circuits. Accordingly.” Court Cases Cited In the federal manual you will also see cases cited from different courts. Thus. However. the order is as follows in terms of importance: (1) U. therefore. it does show how Compliance Officers address particular situations and calculate penalties. are found in the Code of Federal Regulations (CFR). Supreme Court Page 3 . contested citations are heard by the Occupational Safety & Health Review Commission (OSHRC).S.C. An appeal of a federal circuit court decision is heard by the U. “29 U. it is very helpful for the reader to be able to recognize the different types of cases cited.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. At the first level. this manual is limited to OSHA inspections and. The OSHA FIRM is not law and.S. 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. Thus.S.S. However. it has no value as a legal document binding OSHA. “29 CFR 2200.OSHAGUIDE. References to the CFR in this manual are in this type of format. Supreme Court. However. References to the OSHA FIRM in this manual are in this type of format. There are other books and manuals that address specific OSHA regulations about hazard communication. Some cases are more important than others.” The Code of Federal Regulations (CFR): The specific safety standards regulating work practices and processes such as fall protection.37. machine guarding. § 651. references to the OSH Act are in this type of format. An appeal of an OSHRC decision is heard by the U. Some cases may not apply to your particular jurisdiction. etc. it is not concerned with the broad range of safety standards contained in the CFR. Court of Appeals. therefore.
(3) OSHRC decision. 98 S.2d 1021 (5th Cir.S. States NOT regulated by federal OSHA are omitted from the list: 1st Circuit Maine Massachusetts New Hampshire Puerto Rico Rhode Island 5th Circuit Louisiana Mississippi Texas 2nd Circuit Connecticut New York 3rd Circuit Delaware New Jersey Pennsylvania Virgin Islands 7th Circuit Illinois Wisconsin 4th Circuit West Virginia 6th Circuit Ohio 8th Circuit Arkansas Missouri Nebraska North Dakota South Dakota DC Circuit Wash. D. Occupational Safety & Health Review Commission (OSHRC) Decision Keco Industries. There are twelve federal Circuit Courts and many cases are cited in this manual as coming from the “1st Cir. Court of Appeals.C. 1816. 56 L.Ct.. 578 F. Readers will benefit the most by knowing the number of their federal circuit of the U.2d 305 (1978). v.S.OSHAGUIDE. Citations to the different courts are in the format shown below. For quick recognition. 7 OSHC 2048 (1979). 9th Circuit Guam Idaho Montana 10th Circuit Colorado Kansas Oklahoma 11th Circuit Alabama Florida Georgia Page 4 . Supreme Court Decision Marshall v. U. Barlow’s Inc.S. Inc. Marshall. 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. Inc.COM decision. “5th Cir. (2) federal circuit court decision of the U. and. U.”. etc.”.. 1978). 436 US 307. Court of Appeals Decision Stephenson Enterprises.Ed.S. the reader will want to focus on the enlarged portions indicated in bold. Court of Appeals.
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
OSHAGUIDE. 56 L. citizen complaint (drug offense). Barlow's.2d 305 (1978)..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. observation of an employee working without fall protection. etc. Administrative searches and criminal searches are similar in the sense that specific evidence can provide probable cause for a search. In contrast. Similarly. 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. a complaint. it is important to know the two types of inspections performed by OSHA. or “wall-to-wall. for administrative searches. The scope of the inspection To address the “scope” issue. or schedule.” Page 8 . supra.g. or schedule. Programmed inspections are by nature comprehensive. 1816. Marshall v. developed by OSHA. in the OSHA context. etc. Thus. This means that OSHA must have probable cause to perform the inspection. an accident. broken taillight (traffic infraction). Probable cause for OSHA inspections An OSHA inspection is considered an “administrative search” rather than a criminal search. probable cause would be specific evidence of an OSHA violation – e. They are referred to as “programmed” and “unprogrammed” inspections based on the type of “probable cause” involved.Ed. probable cause would be specific evidence of a criminal violation – e. by geographic location. probable cause can also be provided by reasonable legislative or administrative standards. the police cannot search private homes merely by developing a list of “suspects” whether or not neutral criteria are used to develop the list. In the criminal context. 98 S. Thus. by industry. Accordingly. etc. 436 US 307.Ct. Programmed inspections are based on an inspection list...g. “Probable cause” for programmed inspections is provided by the inspection list. Barlow’s Inc. OSHA can develop a scheduled list of employers to be inspected as long as neutral standards are used – e.g. the employer has the right to request a warrant to confirm that “cause” exists before OSHA can conduct an inspection. “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. Administrative searches and criminal searches are different in that..
Hern Iron Works. programmed) such as accidents. 741 F. the nature of the complaint. 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. v.COM Unprogrammed inspections are so named because they are in response to incidents that cannot be scheduled (i.. However. (4) whether the facility would be due for a programmed inspection in the near future. 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. 752 F. Marshall v. 693 F. 1984). Page 9 . unprogrammed inspections should be limited to the subject matter providing probable cause – e. “Probable cause” is provided by the specifics of the complaint. Donovan. As the Supreme Court noted in Barlow's. 1980). etc.2d 838 (9th Cir.e.. Warrants The employer has a constitutional right to request a warrant in order to confirm that probable cause exists for the inspection.g. 626 F. In re Cerro Copper Products Co. etc. (3) whether a full inspection had been conducted within the preceding year.. complaints. 1982). etc. Theoretically. 670 F. 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.2d 172 (8th Cir. Sarasota Concrete Co.). 1985). accident or observed violation.OSHAGUIDE. Donovan v. Inc. the cause of the accident. 1982). North American Car Co. complaint. 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. The Compliance Officer’s response will assist the employer in determining whether to request a warrant. the great majority of businessmen can be expected to consent to a search without a warrant. If the inspection is unprogrammed (accident. supra. Indeed. (2) whether the nature of the employer’s business and its safety record qualified it for a general inspection. However... Barlow's.2d 1061 (11th Cir. most administrative searches are conducted on the basis of consent. and (5) whether OSHA’s limited resources were being utilized in the public’s best interest.2d 320 (3rd Cir. Carondelet Coke Corp.2d 280 (7th Cir. the annual percentage of employers requesting warrants for OSHA inspections is usually quite small. 8th Circuit & 11th Circuit: OSHA must make “some showing” of why a broad warrant is appropriate in a particular case.
e. 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. The right to a warrant must be asserted at the beginning of the inspection or it can be deemed waived.OSHAGUIDE.COM Factors For Seeking a Warrant 1. Valid consent operates as a waiver of the Fourth Amendment right against unreasonable search and seizure. In more common vernacular. “If you don’t use it – you lose it.) 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. or general contractor in charge of multi-employer work site. 2. However. etc. Consent to Warrantless Inspections The right to a warrant must be asserted at the beginning of the inspection or it can be deemed waived. complaint. 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. 2. Valid Consent or Warrant Exceptions Apply: A property owner. 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.” 3. accident. Consent for Page 10 . Valid consent to a warrantless inspection operates as a waiver of the Fourth Amendment right against unreasonable search and seizure. this is only a factor in jurisdictions that recognize such limitations. Perhaps one of the many warrant exceptions also apply. Maintaining the Compliance Officer’s good will is something employers should always consider.. 3. To Keep an Unprogrammed Inspection Limited in Scope: If the inspection is unprogrammed (i.) 4. 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. 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. However. (See next Section for further discussion.
g.Ed.. and the employer's acquiescence to the inspection.S. Thriftmart. coercion or misrepresentation.S. 1975).2d 1021 (5th Cir. Consent can be given by any competent management official.2d 84 (5th Cir. 1978). OSHRC. Seattle. 18 L. 536 F. v. Thus.Ct.2d 1006 (9th Cir. 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. can consent to a warrantless inspection with respect to any on-site employers. Kramer Grocery Co. v. 553 F. 1976).. Lake Butler Apparel Co. 578 F. 87 S. United States v. J. Consent by Others A property owner. Inc. Foti Construction Co. Warrant Exceptions There are several situations where a full inspection can be performed without a warrant.. 1969). 1970). 1737. Stockwell Mfg. v.2d 1309 (1oth Cir. Consent to an administrative inspection need not be express and the failure to object to a known search constitutes consent.2d 185 (1970). 1727.” One federal Circuit Court held that valid consent was given by a foreman. 541. v.OSHAGUIDE.2d 357 (4th Cir. 1986). Bustamonte. 387 U.Ed. 786 F2d 714 (6th Cir. cert. Usery. v. Secretary of Labor. 1978). There are also some isolated situations where OSHA can initially enter the premises without a warrant to accomplish a specific purpose. Stephenson Enterprises. 91 S.Ed. a plant manager can give valid consent. Inc.2d 930 (1967).L. 926.Ct.Ct.S. 387 U. 418 F. this rule has been applied where delay to get a warrant would Page 11 . Donovan. 87 S. Dorey Electric Co. Marshall. Inc. manifests consent. An Emergency An administrative search without consent and without a warrant is permissible in the event of an emergency. 1977).2d 987 (8th Cir. 188. 578 F. 18 L. 429 F. or general contractor in charge of multi-employer work site. Marshall.2d 1021 (5th Cir. 400 U. Consent is not valid if it is the result of threats. Other federal cases have also held that the Compliance Officer's mere announcement that he is there for an inspection. 218 (1973). Miranda type warning not required. 412 U. which is generally defined as a threat to human life.S. Stephenson Enterprises. Schneckloth v. 27 L. The courts will look at the "totality of the circumstances" to determine whether consent was freely and voluntarily given. v. Camara v. Municipal Court. 523. 519 F. See v.2d 943 (1967). In the OSHA context. Those situations generally cover instances when OSHA needs to preserve an accident scene or temporarily remedy a patently life-threatening hazard. The authority to give valid consent can also extend down the management “food chain. Co. United States v.COM administrative searches is less stringent than that required for criminal searches e. den.
. 2d 947 (8th Cir. Secretary of Labor v.Ct. 466 U. 80 L. 15 OSHC 1903 (1992) citing Coolidge v. 18 OHSC 1848 (1999). Globe Contractors. 98 S.R. Marshall v.2d 1422 (9th Cir. The use of a telephoto lens that enhanced the Compliance Officer’s view has also been upheld.S. 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. 765. OSHRC. violations were observed while looking through the window of an attorney’s office with the attorney’s consent. fencing. the Compliance Officer should not trespass on private property or within a closed work site to view the violation. The observance of the violation must also be inadvertent. 403 U. 104 S. Willson & Sons. United States v.2d 1235 (4th Cir.R. supra. 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. Bast Hatfield Inc. the observance should not be the result of a pre-planned visit or “stake-out” of a closed work site when there is no probable cause that violations have occurred. 560 F. 732 F. Inc.. 170.COM increase the danger and consent could not be obtained. New Hampshire. OSHRC. 399 (5th Cir.Ed. United States. Thus. Secretary of Labor v. 19 OSHC 1287 (2000). federal case law recognizes some constraints. 1986).. The Compliance Officer must be lawfully positioned -. 17 OHSC 2165 (1996). 783 F. Inc. 499. 134 F. Western Waterproofing Co.S. 1978). 134 F. Marbury. United States v. Coolidge v. Page 12 . This exception often applies to construction activities conducted outdoors if the public has access to the work area. Michigan v. Oliver v. Tyler. Latite Roofing & Sheet Metal Co. signs or totally enclosing the area with tape marked “Do Not Enter” or similar language.S.. 1998).i. 463 U. v. However.. such as commercial retail space. Compliance Officers can legally videotape roofing contractors working without fall protection from a vehicle parked on a public street.2d 214 (1984). Secretary of Labor v. a contractor might be able to create a privacy interest by closing the site to the general public by means of barricades. Tri-State Steel Construction Inc.. Head. 56 L. even in places open to the public such as a grocery store. In one case. Secretary of Labor v. 1984).e. 443.2d 486 (1978). 468 (1971) and Illinois v.2d 390. 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. The “open fields” exception also applies to indoor facilities open to the general public.Ed.. Thus. New Hampshire. 771 (1983).2d 1235 (4th Cir.OSHAGUIDE. For example.Ct. 1735. Andreas. 436 U. 1942. v.. However. 1998).. Willson & Sons. L. Open Fields & Outdoor Projects The “open fields” exception holds that there is no privacy interest for activities conducted in places open to the public.S. L. Inc.
