Employers cited for violations of OSHA regulations often face hefty fines, greater oversight, higher insurance premiums and possible criminal charges — not to mention lost work because you have to disclose past OSHA violations on many public and private bids. It is important for employers to understand the process so that they do not overlook important strategies to defend against a violation.
The Citation process:
The process is triggered by an accident or employee/public complaint to OSHA about a safety issue. Other triggers include referrals from another agency (including law enforcement) and enforcement programs for high-hazard industries.
An OSHA inspector will show up to perform a walkaround. Cooperation is key, or at least the appearance of cooperation. Be courteous, but limit your answers to the specific issue that prompted the visit. Be careful of what you say. Admissions such as “I meant to fix that” can be used against the employer.
After the walkaround, the inspector may ask you to provide documents. Usually the inspector will request an OSHA 300 log. An OSHA 300 log is a record of serious injuries and illnesses that employers of more than 10 employees must maintain and post. OSHA publishes an exemption list which includes administrative offices and certain retail, finance, insurance, and real estate businesses. Preferably, ask the inspector if you can produce the documents later, as the documents may be at the home office, and you want to make sure the document production is complete and under the supervision of the company’s safety officer and/or attorney.
The inspector may also ask to perform one-on-one interviews. If a supervisory employee is being interviewed, the employee is entitled to have an attorney or management present. However, attorneys or management are not permitted for non-supervisory employees. If possible, the Company should interview the employee first.
Imminent danger citation:
If an investigator suspects an imminent danger safety issue, they will ask that the danger be fixed before work continues. If the employer fails to, the OSHA investigator may request an injunction prohibiting work until the danger is remediated. The best course of action is to agree to remove at-risk employees and remediate the safety issue. Otherwise, the business puts itself at risk for longer work stoppages.
Responding to a citation:
Do not assume you are safe if you have not heard anything immediately after the walkaround. OSHA has 6 months from the occurrence of a violation to write a citation. When receiving a citation from OSHA, an employer has two options: (1) agree to the citation, correct it by the date set in the citation, and pay any proposed penalty; or (2) contest the citation in writing within 15 business days. Informal discussions with OSHA and possible negotiations to have the type of violation downgraded and/or monetary penalties reduced are available before you have to agree or contest the citation.
A citation is contested at a hearing in front of an administrative judge employed by the Occupational Safety & Health Review Commission (“Commission”). The hearing mirrors a trial and includes procedural rules and examination of witnesses. While you may appear unrepresented, we strongly recommend that you hire an attorney.
If the administrative law judge rules against the employer, the employer can seek a full panel review from the Commission. The Commission’s ruling can then be appealed to the federal circuit court in which the violation arose or where the employer has its principal office.
How can employers protect themselves?
- Develop an internal reporting program that employees feel comfortable using so that they do not feel the need to initiate an OSHA complaint.
- Do not volunteer information to an investigator, only answer questions asked.
- Instruct your employees to ask for management to be present during walkarounds.
- Consider shutting down the site during the inspection to reduce the chance of additional violations.
- Take pictures during walkarounds. If cited, you will not have immediate access to pictures and videos taken by the investigator.
- Always request an informal conference during the 15 day period after the citation. At the informal conference you can discover additional facts and discuss penalty reduction, extension of dates, and deletion of citations.
- Hire an attorney familiar with the OSHA process sooner rather than later, providing them more avenues for a favorable resolution (e.g. negotiating through informal conference).
Bruce E. Loren, Brandon J. Camilleri and Kyle W. Ohlenschlaeger of the Loren & Kean Law Firm are based in Palm Beach Gardens and Fort Lauderdale. Loren & Kean Law is a boutique law firm concentrating in construction law, employment law, and complex commercial litigation. Mr. Loren has been certified in construction law by the Florida Bar since 2004, exemplifying the Bar’s recognition of his expertise. Mr. Ohlenschlaeger focuses his practice on construction law and a wide range of commercial litigation disputes. Mr. Loren, Mr. Camilleri and Mr. Ohlenschlaeger can be reached at: [email protected], [email protected] , [email protected] or 561-615-5701.