OSHA can then begin looking into hazard communication issues. This method is not favored because of the fines and costs associated with contempt proceedings. One option is for the employer to refuse the inspection and seek to quash the warrant in civil court. the employer would then defend its refusal to comply with the warrant. An alternative. INSPECTION PROCEDURE Presentation of Credentials Upon arrival. The most favored option is to allow the inspection under protest and then challenge the warrant in contest proceedings before the OSHRC. However. However. If OSHA initiates a contempt proceeding against the employer. However. to challenging a warrant is to seek a protective order with the goal of favorably modifying the scope of the inspection. The purpose is somewhat similar. Thus. Challenging Warrants The employer basically has three options if it wishes to challenge an OSHA inspection warrant: 1. while conducting an inspection to investigate a forklift accident. the employer must be prepared to wait until the contest proceeding goes to hearing – which often can take quite some time. 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. Another option is to allow the inspection under protest and then seek to quash or modify the warrant in civil court.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). or middle ground. In practice. a Compliance Officer can cite a machine guarding violation in plain view. the presentation of OSHA credentials is similar to a police officer “flashing his badge” to prove his identity. which is likely. 3.COM Violations found in plain view during an otherwise legitimate inspection can be cited. the Compliance Officer may be asking a forklift driver about the forklift accident. For example. Page 13 . the Compliance Officer will present his or her “credentials” which usually consists of an official badge or OSHA identification card. the forklift driver begins talking about other unsafe practices including the employer’s lack of a hazard communication program. 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. 2.
complaint. The employer should document in writing the scope of the inspection that it has authorized (i. in response to an accident. the scope of its consent) and give a copy of this document to the Compliance Officer and keep another copy for its records. etc. the Compliance Officer will conduct an opening conference explaining the purpose and methods of inspection. 8 OSHC 1162 (1979).OSHAGUIDE.C.COM There have been cases of con men posing as Compliance Officers and soliciting bribes or “protection money” to prevent inspections. 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. Marshall v. “Who is Page 14 . Keco Industries. 1977) (foreman was deemed agent in charge). the inspection still cannot exceed the scope of the employer’s consent. Inc... Thus. An authorized employee representative shall also be given an opportunity to accompany the Compliance Officer during the inspection. If an “agent in charge” still cannot be readily identified. A critical point for the employer is to define the scope of those deemed to be the authorized employer representative prior to an inspection. 1978) (most “senior employee” left at the site deemed agent in charge). C. a foreman or leadperson can be deemed the “employer representative” for the purpose of conducting an inspection if no other management official is present. Dorey Electric Co. There is some limited authority for the proposition that even if an employer consents to a warrantless inspection.. The Compliance Officer will also request employer records. If it is an unprogrammed inspection (i. the Compliance Officer will not delay the inspection an unreasonable length of time. 7 OSHC 2048 (1979). or agent in charge of the workplace. The OSH Act conditions an inspection upon the proper presentation of credentials to the “owner. operator.2d 809 (10th Cir. ask whether there are any trade secrets that need to be protected and identify the participants to the inspection.. Marshall v.. OSHRC.” 29 U. If neither is present. even if the employer has consented to a warrantless inspection. 626 F. 576 F. Opening Conference After entry is granted.e. The problem arises when the supervisors are absent and the Compliance Officer asks.F. & I.C. § 657 (e).2d 357 (4th Cir.. the Compliance Officer will ask for the “agent in charge. Steel Corp. § 657 (a).S.” This broad definition generally encompasses anyone with apparent authority at the work site. 1980). the Compliance Officer will make a reasonable attempt to contact a management official. However. As with the “agent in charge” issue during the presentation of credentials. v. 553 F.2d 320 (3rd Cir.S.e. Id. The owner or operator is usually easily identified. North American Car Co.” 29 U. complaint. 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. it is a good practice during the opening conference for the employer to document the scope of its consent. Merchants Oil Inc.
even during an unprogrammed inspection the Compliance Officer can cite the employer for any other violations in “plain view. it is important for the employer to limit the scope of the inspection as much as practicable. The Compliance Officer has the right to take environmental samples and photographs. The inspection can go forward without an employer representative as long as the Compliance Officer substantially complied with the duty to identify an employer representative and there was no prejudice to the employer by not having one present. the Compliance Officer will conduct a tour of the business premises. The employer can be cited for any information that it volunteers to the Compliance Officer. The above strategy will not prevent an inspection. Even so. 29 U. the employer should be cooperative. Accordingly. Many employers choose take their own photographs and videotape during the inspection. If the Compliance Officer is conducting an unprogrammed inspection. the employer should attempt to keep the inspection limited to the area of the accident or the area identified in the complaint. Any evidence that employers collect may be used later by OSHA to prove a violation. An inspection without an employer representative present may be preferable to having an informal crew leader deemed the employer representative and make damaging admissions that would bind the employer. the employer should schedule the employee interviews and designate a neutral area Page 15 . the employer should limit the discussion to the specifics of the accident or the complaint.C. The Compliance Officer can interview employees in private outside the presence of an employer representative. The Walk-Through and Collecting Evidence After completion of the opening conference.” The Compliance Officer is authorized to conduct an inspection “during regular working hours and at other reasonable times. § 657 (a)(1).7 (b). § 657 (a)(2). and within reasonable limits and in a reasonable manner.OSHAGUIDE. However. but cautious. about the information it volunteers. Employers need to be aware. If this is an unprogrammed inspection. some employers feel that it is worth the risk to produce their own record of the inspection.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.S. This is referred to as a “walk-through” or “walkaround. During the walkaround.” Therefore.C. The above strategy is to prevent non-supervisory personnel from holding themselves out to OSHA as an agent of the employer.” 29 U. the Compliance Officer will be attempting to identify safety code violations. This right probably also includes videotape as long as trade secrets are adequately protected. As noted.S. Therefore. that this is a two-edged sword. however. 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. The purpose is to produce mitigating evidence to refute any damaging evidence collected by OSHA. 29 CFR 1903.
remember the “plain view” problem. ENHANCED ENFORCEMENT PROGRAM (EEP) OSHA’s Enhanced Enforcement Program (EEP) addresses employers who. 29 CFR 1903. 5. In essence.OSHAGUIDE. That discrimination against employees is prohibited for exercising rights under the OSH Act. penalties or correction dates. 2003. A fatality inspection in which OSHA finds a high gravity serious (or willful or repeated) violation related to the death. Page 16 . Rather. If OSHA finds that a willful violation caused the death of an employee. 4. 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. or PEC. 2. the employer will also be considered for criminal referral under section 17(e) of the OSH Act. the Compliance Officer will inform the parties of the following: 1. Whether any violations were found and if a citation will be issued.C. Closing Conference After the inspection is completed the Compliance Officer will hold a closing conference with the employer and employee representative. thereby placing their employees at risk. 6. This prevents the Compliance Officer from rambling around the facility without a management person present . If the Compliance Officer objects. The employer’s right to contest the citation. § 657 (a)(2).7 (e). that can be found on OSHA’s web site. despite OSHA’s enforcement and outreach efforts. is defined as any inspection that meets one or more of the following criteria: 1.S. PEC Criteria A Priority Enforcement Case. The right to request an informal conference with OSHA.COM such as a lunchroom. At the closing conference. The requirements for abating any violations or requesting extensions of the correction date. ignore their OSH Act obligations. the EEP is an OSHA program which sets forth the procedures that OSHA Regional Administrators should follow in cases meeting the PEC criteria. The employer’s duty to post the citation. the employer should remind the Compliance Officer that pursuant to statute he is only authorized to conduct an inspection in a “reasonable manner” and that scheduled interviews in a nonproduction area reduces down time and is a “reasonable limit. 3. The EEP is not actually federal law.” 29 U. The program is more fully discussed in an OSHA memorandum dated September 30.
OSHA will mail a copy of the citation and notification of penalty to the employer’s national headquarters. a follow-up inspection will be conducted even if abatement of the cited violations has been verified. 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. Necessary information about the company will be disseminated through the OSHA intranet and e-mail. OSHA may consider including some or all of the following terms within the settlement agreement: 1. and to consent to OSHA's conducting an inspection based on the report. Using Settlement Terms to Ensure Compliance and Abatement In PEC cases. 3. In construction (and where appropriate. OSHA will often make greater use of settlement provisions to ensure future compliance. 4. Company Headquarters Notification In PEC cases. in general industry). OSHA will inspect other sites of the same company-wide employer to determine whether the compliance problems at the PEC site are indicative of a company-wide problem. OSHA may also hold meetings with company officials or send letters of concern to the company president. Requiring the employer to notify the Area Office of any serious injury or illness requiring medical attention and consenting to an inspection. 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. Inspections of Other Sites When circumstances warrant. If the employer is in construction. the EEP recommends that at least one other worksite be inspected.COM 2.OSHAGUIDE. PEC Follow-up Inspections In PEC cases. and Page 17 . An inspection that results in three or more high gravity serious violations classified as willful or repeat violations. Applying the agreement company-wide. 3. Requiring the employer to submit to OSHA its Log of Occupational Injuries and Illnesses on a quarterly basis. using settlement agreements to obtain from employers a list of other job sites. 5.
If you need help determining which programs or standards apply to you.g. hazard communication). Many carriers provide free loss prevention services. Consultation assistance is available to small employers (with fewer than 250 employees at a fixed site and no more than 500 corporatewide). 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. No penalties are proposed or citations Page 18 .e. etc. Keep these records up-to-date and in a central location for easy review by OSHA. contact your workers’ compensation carrier. Your carrier’s Loss Control Consultant can assist you in developing and implementing the required safety programs.gov/comp-links. If any of the rules are violated.osha. 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. onsite assistance in developing and implementing effective workplace safety and health management systems. Section 11(b) Summary Enforcement Orders are sometimes used as an effective and speedier alternative to failure-to-abate notices. “OSHA’s consultation service provides free. as well as limited assistance away from the worksite. OSHA always has authority to examine mandatory records .COM 6. Adopt a company safety policy.html. Periodically visit OSHA’s website. EMPLOYER STRATEGIES Before The Inspection Download any applicable safety codes and regulations from the Internet at OSHA’s Web address: www. Finally. Ensure that all employees read the policy (probably at orientation) and that they sign and date a check-off form stating that they have read and understand the rules.OSHAGUIDE. Keep copies of any other written programs in a central location for easy review by OSHA.g. During any inspection. Obtaining employer consent to a court enforcement order mandating abatement. OSHA also has many free publications that can be downloaded off the Internet at the web address listed above. OSHA 301 forms and/or worker’s compensation claim forms. Most employers are required to develop and implement certain written safety programs (e. OSHA Form 300A. many private safety and health consultants are often listed in your local telephone directory. and check if there are any proposed rules which will affect your industry. 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. The inability to locate any required records and written programs makes a poor impression on the Compliance Officer. OSHA 300 Log.
close any open work sites to the general public by means of barricades. fencing. etc.OSHAGUIDE. if asked. Give a copy of this document to the Compliance Officer and keep a copy for your records. etc.e. if you are an employer. This will assist you in tactfully requesting a warrant if the need arises. 2002). document in writing the scope of the inspection that you have authorized. if you do not request a warrant you waive any constitutional protections. that they are NOT in charge of the worksite during their supervisor’s absence. signs or totally enclosing the area with tape marked “Do Not Enter” or similar language. A warrant is best utilized with unprogrammed inspections (accidents. OSHA 300 Log. Designate the authorized employer representatives for the purposes of OSHA inspections. or general contractor in charge of multi-employer work site.” [Quoted from OSHA Publication 3000 (Rev. However. OSHA consultation assistance will not provide the employer’s name or workplace information to OSHA enforcement. A property owner. can consent on your behalf to a warrantless inspection. Explain to them that they should inform OSHA. complaints.COM issued for hazards identified by the consultant. Certain warrant exceptions may also apply. do the following: (1) make a reasonable effort.) to prevent OSHA from exceeding the scope of the inspection. preferably in writing. Even experienced attorneys find this complex. 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. 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. Be ready to access any records related to your mandatory record keeping requirements . At the Beginning of the Inspection Determine whether you want to waive your right to a warrant. Participation in these programs can exempt the employer from some inspections.g.] You may also consider applying for OSHA’s VPP and SHARP programs. A warrant has less value with respect to a programmed (scheduled) because they are by nature comprehensive inspections. 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. On multi-employer worksites. and (2) take alternative steps to protect your employees. Advise informal leadpersons and crew leaders that you do not want them to act as employer representatives during an inspection. If possible. Consider adopting a written policy of requesting warrants for all OSHA inspections. If this is a programmed Page 19 .
Even during unprogrammed inspections the Compliance Officer can cite the employer for any violations in “plain view. limited access to the point of danger. It explains the rationale behind the specific violations found and how the penalties were calculated. etc. try and keep the discussion limited to the specifics of the accident or complaint.g.g. During the Inspection Determine the persons who will accompany the Compliance Officer during the inspection. However. Request a copy of the investigation report at the closing conference. be ready to access any other written programs e. few employees exposed. as much as practicable. If the Compliance Officer requests to talk to employees in private. Take your own pictures and videotape of the alleged violations. Therefore. Page 20 . Legal representation is especially advisable if your company has a poor history with OSHA. This will certainly include the authorized employer representative. You can be cited for any information you volunteer to the Compliance Officer. exposure limited in duration. 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. hazard communication. it is very important during the inspection to point out those factors which reduce the probability of an accident occurring . lock-out/tag-out. However. other means of protection.OSHAGUIDE. The investigation report often contains employee statements paraphrased in written notes by the Compliance Officer. try to make sure that the Compliance Officer confines the inspection to the area of the accident or the complaint. etc. a problem with repeat violations.COM (comprehensive) 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. which is his right.. If this an unprogrammed inspection. Accordingly. Correct as many violations as you can during the inspection.” Accordingly. training received by the employees. or the citation involves a serious injury or willful violation. if this is a programmed (comprehensive) inspection. the Compliance Officer is authorized to inquire into any and all safety issues.e. Confirm with your employees whether the Compliance Officer accurately characterized their statements. the employer should schedule the interviews and designate a neutral (nonproduction) area such as a lunchroom. Have employees close their tool boxes and store broken equipment.
000 or six months imprisonment. Sundays and federal holidays. 29 CFR § 1903.OSHAGUIDE. representation.S.51 (b).g. 29 CFR 2200. The filing is timely if it is postmarked within the 15-day period. They must be filed before the close of the next working day following the date on which abatement was originally required.C. 29 CFR § 2200. Disgruntled Employees. Petitions for Modification of Abatement (PMAs) are used if the employer does not contest the citation but needs more time to correct the violations. At The Informal Conference At the informal conference. Labor Disputes & Retaliation If the complainant requested confidentiality. It is this type of information that will most likely result in violations being withdrawn or penalties being reduced. The Notice of Contest is submitted to the OSHA Area Director.14 a (c). However. § 659 (c).S. sometimes an employer obtains information that a disgruntled employee filed the complaint. OSHA is generally more interested in mitigating factual information than legal defenses. plan or other document required by the OSH Act. Accordingly. Likewise.S. It is also a good strategy to request that broad general violations be reclassified as specific code violations. 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. the parties can sometimes accomplish much the same purpose by requesting a pre-hearing conference with the Administrative Law Judge. 29 U. If the informal conference goes poorly. if a specific program is involved (e. 29 CFR § 1903. 29 U. the complaint may come during the midst of a labor dispute. § 666 (g). can be imposed for knowingly making any false statement. OSHA will not release the complainant’s identity. However. Criminal penalties of $10. PMAs are filed with the OSHA Area Director. record.21 (c).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. 29 CFR 1903. This is because a general violation is more subject to providing the foundation for a repeat violation.C. or both.17 (a). § 659 (a). This is true Page 21 . OSHA will perform an inspection in response to a complaint if they have reason to believe that it is valid. there is no formal mediation under the OSH Act or the procedural rules of the OSHRC. The term “working days” excludes Saturdays. or certification in any application. 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.37 (c). 29 U.C. exercise extreme caution when completing any documents concerning abatement certification. For example.
S. OSHA’s Field Inspection Reference Manual (FIRM) cautions Compliance Officers during labor disputes “to insure ensure as far as possible that the complaint reflects a good faith belief that a true hazard exists. Rather. Employers should be aware that the six-month “statute of limitations” for citations does not apply to criminal violations of the OSH Act. advise the Compliance Officer that the complaint may have been filed for improper motives if you have good reason to believe this is true. Page 22 .S. the criminal statute of limitations applies which is usually the five-year statute of limitations for federal non-capital crimes. 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. 29 U.S. § 3238. Finally.S. OSHA must prove exposure. A longstanding hazard can be cited as long as employees were exposed to the hazard in the six months preceding the citation. in practice. 29 U. Accordingly.16 (a). 18 U.C.COM even if the complainant possibly had other motives for filing the complaint. a citation will be issued setting dates of correction for each of the violations.000 for failure to post a citation. The employer can be assessed a maximum penalty of $7. 29 CFR 1903.S. However.C.S. Thus. OSHA must issue the citation within “six months following the occurrence of any violation.OSHAGUIDE. whichever is longer. even if the complainant subsequently violates legitimate work rules. 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. It is an unlawful employment practice for an employer to discriminate or retaliate against an employee who files a complaint with OSHA. 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. However. § 658 (a). § 658 (b). A civil monetary penalty for each of the violations will also likely be assessed. it is insufficient for the Compliance Officer merely to surmise that employees must have been exposed to the hazard.” 29 U. the employer will need to be cautious about taking any disciplinary action.” OSHA FIRM § II-A-2-g-(2). § 658 (c). 29 U.C.C.C. 29 CFR 1903. § 666 (i). The citation must remain posted for three days or until the violation has been corrected. The six-month period begins to run on the last day that employees had access to the zone of danger.C. THE CITATION If the Compliance Officer observes a safety violation or a health hazard. The OSH Act requires that copies of the citation be posted near each place of a violation. 29 U.16 (b). § 660 (c).
If the citation is contested. or certification in any application.14 a (c). representation. 29 CFR 2200. The reasons why the employer needs additional time – e. Employers generally have a 15-day “grace” period before abatement must occur. 4.” 29 U.S. The specific amount of additional time needed.C. abatement is placed on hold while the employer contests the citation. 29 U.OSHAGUIDE.000 PER DAY for each day the violation is not corrected past the correction date. 29 U. This coincides with the employers’ 15-day period in which to file an appeal of the citation.37 (c). construction or alteration cannot be completed in time. A safer practice is to file the PMA before the abatement period expires. The correction dates for each violation can be found on the face of the citation. unavailability of technical experts. Criminal penalties of $10. § 659 (c). They must be filed before the close of the next working day following the date on which abatement was originally required. § 666 (g). Certification that the PMA was posted 10 days in a conspicuous place sufficient to give all affected employees notice of the PMA. 5. the employer’s notice of contest must be made “in good faith and not solely for delay or avoidance of penalties. 2. Thus. § 659 (b). 29 CFR 1903. or both.S. 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. can be imposed for knowingly making any false statement.S. 3. If the citation is not contested. then the employer must abate the violations. However.000 or six months imprisonment.g. record.C. The interim steps being taken to protect the employees during the abatement period. PMAs are filed with the OSHA Area Director. If there is no objection to the PMA by employees or authorized employee Page 23 . OSHA now requires that the employer submit written Abatement Certification to the OSHA Area Director as proof of abatement. The steps and dates of all employer actions to achieve compliance within the abatement period. 29 U. the employer should exercise extreme care when completing abatement certification documents.. Employers may be assessed penalties of up to $7.C.COM Abatement “Abatement” is the OSHA term for correcting the violation. § 666 (d). PMAs must contain the following information: 1.S. lack of material or equipment.C. plan or other document required by the OSH Act.
then the Occupational Safety & Health Review Commission (OSHRC) will rule on the PMA. 117 F. 29 U. No penalty is assessed because the violation is determined to be rather trivial.C.A. However. v.. Wylie Construction Co. of the hazardous condition. Collins Construction Co. Inc.2d 69 (1st Cir.OSHAGUIDE. 9 OSHC 2126 (1981). If there is an objection to the PMA by employees.3d 691 (2d Cir. Employees were exposed or had access to the hazard. 3. D. The employer knew. 2. Secretary of Labor. The possibility of injury is very remote. Astra Pharmaceutical Products. The employer failed to comply with the cited standard. When the OSH Act was first established minor record keeping errors were felt to be de minimus. 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. 1997).. then OSHA has authority to rule on the PMA. or with reasonable diligence should have known. No injury would result. Page 24 . 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. In some jurisdictions this extends to cases where any injury would be trivial.COM representatives. 19 OSHC 2060 (2002).E. their authorized representatives or OSHA. § 658 (a). 1982). De minimus violations are now normally reserved for instances when: 1. affirmed in part 681 F. A technical violation occurred but no employees could be harmed by the violation. and. 12 OSHC 1962 (1986). Secretary of Labor v. that is no longer the case due to flagrant record keeping violations by many employers.. Classifications OSHA classifies violations into specific types.S. The standard is technically violated but the employer provides equivalent or better protection than the standard. Dun-Par Engineered Form Co. C.
Accordingly. 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.S. Repeat The maximum penalty for a repeat violation is $70. 154 F.C. employers should pay particular care to ensure that sufficiently clear language is contained in the settlement agreement to prevent settled violations as serving as the basis for repeat violations. However. OSHA FIRM § III-C-2-f-(3)-(a). be aware that some courts have interpreted settlement agreements pertaining to prior violations as “final orders. there was a final order against the “same employer” for “a substantially similar violation. 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. but it is usually much less than that. Otis Elevator Inc. Herman. 18 OSHC 2082 (2000). § 666 (a). OSHA must show that the same employer was cited once before for the same or substantially similar violation. OSHRC. § 666 (c). Inc. The maximum penalty for a “Serious Violation” is $7.3d 400 (7th Cir. whichever is later.S. v. § 666 (k).000.” The maximum penalty for an Other Than Serious violation is $7. a repeat violation can be established by showing that the same standard was violated. disabling burns. A “Repeat Violation” occurs if. 2002). fractures. different standards can also result in a repeat violation if the hazard involved was substantially similar..000.S. However.” 29 U.C. Same or Substantially Similar Violation: Of course.. OSHA FIRM § III-C-2-f-(4)-(c). 7 OHSC 1061 (1979).C.3d 43 (1st Cir. Page 25 . a “Serious Violation” is a violation where there is a “substantial probability that death or serious physical harm could result. etc. Accordingly. 1998) (mechanical machine guarding and electronic eye both involved same pinchpoint hazard). Caterpillar. Thus.000. § 666 (b). 29 U. OSHA must also show that the previous citation became a final order.” Modern Continental Construction Co.OSHAGUIDE. at the time of the alleged repeated violation.C. 29 U. 29 U. 29 U.” Potlach Corp. An “Other Than Serious Violation” is more serious than a de minimus violation but less serious than a “Serious Violation. § 666 (k). This also applies to contractors and other employers with non-fixed worksites. the employer can best avoid repeat violations by showing that the prior citation involved different conditions or hazards. 305 F.S.S.C. Examples of “serious physical harm” are amputations. v.COM Other Than Serious An “Other Than Serious Violation” is a violation that will not result in death or serious physical harm. Serious As noted above. Secretary of Labor v.
This can be done at the informal conference level. § 666 (a). OSHRC. 2001). denied 423 U. 1072 (1976). Inc. 1979). Violation of a broad standard is more apt to provide the basis for a subsequent repeat.OSHAGUIDE. 2000). Joe Minerals Corp.3d 1123 (D... Caterpillar Inc. v. 181 F.C.C. the federal OSHA states of Alabama.3d 378 (6th Cir. Intercounty Construction Co. 1981). See also Alden Leeds.3d 1232 (11th Cir..2d 777 (4th Cir.) cert. 295 F. 19 OSHC 1883 (2002).. Construction. § 666 (d). Other jurisdictions have defined a willful violation as one committed with “intentional disregard” or “plain indifference” to the requirements of the OSH Act. Dakota Underground. Failure to abate exists if the violation was never corrected. Failure to Abate versus Repeat Violation: The issue is whether or not the violative condition was brought into compliance following the initial inspection. 268 F.000 per day can be imposed if an employer fails to correct a violation. Marshall. 809 F. 29 U. However. 2002).2d 840 (8th Cir. Rebutting Willfulness: Employers can rebut a charge of willfulness by showing that they made good faith efforts to comply with requirements of the standard. Inc.COM The employer may also avoid future repeat violations by having broad general violations reclassified as specific code violations.3d 564 (8th Cir. Kaspar Wire Works. 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. St. 200 F. Willful The most serious violation is a willful violation. However.2d 161 (1st Cir. Penalties of $7. Herman. 1987). Secretary of Labor. Georgia Electric Co. 578 (1999)..3d 437 (7th Cir. National Engineering & Contracting Co. 122 F. OSHRC. v. SC Development Corp. OSHRC. 29 U. OSHRC. v. National Steel & Shipbuilding Co. 1979). the Eleventh Circuit (i. 647 F. v. an employer’s mere knowledge of a standard and subsequent violation of that standard is insufficient to prove a willful violation. It is a repeat violation if the condition was corrected following the initial inspection but subsequently developed again. Secretary of Labor. v. Inc. Florida and Georgia) Page 26 ..C. OSHA FIRM § III-C-2-f-(6).2d 309 (5th Cir.S. which has a maximum penalty of $70. Morello Bros. If a specific standard is more applicable. A “Willful Violation” does not require malicious intent or an obstinate refusal to comply. 298 F.000.. 607 F.e. Secretary of Labor v. Cir. Brock v.3d 256 (3d Cir.2d 311 (9th Cir. 522 F.S. Inc. A willful violation exists if the employer knowingly decided not to comply with the safety standard. 595 F. v. cert. 1975). 2002).Ct.000 and a minimum penalty of $5. OSHRC. v. OSHRC. Fluor Daniel v. the employer should request reclassification if it concedes that a violation occurred. 1997). v. denied 120 S.S.
1978). Cir. 29 CFR § 1910. § 666 (e). OSHA uses the general duty clause as a “catch-all” provision. The more recent trend is for courts to hold that a general duty clause violation may exist. 29 U. 295 F.OSHAGUIDE.C. Reasonable efforts at compliance have been held sufficient even though they are incomplete or not entirely effective. General Dynamics Land Systems Division. although incorrect. . 122 F. OSHA will cite the employer for violations of the general duty clause when hazards exist that are not covered by specific standards. 19 OSHC 1638 (2001).C. This is known as the “General Duty Clause” which provides: “Each employer . Ladish Malting Co. United Automobile Workers v. 815 F. the employer may be liable for a fine of up to $10. § 654 (a)(1). Empire-Detroit Steel v.3d 484 (7th Cir. 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.3d 437 (7th Cir. will defeat a showing of willfulness. 2002). Some critics have argued that the “General Duty Clause” imposes strict liability on employers. Co. 568 F.. .S. OSHRC. Fluor Daniel v. 1998). six months in prison. or both. MJP Construction Co. § 654 (a)(1). 1987). Marquette Mfg.S.2d 902 (2d Cir. v. or both. 135 F. See also Caterpillar Inc. Usery v. This applies to observable conditions that a reasonable person would deem hazardous.. the general duty clause is limited to “recognized hazards.” 29 U.000. It also applies to Page 27 .COM appears to have rejected a good faith defense for willful violations.000. shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.2d 378 (6th Cir. imprisonment up to one year.C.2d 1570 (D. if the specific standard was inadequate to protect the employees. despite compliance with a specific standard. 1977). A second conviction is punishable by a fine of up to $20.3d 1232 (11th Cir. United States v. OSHRC. Some cases have even held that the employer’s good faith interpretation of a safety standard. However. 579 F. v. 1997)..5 (f). Older court decisions have held that a more specific safety standard can preempt the general duty clause.C. OSHRC.” 29 U. Secretary of Labor..S. Some regulations indicate that employers should not be cited for general duty clause violations if hazards are addressed by more specific safety standards. The legislative intent was to protect employees in hazardous situations for which standards had not yet been adopted. A recent case has also If a willful violation causes the death of an employee.
(3) correcting employer.3d 828 (8th Cir. Otherwise. 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. v. (2) exposing employer. An exposing employer’s obligation depends on whether it has the authority to correct the hazard.” 29 U. 1973). and (2) it failed to take reasonable steps to protect its employees. (4) controlling employer. or should have known of the hazard. Exposing Employer: An “exposing employer” is one whose own employees are exposed to the hazard. The general duty clause is also limited to hazards that “are likely to cause death or serious physical harm. 295 F. Accordingly. National Realty & Construction Co.” National Realty & Construction Co. Step One: Determine for each employer which of the following four categories it comes under: (1) creating employer. OSHRC. by definition. Creating Employer: A “creating employer” is one that causes a hazardous condition that violates a safety standard. Cir. 489 F.OSHAGUIDE. § 654 (a)(1) [emphasis added].S. Multi-Employer Situations Who is responsible for enforcing safety regulations when the employee works for more than one employer? Who is responsible for enforcing safety regulations on a worksite with several employers? These are common questions for general contractors. or. No Correction Authority: If the exposing employer has no correction authority it must Page 28 .C. even under the rather loose standard of the general duty clause. OSHRC.2d 1257 (D.C. Compliance Officers follow a two-step process to determine which employers are cited. supra. OSHA Instruction CPL 2-0. 2002). a violation may not exist if the hazard was unforeseeable or if an accident was the result of freakish or implausible circumstances. Step Two: Determine whether the employer met the obligations imposed on its particular category. It has an obligation not to create the hazard. Industry recognition is established by “the common knowledge of safety experts who are familiar with the circumstances of the industry or the activity in question. 1. OSHA’s Multi-Employer Citation Policy In 1999. a creating employer always fails to meet its obligation. 2.124 clarified the agency’s policy regarding multi-employer citations. it would not be called a “creating employer. v.COM conditions generally recognized as hazardous by the employer’s industry. Thus. This element stands for the proposition that the risk of serious physical harm must be foreseeable. Jordan v. NUCOR.” Creating employers can be cited if any employees at the site (including those of other employers) are exposed to the hazard.
S. The good faith of the employer. and The employer’s history of previous violations. The penalty limits for the different classifications are: Classification Other Than Serious Serious Repeat Willful Unabated Maximum $ 7.S.) $ 7.000 ($5. as the exposing employer and is responsible for correcting the hazard.C. § 666 (c) 29 U.000 $70. Page 29 .S.000 $ 7. 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.000 per day OSH Act 29 U.000 $70. For example.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.S. including the power to correct safety and health hazards. For example. § 666 (b) 29 U. a controlling employer would need to perform more frequent inspections if the subcontractor had a poor safety history. discovering and correcting the hazard.OSHAGUIDE.C. 4. The gravity of the violation.S.C. or on the same worksite.C. In imminent danger situations the exposing employer is expected to remove its employees from the job. The size of the business.C. § 666 (a) 29 U.S. and (3) take reasonable alternative protective measures. Control can be established by contract or. § 666 (d) Penalty Factors The OSH Act provides in 29 U. 2. 3. a correcting employer might be given responsibility for installing or maintaining safety equipment. 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. § 666 (j) that penalties shall be assessed on the basis of four factors: 1. Correcting Employer: A “correcting employer” is one that is engaged in a common undertaking.000 min. § 666 (a) 29 U. The correcting employer can be cited if it fails to exercise reasonable care in preventing. Controlling Employer: A “controlling employer” is one that has general supervisory authority over the worksite. in the absence of a specific contract provision. by exercising control on the worksite. A controlling employer can be cited if it fails to exercise reasonable care in preventing and detecting violations on the site.C. such as guardrails.
chronic. Low Probability: The probability of an injury or illness occurring is categorized either as “greater” or “lesser. it is very important during the inspection for the employer to point out those factors which reduce the probability of an accident occurring .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. OSHA FIRM § IV-C-2-e. Injuries and illnesses resulting in hospitalization or a variable but limited period of disability. 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. the use of personal protective equipment (PPE). Medium and Low: High Medium Death. The severity assessment is ranked High. limited exposure during the day.e.. 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. Greater Lesser The likelihood of injury or illness is relatively high. proximity of employees to the hazardous conditions. whether the employer has a medical surveillance program. limited access to the hazard. permanently disabling injuries. other pertinent working conditions. frequency and duration of exposure.” OSHA FIRM § IV-C-2-f-1.OSHAGUIDE. If the employer qualifies for penalty reductions they will be deducted from the GBP to arrive at a final penalty amount. etc. Page 30 . Severity: The severity assessment is based on the most serious injury or illness which could “reasonably be expected” to result from the employee’s exposure. The likelihood of injury or illness is relatively low. OSHA FIRM § IV-C2-d. Accordingly. Injuries and illnesses not requiring hospitalization and requiring only minor supportive treatment. irreversible injuries. few employees exposed.g.
000 Probability Lesser Greater OSHA defines the “gravity” of a violation by the GBP.000 SERIOUS Severity Rating Low Medium High $1.000 -$7.500 GBP of $1. the Compliance Officer then arrives at the final GBP.000 to $3. 29 U. After deducting adjustments. § 666 (j).500 $2.. The employer can receive a 25% reduction if it has implemented “an Page 31 .000 $2.000 or greater GBP of $2. Size of the Employer OSHA’s Field Inspection Reference Manual (FIRM) allows penalty reductions based on the size of the employer.500 Penalty Reductions The OSH Act states that other penalty factors to consider are the size of the business. the good faith of the employer and the employer’s history of previous violations. OSHA FIRM § IV-C-2-i-(5)-(a). High Gravity Moderate Gravity Low Gravity GBP of $5. The Table below illustrates: GRAVITY-BASED PENALTY (GBP) TABLE – unadjusted GBP OTHER THAN SERIOUS Probability No Severity Rating Lesser $0 Greater $1.COM Gravity-Based Penalty (GBP) The Compliance Officer.500 $3.000 -$7.e. These other factors can result in adjustments (i. after considering severity and probability factors. will arrive at an unadjusted gravity-based penalty (GBP).OSHAGUIDE.S. reductions) to the unadjusted gravity-based penalty (GBP). Employees 1-25 26-100 101-250 251 or more Percent Reduction 60% 40% 20% None Good Faith Penalty reductions are also allowed based on the Compliance Officer’s determination of the employer’s good faith.500 $5. OSHA FIRM § IV-C-2-i-(5)-(b).500 $2.C.
” OSHA FIRM § IV-C-2-l-(1).” The safety program must be written but in exceptional cases small employers (1-25 employees) can receive a 25% reduction if they have an efficient safety program which has not yet been reduced to writing. History of Previous Violations A 10% reduction is allowed for employers who have not been cited by OSHA for any serious. However. Penalties for Repeat of an “Other Than Serious” Violation 1st Repeat 2nd Repeat 3rd Repeat $200 $500 $1.000 Page 32 . 5 2nd Repeat GBP x 4 If more deterrence GBPx 10 needed $70. For example.OSHAGUIDE.COM efficient safety and health program” or the safety program “has deficiencies that are only incidental. willful or repeated violations in the past three years.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. Repeat violations are only eligible for a penalty adjustment based on size of the employer.000 max.500 (greater probability – medium severity). 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. if the GBP for a “Serious” violation found during the current inspection is $3. 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. See GBP Table at Page 30. OSHA FIRM § IV-C-2-i-(5)-(c). the penalty for a smaller employer violating the same standard for the third time (2nd repeat) would be $14.500 GBP x 4).000 max.
000 Gravity Combining & Grouping Violations Combined or grouped violations are normally considered as one violation and are assessed one gravity-based penalty (GBP).000 $36. Each item on the citation has a corresponding penalty and correction date.500 $44. A citation “item” is listed on the face of the citation for each violation.500 GBP of $1. Thus. size adjustments are at one-half of the normal amount.500 $33.000 $63. the adjustments are as follows: Size Adjustment 1-25 employees 26-100 101-250 251 or more Good Faith Adjustment History Adjustment 30% 20% 10% None None 10% For willful “Serious” violations.000 $56.000 Low $40.000 minimum penalty mandated by the OSH Act.000 $42.000 Moderate $55. OSHA FIRM § IV-C-2-h.000 minimum penalty.000 or greater GBP of $2.COM Penalties for Willful Violations OSHA calculates the penalty of a willful violation based upon the “gravity” of the underlying “Serious” violation. However.000 to $3.000 $28.000 $25. OSHA FIRM § IV-C-2-m-(1). See GBP Table at Page 29.OSHAGUIDE. each instance of the violation is still separately set out within that item of the citation. OSHA uses the $5. OSHA FIRM § III-C-5-a.000 $32. For Page 33 . History adjustments are at the normal rate. 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. For willful “Other Than Serious” violations. Good faith adjustments are not allowed at all. OSHA uses a $25.000 $38.500 However. In practice. Id. for willful violations. 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 $49. High Gravity Moderate Gravity Low Gravity GBP of $5.
one for each of the five machines. Page 34 . the Compliance Officer can look at all of the violations collectively to determine the gravity of harm. 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. 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. instead of one paragraph below the heading describing the violation. For example.g. However. However. In practice. OSHA will fine the employer for each instance of the violation even though they apply to the same standard. it is evident that “instance” refers to each time a particular standard is violated. The egregious penalty structure is also referred to as “per-instance” or “violation-by-violation” penalties. those five violations will be combined to form a single citation item. might result in a low severity rating. combined violations result in a single citation item (and one penalty) whereas egregious violations result in multiple citation items thereby multiplying the number of penalties. The egregious penalty structure is the mirror opposite of the penalty procedure for combined violations. The term “instance” is not defined but when read in context with other provisions of the OSHA FIRM using that term. if those violations all contribute to form a single hazard. grouping usually results in a higher gravity-based penalty (GBP) because it raises the level of probability and/or severity.120 $2. For example. Below the item heading will be five separate paragraphs. if taken individually.00 Correct by 10/15/03. there will be multiple paragraphs – one paragraph for each instance of the violation. five separate machines left unguarded in the same manner). Perhaps an analogy would be an airplane crash. However.500. OSHA FIRM § III-C-5-c-(4). a single item on a citation might have the heading. However. the gravity of harm is much greater when the mistakes are grouped together. each of those mistakes would not result in an accident. OSHA FIRM § III-C-5-b. on the face of the citation there is one heading with a corresponding penalty and correction date. violations of different standards. Thus..OSHAGUIDE. Individually. The crash might be the result of many small mistakes. those same mistakes taken together result in the airplane’s crash. OSHA FIRM § IV-C-3. The item heading on the citation will cite the machine guarding standard only once and there will be one penalty and one correction date. Egregious Penalties In egregious cases. “Item 1-1 Failure to Bolt 29 CFR 1926.COM example. if there are five separate violations of the same machine guarding standard (e. In both cases the same safety standard is involved. detailing how the guarding standard was violated on that particular machine.
If there were eleven instances. and (2) failure to provide employee training under the asbestos standard to those same eleven employees.000 x 11).OSHAGUIDE.000. 6. The employer has an extensive history of prior violations of the Act. Multiple instances of violating the same standard. 29.5 million dollars. The violations resulted in persistently high rates of worker injuries or illnesses. if the employer’s conduct is determined to be egregious. would normally be combined to form a single citation item with one penalty of $70.000. The egregious penalty structure has come under increased scrutiny because of a relatively recent court decision by the Occupational Safety & Health Review Commission (OSHRC). _____ OSHC _______ (Sept.80. 3. If willful penalties can be called OSHA’s enforcement “hammer” then the egregious penalty structure is OSHA’s “sledge hammer. The employer has intentionally disregarded its safety and health responsibilities. 4.COM For example. then each instance of the violation will result in a separate citation item. 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.1101(h)(1)(i) which pertained to the 11 alleged respirator violations and 29 CFR 1926. However. Page 35 . a work-site catastrophe. OSHA deemed the employer’s conduct egregious and assessed “per-instance” penalties on a “per-employee” basis which resulted in a citation totaling 1.1101(k)(9)(i) and (k)(9)(viii) which pertained to the 11 alleged failure to train violations. The violations resulted in worker fatalities. Eric K. then the total penalty arising from just that one standard would be $770. which provides that the violations under consideration must be willful AND at least one of the following other categories must also apply: 1. 5.000 ($70. The employer’s conduct taken as a whole amounts to clear bad faith in the performance of his or her duties under the Act. a willful violation of a particular standard might result in a penalty of $70.” The factors that OSHA examines in determining whether egregious penalties should be applied are found in OSHA Instruction CPL 2. 2. or a large number of injuries or illnesses. In the Ho decision. 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. 2003).1 The OSHRC held that “per-instance” penalties on a “per-employee” basis 1 The cited standards were former 29 CFR 1926. Ho.
The respirator standard merely stated that the employer shall provide respirators and ensure their use “during all Class 1 asbestos jobs.. In determining whether the underlying standards were addressed to employees as a class or individually.2 OSHA relied on both cases as supporting penalties on a per-employee basis. Page 36 . OSHA was unable to provide a consistent interpretation as to what constituted an individual instance of the violation. Hartford Roofing held just the opposite and stated.COM were not appropriate in this particular case. The employer’s conduct was not egregious and penalties were assessed “perinstance” – not “per-employee. there can be only one violation of the standard. 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. 3. the OSHRC was persuaded by the fact that a single act of abatement (providing respirators or providing a training program) would abate each of the eleven “per-employee” violations. In fact. However. OSHA misinterpreted two of the lead cases discussing “per-instance” penalties. The OSHRC distinguished Caterpillar because it was one of the early “per-instance” cases assessing penalties for individual record keeping infractions.” The other employee training standard did use the phrase “each such employee. The OSHRC ruled against “per-employee” penalties for the following reasons: 1. not individually..” One of the employee training standards was specifically addressed to employees as a group by stating that the employer should “institute a training program for all employees. The plain language of the respirator and employee training standards addressed employees as a group.OSHAGUIDE. Thus. 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. OSHA contended that separate violations occurred “per employee.” However. Inc. Caterpillar and Hartford Roofing. the standards by their plain terms do not provide employers with fair notice that they may be penalized on a per-employee basis. There was no dispute that the employer was what one could only charitably call a “bad actor. Inc. Caterpillar had nothing to do at all with tying “per-instance” penalties to the alleged egregious conduct of the employer. On the one hand. 17 OSHC 1361 (1995).” Hartford Roofing was distinguished because it did not support penalties on a per-employee basis.” 2. “where a single practice method or condition affects multiple employees. 15 OSHC 2153 (1993) and Hartford Roofing.” The OSHRC used even stronger language and stated: While we agree that Ho is one of the worst employers the Commission has had come before it.” On the other hand.
per-day basis. The fines are called “Proposed Penalties” because they are just that. Congress expressly granted to the OSHRC the sole authority to determine penalties. it appears that the egregious policy. six months in prison. Court of Appeals. may run afoul of their sense of “equal treatment under the law. 4.OSHAGUIDE. U. the employer may be liable for a fine of up to $10.C. OSHA could conceivably cite an employer on a per-employee. Quite the contrary. CRIMINAL PENALTIES Under the OSH Act. 29 U.COM respiratory protection. § 666 (f). employers are also subject to criminal penalties in certain situations.000. or both.000.” 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. However. The OSHRC noted that they were not bound by OSHA’s proposed penalties. In the absence of a consistently applied interpretation. OSHA was incorrect that the OSHRC must defer to the agency’s decision to prosecute a case on a per-employee basis. or both. as currently applied. proposals by OSHA. Giving advance notice of an inspection Any person who gives advance notice of an inspection can be fined up to $1.S. 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. representations or certifications to OSHA Criminal penalties of $10. This is commonly referred to as a “criminal willful violation. OSHA Administrator John Henshaw issued a statement announcing that OSHA was appealing the Ho decision to the Fifth Circuit.S. or both. 29 U. can be imposed for knowingly making any false statement. 2003.”] 5.000. On December 8.” [Although not expressly stated by the Commission.S. § 666 (e).C. imprisonment up to one year.000 or six months imprisonment. The OSHRC felt that OSHA’s interpretations conflicted because under the latter interpretation. employers are penalized differently for the same violative conduct merely because OSHA determines some of them to be “bad actors. imprisoned up to one year. employers can be criminally prosecuted if they willfully violate a specific safety standard that causes the death of an employee. General Duty Clause violations are exempt from criminal liability. A second conviction is punishable by a fine of up to $20. Page 37 . or both. False statements.
Sundays and federal holidays. 29 U. The criminal sanctions can double if a dangerous weapon is used. Employers may also be subject to criminal liability under State statutes in addition to the criminal sanctions imposed under the OSH Act. a citation will be issued setting dates of correction for each of the violations. Forcibly Resisting or Assaulting a Compliance Officer Any person who forcibly resists or assaults Department of Labor personnel (e. or both. 534 NE2d 962 (1989). The citation document is formally called a “Citation and Notification of Penalty. Page 38 . 128 Ill. (2) the abatement period. plan or other document required by the OSH Act. 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. reversed on other grounds 510 NE2d 1173 (Ill. 29 CFR § 1903. See Illinois v. The employer must give OSHA written notice that it disagrees with the citation. courts have been rejecting such “preemption” arguments.C. cert. 1987). (3) the penalty amounts. In States which opted out of federal enforcement but do not have approved State Plans.OSHAGUIDE. Chicago Magnet Wire Corp.COM representation. or certification in any application. 29 U. A civil monetary penalty for each of the violations will also likely be assessed. In States with federally approved State Plans prosecutors enforce the criminal sanctions of those plans. denied 493 US 809 (1989. 126 Ill. Criminal prosecution under the federal OSH Act is relatively rare but may increase as a result of OSHA’s Enhanced Enforcement Program (EEP). More common is criminal prosecution in States with State Plans.C.. liability is based on general criminal statutes. Dec.” 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.21 (c).” The employer has the right to contest the citation if it disagrees with any of the following: (1) the alleged violations.S.S. The filing is timely if it is postmarked within the 15-day period. described more fully in the prior section of the manual discussing EEPs. 29 CFR § 1903. The term “working days” excludes Saturdays. However. CONTESTING A CITATION Filing the Notice of Contest If the Compliance Officer observes safety or health violations. App.17 (a). impris0ned up to three years. § 666 (g). 29 CFR § 1903. or. OSHA Compliance Officers) can be fined up to $5.17 (a).2d 356.000. 517. record.g. § 659 (a) . The Notice of Contest is submitted to the OSHA Area Director.
)” WARNING: Many jurisdictions NOT regulated by federal OSHA. 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.18 (a). 1903. employers will often present mitigating factual information that was not brought to light or focused on during the inspection. An example of broad. Thus. the employer must make sure that the Notice of Contest is timely filed even if settlement appears close. and/or proposed penalties. If the employer concedes that the violations occurred. Failure to contest part of citation can be considered a waiver of any defenses to that portion of the citation. Informal Conference After receiving the citation. To facilitate settlement. However. abatement period. The informal conference will not stay the 15-working-day period in which to file a Notice of Contest. However. The written Notice of Contest does not need to be in any particular format. do not accept broad contest language. Thus. most notably California.COM Regular first-class mail is sufficient for filing. the employer is still required to abate the violations within the specified abatement period if it is only contesting the penalty amounts.20. Employers also will sometimes request that a general violation be reclassified as a specific violation..OSHAGUIDE.” 29 U. Case Referral & Pleadings Page 39 . the employer can request an informal conference with OSHA. proposed penalties.S. However. general contest language is. If the citation is contested.C. The primary purpose of the informal conference is to discuss the alleged violations. OSHA will hold the informal conference before the expiration of the 15working-day contest period. return receipt requested. and to correct errors contained in the citation. This is because a general violation is more subject to providing the foundation for a repeat violation. “(Insert employer name) disagrees with and contests all alleged violations. abatement dates. Even so. 29 CFR §§ 1903. whether the employer disagrees with the citation. § 659(b). it must clearly identify the employer’s basis for filing the Notice of Contest – i.17 (a).e.15 (a). most employers use the informal conference to negotiate an informal settlement agreement with OSHA. 29 CFR § 1903. The request should be submitted to the OSHA Area Director. citations. 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. A better practice is to send the Notice of Contest by certified mail. it can use the informal conference to extend the abatement dates. many employers favor broadly worded Notices of Contest. 29 CFR § 1903.
The complaint sets forth the alleged violations and the rationale behind the abatement period and penalty amounts. time and location. 29 CFR § 2200.34 (b)(3). There is no formal mediation under the OSH Act or the procedural rules of the OSHRC. 29 CFR § 2200. It provides the initial forum for hearing contested cases under the OSH Act.34 (b)(1). OSHA must file a complaint with the OSHRC.g. 29 CFR § 2200. 29 CFR § 2200. A few weeks following the answer.60. However. Within 20 days of receiving the Notice of Contest. will refer the case to the Occupational Safety Health & Review Commission (OSHRC). the ALJ will mail the parties a Notice of Hearing and Instructions. The employer’s answer must also include any affirmative defenses that it wishes to raise. Attorneys represent OSHA. However.COM The OSHA Area Director within 15 days of receiving the Notice of Contest. etc. Rulings concerning the admission of evidence and on submitted motions can seriously affect the outcome of a particular case. Employers and employees both have the right to participate in the hearing. The employer must file a written answer within 20 days of being served with OSHA’s complaint. OSHA has the burden of proving each of the elements of the violations listed in the citation. § 661 (f). 29 CFR § 2200.33. employee misconduct. The parties are entitled to 30 days advance notice of any hearing. or the citation involves a serious injury or willful violation. 29 CFR § 2200. 29 U.34 (a). At hearing. litigation of contested citations is becoming increasingly complex and hearings are conducted pursuant to the procedural rules set forth by the OSHRC. Hearing Procedure The OSHRC assigns the case to an Administrative Law Judge (ALJ) who schedule and preside at the hearing. 29 CFR § 2200. Employers can represent themselves or be represented by attorneys. This document advises the parties of the hearing date. Accordingly. 29 CFR § 2200.2. The employer’s answer is a plain statement denying all allegations in the complaint that it wishes to contest. greater hazard.OSHAGUIDE.34 (b)(2). The OSHRC is an independent agency not affiliated with OSHA or the Department of Labor. Failure to raise affirmative defenses in the answer may prevent the employer from relying on them at hearing – unless the judge finds that the employer raised the defense as soon as practicable.34 (a)(2).. Legal representation is especially advisable if the employer has a problem with repeat violations.C. the Federal Rules of Evidence apply. the employer might wish to have an attorney present to ensure a level playing field. In the absence of OSHRC rules. It also gives the parties instructions for the conduct of the hearing including the exchange of evidence. The OSHRC encourages settlement at this level.51 (b). etc.e. The employer has the burden of proving any Page 40 .34 (b)(4). 29 CFR § 2200.S. 29 CFR § 2200. the parties can sometimes accomplish much the same purpose by requesting a pre-hearing conference with the ALJ.
Each of the parties can call witnesses. 3. or 4. Its purpose is to provide a simpler and less expensive method of resolving less complex contested citations. Circuit Court of Appeals.S. 29 CFR § 2200. § 661 (j). No willful or repeat violations. 29 CFR § 2200. After considering the evidence.91. introduce evidence and conduct cross-examination. Page 41 . E-Z Trial In 1995. Such cases generally include one or more of the following characteristics: 1.S. The ALJ made findings of fact not supported by a preponderance of the evidence.90. 2. A prejudicial error was committed.91 (b). § 660 (a). it has 60 days to appeal the order to the appropriate U. the OSHRC introduced the E-Z Trial procedure. 3.200 (a). 2.000. 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.OSHAGUIDE. The ALJ’s recommended decision is also filed with the OSHRC. 29 U. No fatality. policy or abuse of discretion is involved.66. 29 U. 29 CFR § 2200. The employer can also file a Petition for Discretionary Review by the OSHRC. The OSHRC then has 30 days to adopt the ALJ’s decision or recommend review by the full Commission. 29 CFR § 2200. The ALJ can recommend that the citation items and/or penalties be affirmed. Proposed penalty less than $10.69. 4. 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. To be eligible. Relatively few citation items. 29 CFR § 2200. 29 CFR § 2200.C. the ALJ makes a recommended decision that is transmitted to the parties. The party with the burden of proof must establish the fact by a “preponderance of evidence” (more probable than not). modified or eliminated. cases must not involve complex factual or legal issues.S. Hearing expected to take less than two days. The parties can file written briefs with the ALJ and request transcripts of the hearing to facilitate preparation of the briefs. A substantial question of law. 5. The grounds for review are as follows: 1.COM affirmative defenses. The ALJ’s decision is contrary to law.C. If the employer disagrees with the final order.
Saugus Construction Corp. The above items are not “defenses” that the employer has to prove. by OSHA. EMPLOYER DEFENSES Attacking OSHA’s Burden of Proof The best defense is a weak offense . 19 OSHC 1404 (2001). N & N Contractors. and employer knowledge. OSHA must prove the following elements by a preponderance of the evidence to establish a violation: 1. . OSHRC. v.. Discovery is not permitted except as ordered by the ALJ.2d 69 (1st Cir.. v. Collins Construction Co. OSHRC. they are elements that OSHA must prove to establish a violation.3d 815 (6th Cir. R.e. the most effective defense is to demonstrate that OSHA failed to produce sufficient evidence of one or more of the elements -. OSHA provides employer with documents early in the proceeding. 9 OSHC 2126 (1981). and. applicability of the standard. of the hazardous condition. employee exposure to the hazard. This is understandable because the rules are vast and cover several industries and innumerable processes. There are times when the Compliance Officer may not properly understand the applicable rules. ALJ usually issues decision from the bench. the employer knew. Inc. 3. 2001). 1997).. 166 F. D. Thus. 4.A. Secretary of Labor. Oral arguments instead of written briefs. Federal Rules of Evidence do not apply. non-compliance with the standard. affirmed in part 681 F. Inc. A Compliance Page 42 . 19 OSHC 1431 (2001).i. Rather.COM E-Z Trial procedures are simplified in a number of ways: Complaints and answers are not required. Carbone Construction Co. Hearings are less formal.3d 122 (4th Cir.. Precision Concrete Construcion.P.3d 691 (2d Cir. v. 255 F.OSHAGUIDE. the employer failed to comply with the cited standard. . 1982). 1998). employees were exposed or had access to the hazard. or with reasonable diligence should have known. 117 F. Applicability of the Standard & Non-compliance Applicability of the Standard: OSHA must show that the cited standard is applicable. 2. Astra Pharmaceutical Products. the cited standard applies.
the paraphrased statements might be inaccurate or incomplete. etc. Non-compliance with the Standard: Employer experts can sometimes show that. the employer will often have several experts within it’s own company (e. 19 OHSC 1305 (2000). Construction Co. training dates omitted. “potential” exposure is gaining more acceptance. For example. An employer expert can sometimes show that the cited standard did not apply. Inc. The inspection report often contains employee statements paraphrased in written notes by the Compliance Officer.i.. licensed engineers. evidence that the employee was actually in the “zone of danger. Early federal cases held that in order for employee exposure to exist there must be direct physical endangerment . even if the standard applied. There are also situations where non-compliance is based on faulty factual information.e. the zone of danger. this is their business. Employee Exposure Traditionally.” The early cases often focused on “employee access” to the area and the boundaries of the danger zone. 255 F. N&N Contractors. The Compliance Officer often has less comparative expertise than the employer expert in the employer’s particular field.. it was not actually violated. 2001). the employer can often use expert testimony to its advantage. etc. or will contact. it is always recommended that the employer review the inspection report with the employees interviewed by OSHA to check for errors. OSHA generally relies on testimony from the Compliance Officer and the officer’s inspection report to establish its case. The more recent trend is that OSHA need only show that it is “reasonably predictable” that employees have contacted. After all.OSHAGUIDE. lack of employee access still bears on whether exposure was reasonably predictable. certified safety professionals. OSHRC. S&G Packaging Co. D. experts can demonstrate that the employer was actually in compliance given the employer’s particular set of circumstances. Some Compliance Officers may have prior experience in private industry but not usually to the extent that their testimony would be considered “expert testimony. Accordingly. employer experts might show that OSHA interpreted the standard incorrectly. Thus. Likewise. Essentially. experts can explain that the employer was in compliance given a correct interpretation of the standard. Even so.” On the other hand.. the issue has been whether OSHA must show “actual” employee exposure versus “potential” employee exposure. Accordingly. this becomes a “battle of the experts” between the Compliance Officer and the employer expert. However. v.3d 122 (4th Cir.).COM Officer is by nature a generalist and cannot be expected to be an expert in all fields. In other words.T. Errors in the inspection report will sometimes establish that the employer was actually in compliance with the standard. Lack of employee exposure can sometimes be established by showing that employees did Page 43 . There have been instances where machines were misidentified.g. 19 OSHC 1503 (2001).
The constructive knowledge problem presents something of a “Catch-22” for the employer. 19 OSHC 2001 (2002).. The lack of employer knowledge can sometimes be established if the employer (including supervisory staff) were unaware of the hazard. of the violative condition.. 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. Ingram Plastering Co. In this situation. § 666 (k). 2002). 29 U. If he did not know of the condition he may come across as uninvolved or exhibiting a failure to train and supervise. 295 F. 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.COM not have access to the area of the alleged hazard because it was protected by guards. warning signs. Trinity Marine Nashville Inc. OSHRC. or with the exercise of reasonable diligence should have known. See also Secretary of Labor v. In other words.OSHAGUIDE. OSHA led the employer “down the garden path” by letting it believe that it was in compliance. Accordingly. 19 OSHC 1015 (2000). Thus.. Procedural Defenses Defective Inspection OSHA must follow certain procedures when it performs an inspection. the issue is whether the employer had knowledge. The employer knowledge requirement does not refer to employer knowledge of the applicable safety codes. 18 OSHC 1937 (1999). 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. 29 CFR § 2200.73 (a). S&G Packaging Co. employer knowledge defenses generally only succeed if the lack of knowledge was reasonable.S. an employer will be presumed to have “constructive knowledge” if the condition could have been discovered with reasonable diligence. If he knew of the condition he had knowledge.. N & N Contractors Inc.C. Fluor Daniel v. Rather. The courts have been rejecting such arguments. Procedural arguments usually fail unless OSHA did Page 44 . OSHA then has the burden of showing that the employer’s failure to discover the condition was due to a lack of reasonable diligence. An employer cannot defeat the knowledge requirement by being willfully ignorant of his surroundings. 18 OSHC 2121 (2000). Ragnar Benson Inc. etc. Employer Knowledge OSHA must prove that the employer knew. barriers.. the employer must show that it conducted adequate safety inspections but still failed to discover the violative condition. 19 OSHC 1503 (2001). or constructive knowledge.3d 1232 (11th Cir.
COM not substantially comply with procedural requirements and. Inc. Accu-Namics. supra. 1977) (foreman was deemed agent in charge). 576 F. the presentation of OSHA credentials is similar to a police officer “flashing his badge” to prove his identity. because there is no right to privacy if the violations occurred in public or in plain view of the Compliance Officer.. Early cases focused on whether the employer’s right of accompaniment.. This issue most often arises in cases where the premises owner and/or senior management officials are absent from the workplace..S. OSHA’s failure to comply prejudiced the employer. The Compliance Officer then “grabs” a foreman and conducts the inspection anyway.2d 828 (5th Cir. Dorey Electric Co. an employer could conceivably argue that there was no substantial compliance if credentials were presented well after the inspection began. Some employers have argued that an improper inspection resulted if the Compliance Officer presented credentials to the wrong person.k. Steel Corp.2d 809 (10th Cir. Upon arrival.2d 357 (4th Cir. 1975) cert. the Compliance Officer will present his or her “credentials” which usually consists of an official badge or OSHA identification card. 1978) (most “senior employee” left at the site deemed agent in charge).a. 1 OSHC 1751 (1974).C. § 657 (e). Thus. If no credentials were presented at all. denied 425 U.” were mandatory or optional. 903 (1976). or agent in charge of the workplace. 553 F. The OSHRC has held that. OSHRC. the Fourth Amendment right to privacy must apply.” 29 U. & I. although the presentation occurred one hour after the inspection began. § 657 (a). OSHRC. Accu-Namics. Marshall v.F.C. the courts will examine whether this failure resulted in substantial prejudice to the employer. v. Accu-Namics. 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. Improper Presentation of Credentials: The OSH Act conditions an inspection upon the proper presentation of credentials to the “owner. operator. further. Inspections are still proper. In practice. [See this manual’s prior discussion of privacy interests in the section “Warrant Exceptions.S.C.. Inc. 516 F. v.” 29 U.” 29 U. Drum Construction Co. 18 OSHC 1927 (1999).S.. In order for prejudice to occur. “walkaround rights. Inc. The courts never reached a clear consensus on this Page 45 .OSHAGUIDE.S. despite the failure to present credentials. Inc.”] 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. OSHA contends that such inspections are permissible because the Compliance Officer presented credentials to the “agent in charge of the workplace.. § 657 (a). A similar issue involves the late presentation of credentials after the beginning of the inspection. a. C. the Compliance Officer substantially complied with the credentials requirement.
even though a hazard existed. Conversely. OSHRC. C.OSHAGUIDE. there would be no prejudice if the employer constructively waived its walkaround rights. 1976). One court also has held that there is no prejudice if the employer can present the same mitigating factual information at the hearing. Thomas A. Inc. Presumably. unable to assert its walkaround rights and present mitigating information. 19 OSHC 2060 (2002). Apparently. 560 F. Id. 540 F.2d 947 (8th Cir.COM issue. v. 903 (1976). General Electric Co. Likewise. § 658 (c). Inc. 7 OSHC 2232 (1979). employees did not have access to the hazard during the six-month period.” 29 U.. In practice. Accu-Namics. OSHRC. 535 F. Chicago Bridge & Iron Co. the cases also suggest that the employer would be prejudiced if OSHA refused the employer’s request to participate in the inspection.. Inc.. denied 425 U. OSHRC. the emphasis shifted to whether there was substantial compliance by OSHA and whether the employer was prejudiced. there was no mitigating information that could explain away the photographs. 1 OSHC 1751 (1974). Prejudice is normally considered the employer’s opportunity to present mitigating factual information during the inspection. Even so. Secretary of Labor v. prejudice would occur if the employer was unaware of the inspection and.C. Marshall v. Wylie Construction Co. the employer would be unlikely to prevail if OSHA’s refusal was based on lack of cooperation or obstruction of the inspection. 1976). Instead. It is insufficient for the Compliance Officer merely to surmise that employees were “probably” exposed to the hazard.2d 67 (2nd Cir. However. v. For example it may be the case that. 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. v.2d 828 (5th Cir. It appears that the most common method of computing the six-month period is to count forward from the date of the inspection. the lack of employer prejudice appears to outweigh the Compliance Officer’s failure to substantially comply with inspection procedures. Thus. 516 F.2d 371 (7th Cir. therefore.S. There also would be no prejudice if the employer affirmatively waived its walkaround rights by declining to participate in the inspection. The OSHRC rejected the employer’s argument that its walkaround rights were violated on the grounds that the employer was not prejudiced. Defective Citation Late Citation – Statute of Limitations: A citation cannot be issued more than “six months following the occurrence of any violation.. Western Waterproofing Co. Galante & Sons. Accordingly.E. the Compliance Officer took photographs from the parking lot before presenting himself to the company office. On the other hand. A constructive waiver would occur if the employer was aware of the inspection but refused to cooperate or participate in the inspection. 1977).. 1975) cert. the six-month period generally begins to run on the day that the Page 46 . a longstanding violation can be cited as long as employees were exposed to the hazard in the six months preceding the citation. In one recent case. 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.S. Accu-Namics.
hampered the employer’s ability to prepare a defense. 3 OSHC 1026 (1975). the strongest affirmative defense is “Employee Misconduct. Brock v. “prejudice” would mean that the citation was too vague and. Implementing the safety standard is not feasible. In short.S. the employer has the burden of proving the following affirmative defenses: 1. B.E. Affirmative Defenses An “Affirmative Defense” means that the employer has the burden of proof. Harrison Lumber Co. Citing the standard and providing a description of the violation also provides the employer with sufficient information for abatement. Similarly. 4. 2002). In other words. Employee Misconduct The most frequently used and. This satisfies the due process requirement that the employer have fair notice of the alleged violations so that it can prepare an adequate defense. Inc..S. an employer also might be able to argue “lack of particularity” in the original citation in a subsequent citation for failure to abate.. or order alleged to have been violated.” 29 U.” This defense also goes by several other names such as “Unpreventable Employee Misconduct. The Page 47 . Dow Chemical U.. v. perhaps.3d 256 (3d Cir.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. rule. Lack of Particularity – Citation Too Vague: The citation must “describe with particularity the nature of the violation. 2. 18 U. Meyers Co.OSHAGUIDE. The violation is the result of employee misconduct. 298 F.2d 1303 (5th Cir. Accordingly. 18 OSHC 1323 (1998). See Marshall v. Alden Leeds.W. 1978). Rather.” etc.S. 3. the citation must reference the safety standard and describe how the standard was violated. standard. L. § 3238. L & B Products Corp. More specific safety standards apply.2d 926 (7th Cir..C. regulation.A. OSHRC. the citation must describe the hazardous condition sufficiently enough to put the employer on notice of what must be corrected. Employers should be aware that the six-month “statute of limitations” for citations does not apply to criminal violations of the OSH Act. including a reference to the provision of the Act. 569 F. In this situation.. Compliance increases the hazard. The employer must show prejudice to assert the “lack of particularity” defense. therefore. the criminal statute of limitations applies which is usually the five-year statute of limitations for federal non-capital crimes. 801 F. 1986).” “Isolated Incident Defense. and. § 658 (a).C.
It is not enough that the employer has a safety program written on paper. 19 OHSC 1653 (2001). 1997).. 117 F. 107 F. 1979). 18 OSHC 1815 (1999). v. Southern Soya Corp. 1988). In practice. v. “Practical Infeasibility” means that compliance would not be practical because it would be impossible to perform the work . OSHA. Inc. There are two reasons for this.3d 691 (2nd Cir. There are three types of infeasibility.. D. 15 OSHC 1809 (1992). Pride Oil Well Serv.2d 1135 (8th Cir.. Supervisor Misconduct: A supervisor’s misconduct will very rarely shield the employer from safety violations. The net effect is that employers face greater liability for supervisory misconduct. To establish an employee misconduct defense.COM essence of this affirmative defense is that the employee violated company safety policies and that such conduct was not preventable. v. P. 115 F. The essence of this defense is that compliance would make it functionally impossible or infeasible to perform the work and that alternative means of employee protection were either used or not available. As a result. CMC Electric. Similarly.3d 861 (6th Cir.. 843 F. cannot erect guards because of limited work space. “Economic Infeasibility” means that the cost of compliance would be prohibitive. The first reason is that supervisor misconduct can be evidence that the employer’s safety program was not effective or adequately enforced. OSHRC. 7 OSHC 1477 (1979). (2) the work rules were effectively communicated to the employees. Jensen Construction Co.A. 599 F. 1997). some employers have argued that the disobedient supervisor was actually an employee in order to take advantage of the employee misconduct defense. 1997).. The second reason is that the actions of the supervisor are often imputed to the employer. 19 OSHC 1311 (2000). “Technological Infeasibility” means that it is technologically impossible to make a machine or process comply with current standards. Raytheon Constructors. 2000). v. the employer must prove: (1) it had work rules designed to prevent such conduct. Secretary of Labor. Brock v. Infeasibility/impossibility is a tough burden for the employer to meet. (3) the employer took steps to discover violations of the work rules. Collins Construction Co. mere inconvenience or added Page 48 . General Dynamics Corp.e. 18 OHSC 1929 (1999). of Leesville..3d 157 (3rd Cir. The defense fails if compliance is possible.2d 453 (1st Cir. DunPar Engineered Form Co.g. Inc. and (4) the work rules were adequately enforced when they were violated. Infeasibility/Impossibility This defense requires the employer to prove that compliance with the standard is not feasible. this means that the employer’s safety program goes on trial. Inc. There must be some evidence that the employer actually enforced the safety program when it was violated. Inc. E&R Erectors.. 1 OSHC 1412 (1973). 221 F. Gioioso & Sons. v. Reynolds Inc. OSHRC.. George Campbell Painting Corp. Secretary of Labor.OSHAGUIDE. Stevedoring Services of America.3d 100 (1st Cir.
COM expense is not sufficient. 1989).S. despite these memoranda of understanding. 235.S. § 653 (b)(1). 20 F. Mallard Bay Drilling. Preemption by Another Federal Agency A citation may also be invalid because OSHA does not have jurisdiction over the employer. It is expected that OSHA’s enforcement powers will continue to expand in relation to the federal government. These “Memoranda of Understanding” can be viewed on OSHA’s website.S.2d 1327 (6th Cir.C.S. v. 122 S. U. employers may have a defense if they reasonably believed that other federal regulation applied. In addition to proving the greater hazard. 1978). the general trend has been for OSHA to assume more control over occupational safety and health. The court will also examine the degree to which the federal agency actually exercises its authority over safety and health. Reich.OSHAGUIDE. Chao v. Herman. 1997). 1994). Dole v. However.2d 186 (D. Pennsuco Cement & Aggregates. 1994). OSHA and several units of the federal government developed an “understanding” concerning those areas over which OSHA would have jurisdiction. 131 F. it appears that federal agency preemption only applies where federal agency standards and OSHA standards address the same conditions. This is known as “preemption. Bancker Construction Corp. Page 49 . Marshall. Caterpillar Inc. OSHA v. OSHA also has jurisdiction over the U. & Others Early on. 738 (2002) (Coast Guard general marine safety regulations did not preempt OSHA standards). Williams Enterprises Inc.3d 32 (2nd Cir. Inc. Army. 29 U. v.. OSHRC.. 585 F. 876 F.3d 666 (7th Cir. OSHA now has jurisdiction over all military facilities in the state of New Mexico. For example. OSHA can enforce its own safety standards. 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.Ct. Greater Hazard This defense requires the employer to prove that compliance would be more hazardous than noncompliance. The U. 31 F. Loomis Cabinet Co.S.” Even if preemption does not apply.. Inc. Military. Cir. v.3d 938 (9th Cir. OSHA does not have jurisdiction where the federal government has maintained control over employee safety and conditions. Diebold Inc. 534 U. the employer is subject to safety and health regulations promulgated by the other federal agency instead of OSHA. USPS. 8 OSHC 1378 (1980). Postal Service pursuant to the Postal Employees Safety Enhancement Act of 1998. In that case.S. Thus. In areas where no federal standards exist.C. OSHA even issued a citation to West Point – the military academy for the U. the employer must establish that there are no alternative means of employee protection and that a variance application was inappropriate or rejected. v.
OSHA will offer ways to upgrade the employer’s programs and will make periodic visits to monitor the employer’s progress. OSHA’s Consultation Service “OSHA’s consultation service provides free. will still be investigated in the usual manner. etc. 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. onsite assistance in developing and implementing effective workplace safety and health management systems. 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.COM LOSS PREVENTION SERVICES If the employer wishes to take some precautionary measures prior to an inspection. The frequency of the periodic visits depends on the employer’s VPP level. accidents.” “Consultation assistance is available to small employers (with fewer than 250 employees at a fixed site and no more than 500 corporatewide). “Demonstration” level participants are evaluated annually. etc. “Star” level participants are evaluated every 3 to 5 years. will still be investigated in the usual manner. complaints. Again. or 2 years upon renewal.. 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.OSHAGUIDE. complaints. SHARP Program OSHA’s Safety and Health Achievement Recognition Program (SHARP) is basically a more extensive long-term version of the VPP program.. accidents. Page 50 .” VPP Program OSHA’s Voluntary Protection Program (VPP) is basically a more extensive safety consultation. 2002). No penalties are proposed or citations issued for hazards identified by the consultant. OSHA consultation assistance will not provide the employer’s name or workplace information to OSHA enforcement. Of course. as well as limited assistance away from the worksite. The program is more demanding but in exchange the employer is granted deferral from all programmed inspections for a period of 1 year initially. Employers may also receive training and education services. 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.
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. Since OSPP membership is corporate. in some States. Independent Safety Consultants Independent safety consultants are also a good resource. Comprehensive OSPP’s concentrate on establishing comprehensive safety programs at partnering worksites. OSPP’s are the newest of OSHA’s cooperative programs. and government to foster improvements in workplace safety and health. cooperative relationships between OSHA. Services Provided by Others Workers’ Compensation Carriers In some States the employer’s workers’ compensation carrier is required to provide free loss prevention services. They keep a log of their contact with the employer and such information can be useful if an inspection occurs. this type of specialized help does not come free but it is very often well worth the cost. 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. Again. lower workers’ compensation premiums. there is no exemption from inspections for partnering worksites. universities and other government agencies. These partnerships are voluntary.OSHAGUIDE. and others such as trade unions. this is at no cost to the employer. management. Of course. employers. Page 51 . rather than individual. Limited OSPP’s focus on specific safety and health issues. employee representatives. The benefit is combining resources and knowledge within the group to reduce injuries. etc. These services are implemented by the carrier’s Loss Control Consultant.COM OSHA’s Strategic Partnership Program (OSPP) “OSHA Strategic Partnerships are alliances among labor. Loss Control Consultants are a good resource and can assist the employer in developing and implementing the required safety programs. Loss Control Consultants should be contacted in the event of an inspection.” There are two types of OSPP’s: Comprehensive and Limited.
Amended Citation . can be imposed for knowingly making any false statement. Abatement Certification .e.An unprogrammed (i.OSHA now requires that the employer submit written Abatement Certification to the OSHA Area Director as proof of abatement. Accident Investigation .34 (b)(1). This person can consent on the employer’s behalf to a warrantless inspection or be the employer representative during an inspection. usually to assert an affirmative defense. The employer’s answer is a plain statement denying all allegations in the complaint that it Page 52 .A Notice of Contest that is amended by the employer. Thus. Administrative Law Judge (ALJ) . unscheduled) inspection made to determine the cause of an accident. § 666 (g).The employer must file a written answer within 20 days of being served with OSHA’s complaint.OSHAGUIDE.” OSHA has the option of doing a follow-up inspection to assure that the hazard was corrected.C. This should be filed as soon as the employer becomes aware of an affirmative defense. representation. the employer should exercise extreme care when completing abatement certification documents. the employer must notify OSHA that the hazard has been corrected or “abated. After the citation.The manager. foreperson or other person in charge or control of all or part of the place of employment. plan or other document required by the OSH Act. Affirmative Defense .An inspection following the citation to verify abatement of the violations listed in the citation. Criminal penalties of $10. superintendent.. record.The Occupational Safety & Health Review Commission (OSHRC) official who initially decides a contested citation hearing.000 or six months imprisonment. Answer . 29 CFR § 2200. or certification in any application. Amended Notice of Contest .COM GLOSSARY Abatement . 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.The OSHA term for correction of the violation.A defense in which the employer has the burden of proof. or both. ALJ decisions are reviewed by OSHRC which either adopts the ALJ’s opinion or issues a decision of its own. Penalties for failure to abate (or “nonabatement”) can be as high as $7. Amendments are liberally granted.A citation changed by OSHA. Agent of the Employer .S. However. Abatement Inspection .000 per day for each day past the correction dates set forth in the citation. 29 U.
S.OSHAGUIDE.The monetary fines assessed by OSHA for safety violations.The document issued by OSHA after the inspection to cite violations. Complaint . 29 CFR § 2200. Citation . Closing Conference . The employer has the burden of proof when it is asserting an affirmative defense.” 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. 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.The conference between the Compliance Officer and the employer conducted after the inspection process is completed. 29 CFR § 2200. Such information may. greater hazard. Appeal .g. etc. It is more formally called a “Citation and Notification of Penalty. The circuit courts are the forum for contested citations on appeal from the Occupational Safety & Health Review Commission (OSHRC). The complainant’s identity will be kept confidential if the complainant so requested. The employer’s answer must also include any affirmative defenses that it wishes to raise. OSHA always has the burden of proof in establishing a violation. If the complainant did not request confidentiality.34 (b)(4). In the case of a contested citation.Information received by OSHA that a safety standard is being violated. Circuit court decisions that are appealed go to the U. Notice of Contest) within 15 days of its receipt of the citation.Another term for contesting a citation.S. 2nd Circuit.e. The term “Circuit Court” is sometimes used because the U. result in an inspection. and it is Page 53 . 29 CFR § 2200. Circuit Court – One of the terms used to refer to the United States Courts of Appeal.34 (b)(2).com to obtain contact information for all OSHA Area Offices. You can go to the “OSHA Links” page at www. Combined Violation . Burden of Proof . Civil Penalties . Area Director – The Director of an OSHA Area Office. For example. seven machines in violation of the same machine-guarding standard would result in only one violation of that standard. Courts of Appeal are divided into 12 federal circuits – 1st Circuit. employee misconduct. the standard is the “preponderance of the evidence” (more probable than not).oshaguide. Supreme Court.e. The employer must file the appeal letter (i.COM wishes to contest.34 (b)(3). An OSHA Area Office is located in most States.This refers to the OSHA practice of combining multiple violations of the same standard into a single violation.The legal standard for weighing the evidence. and usually does. etc..
Consultation Service . Courts of Appeal are divided into 12 federal circuits – 1st Circuit. or agent in charge before conducting the inspection.A procedural defense available to the employer when the citation does not comply with statutory or administrative rule requirements. This term is sometimes used because the citation requires abatement of the violations and contains correction dates for abatement. Page 54 . The term “Circuit Court” is also used because the U. It often bears a photograph of the Compliance Officer. To prevail.OSHAGUIDE.F.The Compliance Officer’s official OSHA identification card.An unprogrammed inspection made in response to a complaint. Those standards are found in the Congressional Federal Register (C. The consultation will not directly result in a citation or civil penalty. Contested Case .001).One of the terms used to refer to the United States Courts of Appeal. Several States also impose separate criminal penalties under State statutes addressing occupational safety and health.S. Supreme Court. 29 CFR 1910. etc. Complaint Inspection .The term used to refer to the employer’s appeal.OSHA can create and adopt specific safety standards regulating work practices and processes such as fall protection. The circuit courts are the forum for contested citations on appeal from the Occupational Safety & Health Review Commission (OSHRC). Compliance Officer (CSHO) . of the citation. or “contest”. more formally called a “Compliance Safety & Health Officer” or “CSHO. The Compliance Officer must show his credentials to an owner. etc. Defective Citation .” Congressional Federal Register (CFR) .R. the employer must remember that it is unlawful employment practice to discriminate against an employee for making a complaint. supervisor.g.The OSHA employee who conducts the inspection. Credentials . the employer must usually show that OSHA failed to substantially comply with the regulation AND that OSHA’s failure to comply prejudiced the employer. Criminal Penalties . machine guarding. 2nd Circuit.) and are referred to by their federal CFR number (e.Penalties resulting in imprisonment or criminal monetary fines under the Occupational Safety & Health Act. Correction Order – A seldom-used term to refer to a citation.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. Court of Appeals . Circuit court decisions that are appealed go to the U.S.COM disclosed that an employee made the complaint.
Employee Representative .A person designated by the employees to be their representative. Employee . the closing conference and the inspection. . a citation must be specific enough so that a reasonable person would know the manner in which the standards were allegedly violated.COM Defective Inspection . The net result is that the total penalty amount of the citation is significantly increased. the employer must prove: (1) it had work rules designed to prevent such conduct. This category includes most private and public employees. and (4) the work rules were adequately enforced when they were violated. Emphasis Inspection . Employer . Employee Misconduct Defense .An affirmative defense available to the employer.The broad category of persons afforded protection under the OSH Act. To establish an employee misconduct defense.S.OSHAGUIDE. Emphasis Program .Generally. 29 U. Egregious Penalty Structure .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 constitutional requirement that the government put citizens on notice of the specific requirements of a law before it imposes sanctions for violating that law. (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. In the OSHA context.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. § 658 (a). 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. To prevail. No penalty is assessed because the violation is determined to be rather trivial. Page 55 .A penalty structure developed by OSHA to address extreme cases of willful violations. it means that an OSHA standard must be specific enough so that a reasonable person would be put on notice of its requirements. Due Process . If a willful violation is deemed to be egregious then each instance of the violation can be cited separately.The broad category of persons subject to regulation under the OSH Act. Similarly. the employer must usually show that OSHA failed to substantially comply with the regulation AND that OSHA’s failure to comply prejudiced the employer. De Minimus Violation .C. The employee representative has the right to participate in the opening conference.
Field Notes .OSHA’s internal resource manual that instructs Compliance Officers on inspection procedures. . a very long-term construction site could be considered a fixed place of employment. etc. The employer representative also has the right to be present at the opening conference. OSHA FIRM § IV-C-2-d. Fatality . Hearings are less formal.A work accident resulting in an employee’s death. the OSHRC introduced the E-Z Trial procedure which is a simpler and less expensive method of resolving contested citations.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. 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. E-Z Trial procedures are simplified in a number of ways: Complaints and answers are not required.A person designated by the employer to be its representative when dealing with OSHA. OSHA uses the general duty clause as a “catch-all” provision. (See “Agent of the Employer” above).COM Employer Representative . Fixed Place of Employment .OSHAGUIDE.C. the closing conference and the inspection. probability and severity assessments. § 654 (a)(1). IN some cases. General Duty Clause .Employers have a general duty under the OSH Act to protect their employees from recognized hazards and to provide them with a safe place of employment.The 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. Field Inspection Reference Manual (FIRM) . It can also be the person in charge at the time of the inspection.In 1995. Federal Rules of Evidence do not apply. OSHA will cite the employer for violations of the general duty clause when hazards exist that are not covered by specific standards. E-Z Trial . To be eligible. Gravity Based Penalty (GBP) . If the employer qualifies for Page 56 . This is known as the “General Duty Clause” which provides: “Each employer .000.” 29 U.An employer facility at one general location.S. . 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. 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. The employer representative can request a warrant or consent to a warrantless inspection. ALJ usually issues decision from the bench. cases must not involve complex factual or legal issues and the proposed penalty must be less than $10. and other related matters.
technological or economic considerations.” 29 U. Loss Control Consultant .COM penalty reductions they will be deducted from the GBP to arrive at a final penalty amount.OSHAGUIDE. violation. Infeasibility/Impossibility Defense .A citation that is defective because it is issued more than “six months following the occurrence of any violation.A condition. resolve the issues and reach a settlement. Grouped Violation . 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 .The representative from the employer’s workers compensation carrier who assists the employer in developing and implementing safety programs and policies. Page 57 . § 658 (c). that the employees were protected by alternative measures and that a variance application was futile or denied.” It refers to the “Safety and Health Protection on the Job” poster which must be displayed in the workplace.A temporary order requested by the employer that will waive compliance with a specific standard while the employer’s variance request is being processed.C. Greater Hazard Defense . The employer must prove that compliance creates a greater hazard than noncompliance. more serious. The employer must prove the compliance is virtually impossible due to practical. The employer must also prove that there were no alternative means of employee protection available.An affirmative defense available to the employer.S.This refers to OSHA’s practice of grouping multiple violations of different standards that affect the same hazard into a single. Job Poster . which has a lost workday incidence rate higher than the national average for all employers. Informal Conference . identified by SIC code. practice or act that could result in an injury to illness to the employee.An affirmative defense available to the employer. It informs the employees of their rights under the Occupational Safety & Health (OSH) Act.Usually defined as an industry group. Interim Order . The goal is to discuss the citation.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. Inspection . Hazard . High Hazard Industry .This is also referred to as the “OSHA Poster” or the “Safety Poster.
Penalties for failure to correct (or “non-abatement”) can be as high as $7. but it is usually much less than that. Appeals of OSHRC decisions are heard by the U. The employer’s written notification is formally called a “Notice of Contest. 29 U.S.COM Loss Prevention Services . (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.S. Courts of Appeal . OSH Act . Lost Workday Injury (LWDI) Rate . 29 U. The OSHRC either adopts the ALJ’s opinion or issues a decision of its own. Other Than Serious Violation .OSHAGUIDE. 29 U. Department of Labor that reviews the decisions of the Administrative Law Judge (ALJ) that presided over the contested case hearing. The number of LWDI’s can be obtained from the employer’s OSHA 300 log. For an exact calculation the employer should contact its workers compensation carrier Loss Control Consultant.S. The employer must give OSHA written notice that it disagrees with the citation.The preliminary conference between the employer and the Compliance Officer prior to the start of the inspection.000.” The maximum penalty for an Other Than Serious violation is $7.000 divided by the sum of employee hours worked in the reference years. Notice of Contest .The OSH Act refers to the federal Occupational and Safety and Health Act of 1970. (3) the penalty amounts.” Public Law 91-596.S.The employer has the right to contest the citation if it disagrees with any of the following: (1) the alleged violations. The Compliance Officer will explain the purpose of his visit and identify the persons to accompany him during the inspection. Non-abatement . Page 58 .The statistic used by the Compliance Officer to determine employer trends in injuries and illnesses.C. (See “Loss Control Consultant” above). § 666 (c). 29 U.000 per day for each day past the correction date. § 659 (a). An “Other Than Serious Violation” is more serious than a de minimus violation but less serious than a “Serious Violation.S.” Opening Conference .C. The formula for calculating the employer’s LWDI Rate is: the sum of lost workday injuries (LWDI’s) in the reference years x 200. Occupational Safety & Health Review Commission (OSHRC) – The OSHRC is a body independent from OSHA and the U.C. or. § 651 et seq. The Notice of Contest is submitted to the OSHA Area Director.The employer’s failure to correct the violations within the correction dates set forth in the citation. It is also referred to as “The Williams-Steiger Occupational Safety & Health Act of 1970.S. The statistic is intended to reflect the number of lost workday injuries experienced by 100 full-time workers.An “Other Than Serious Violation” is a violation that will not result in death or serious physical harm. § 666 (k).The free consulting services provided by many workers compensation carriers.C.also referred to as “circuit courts.
OSHA 300 Log – This replaces the OSHA 200 log. is a log of each recordable injury and illness.S. § 651 (b). Reductions can never be below the minimum penalty amount set forth by statute or administrative rule. (3) OSHA Form 301. Penalty . Summary of Work-Related Injuries and Illnesses. However. every working man and woman in the Nation safe and healthful working conditions . the term “OSHA 300 Log” is also used collectively to refer to the following three forms required by OSHA: (1) OSHA Form 300.The federal agency responsible for enforcing the Occupational Safety & Health Act. (See “Criminal Penalties” above). PMAs are filed with the OSHA Area Director.37 (c). The other federal regulation “preempts” the OSHA standard. OSHA has an “understanding” with many governmental units that are set forth in “Memorandum(s) of Page 59 .14 a (c).The general term encompassing penalty reductions and penalty increases. OSHA .S. Preemption . is the employer’s annual summary of occupational injuries and illnesses of its employees.A defense available to certain employers if another governmental agency regulates the same conduct cited by OSHA. Petition for Modification of Abatement (PMA) . Penalty Reduction . The OSHA 300 log technically refers to OSHA Form 300. They must be filed before the close of the next working day following the date on which abatement was originally required. Penalty Adjustment . 29 CFR 1903. § 659 (c). An OSHA Area Office is located in most States.C. increases can never be above the maximum penalty amount set forth by statute or administrative rule. 29 CFR 2200.The Director of an OSHA Area Office. Log of Work-Related Injuries and Illnesses. The forms and instructions can be downloaded from OSHA’s website. (2) OSHA Form 300-A.oshaguide.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.Petitions for Modification of Abatement (PMAs) are used if the employer does not contest the citation but needs more time to correct the violations. Employers are subject to civil and sometimes criminal penalties if they violate the OSH Act. OSHA Area Director . The Compliance Office will review these forms during an inspection and verify that they have been posted properly. .C. Criminal penalties can also be assessed in certain situations.OSHAGUIDE. Injury and Illness Report. 29 U. . Likewise. is an incident report form that must be completed for every recordable injury or illness entered on OSHA Form 300.A reduction in the penalty amount for meeting certain criteria set forth in the “Penalty Reductions” section of this manual. 29 U. You can go to the “OSHA Links” page at www.COM The purpose of the OSH Act “is to assure as far as possible.
29 U. The probability ratings are “Greater” and “Lesser” depending on whether the likelihood of injury or illness is high or low. and.The federal classification system. Safety Codes . (See “Non-abatement” above). OSHA FIRM § IV-C-2-e. § 666 (b).S. etc. 1917.C. 1918.One of the factors considered by the Compliance Officer in assessing the penalty amount for a violation. These Probability Rating . The standards are divided into four broad categories: (1) General Industry. which classifies employers by an industry code representing the type of activity performed.001). The severity assessment is based on the most serious injury or illness which could “reasonably be expected” to result from the employee’s exposure. 29 CFR Part 1910. 29 CFR Part 1926. Repeat Violation . Examples of “serious physical harm” are amputations. Page 60 . (4) Agriculture.A violation that is not corrected by the correction date listed on the citation. accident statistics.A “Serious Violation” is a violation where there is a “substantial probability that death or serious physical harm could result. Referral Inspection .g.COM Understanding” that can be viewed on OSHA’s website.000. disabling burns.A comprehensive inspection scheduled on the basis of neutral administrative criteria such as location. are found in the Code of Federal Regulations (CFR) and are referred to by their federal CFR number (e. The maximum penalty for a “Serious Violation” is $7. 29 CFR 1910.Specific safety standards regulating work practices and processes such as fall protection. Medium and Low. § 666 (k). OSHA will multiply the current penalty according the formula set forth in the “Penalties for Repeat Violations” section of this manual. Serious Violation . Severity Assessment . (3) Maritime & Longshoring.OSHAGUIDE.An unprogrammed inspection triggered when another government employee observes a safety violation and reports it to OSHA..An employer’s second or subsequent violation of a standard previously cited by OSHA inspection in the previous three years.C. 29 CFR Part 1928.S. Programmed Inspection . etc. (2) Construction. Unabated Violation . The severity assessment is ranked High. For a repeat. Standard Industrial Classification (SIC) . machine guarding. 29 CFR Part 1915. fractures. memoranda often address when preemption applies.” 29 U. etc. Each industry is assigned an SIC code. 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.One of the factors considered by the Compliance Officer in assessing the gravity-based penalty (GBP) amount for a violation.
if the employer foresees that it will be unable to comply. OSHA’s Office of Variance Determinations processes variance applications.The United States Code (U.C.The term used when OSHA decides to abandon all or part of the citation.C.) . Title 29. The warrant must set forth probable cause for the inspection.000. (4) the employer knew.000 to $70.C. Walk-Through .A “Willful Violation” does not require malicious intent or an obstinate refusal to comply. § 657 (a)(1). It can also refer to the employer’s withdrawal of a Notice of Contest.COM United States Code (U. A willful violation exists if the employer knowingly decided not to comply with the safety standard. the Compliance Officer will be attempting to identify safety code violations.” 29 U. During the walk-through. other than compliance with the safety standard.The document obtained by OSHA if the employer denies entry to all or part of the premises for the purpose of an inspection. until a final determination is made on the variance application. the Compliance Officer will conduct a tour of the business premises. or with reasonable diligence should have known. Withdrawal . Willful Violation . Sections 651 to 678. A willful violation will be assessed a penalty of $5. An “interim order” grants to employers temporary authority to use alternative means of employee protection.S. (3) employees were exposed or had access to the hazard.S.C. (2) the employer failed to comply with the cited standard. of the hazardous condition. Variance (Application for) .S. Page 61 . The OSH Act is contained in U. “programmed”) such as an accident..e. § 655 (b)(6).” The Compliance Officer is authorized to conduct an inspection “during regular working hours and at other reasonable times.) is the body of law created by the United States Congress.An inspection in response to an event that cannot be scheduled (i. Warrant . A “variance” means that the employer is excused from complying with the specific health standard.OSHA must prove the following elements by a preponderance of the evidence to establish a violation: (1) the cited standard applies. complaint.S. the employer can apply to OSHA for a variance. Criminal sanctions can be imposed if a willful violation causes the death of an employee. Unprogrammed Inspection . 29 U. 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.Upon the issuance of a new rule. While variance applications are pending employers can also request an interim order. and.After completion of the opening conference.C. Chapter 15. and within reasonable limits and in a reasonable manner. referral by another government employee or in follow-up to a previous inspection.S.OSHAGUIDE. This is referred to as a “walk-through” or “walkaround. Violation . or that it will be unable to comply in time.
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