Choosing to appeal an Occupational Safety and Health Administration (OSHA) violation can kick off a costly legal process but it may turn out to be cost-effective if that means you can avoid repeat violation penalties in the future, according to attorneys Melanie L. Paul and Kristina Vaquera of the Jackson Lewis law firm.
“It is more important than ever that employers understand the serious long-term, non-monetary consequences of settling or accepting OSHA citations,” they point out. “One danger of settling OSHA citations is later being cited for repeat, willful, or failure to abate violations and put on the road to significant additional costs and enforcement activity.”
They recommend that employers should dedicate their resources to ensure any violations that are upheld are correct (for example, a serious, instead of willful, violation). A potential repeat or willful violation carries a maximum penalty of $156,259 per violation and can trigger greater enforcement activity, such as inclusion in OSHA’s Severe Violator Enforcement Program.
Paul and Vaquera cite examples of how employers can successfully challenge citations, illustrated by OSHA administrative law judge (ALJ) post-trial orders. These vacated citations were issued as final orders of the Occupational Safety and Health Review Commission (OSHRC), which is the quasi-judicial body established to oversee enforcement actions by OSHA.
In one case, a company was contracted to paint a rolling gate in front of a loading dock of a casino. The gate was installed by a different company. Although it was not fully functional, no one at the original contractor was aware of this. When the company’s employees went to move the gate, it fell and one of the employees was fatally crushed by its weight.
OSHA cited the original contractor. The crux of the issue was whether the company was sufficiently and reasonably diligent in evaluating safety hazards associated with work on the gate. The relevant OSHA standard requires “frequent and regular inspections of the job sites, materials and equipment to be made by competent persons.”
However, the OSHRC judge rejected OSHA’s argument that there was non-compliance under the standard, because the company had a policy requiring daily inspections and completion of forms that identified any hazards and how to address them. Specifically, the ALJ rejected the argument that the company should have known of the violation, because employees reasonably reviewed the area diligently and, based on their experiences, there were no apparent safety issues.
Doing a similar analysis of non-compliance and employer knowledge, the ALJ also rejected OSHA’s claim that the company did not instruct employees about the hazard associated with the gate, under the standard because the specific hazard was not known or reasonably known to it.
“This is significant because these are often OSHA’s go-to regulations for construction standards when there are no other applicable standards to cite, but they are often harder to prove than OSHA believes,” Paul and Vaquera observe.
Other decisions can revolve around assessments about whether the employer can be found to have pursued a reasonable course of conduct under the law. The ALJ rejected OSHA’s argument that the company violated the standard for continuing inspections during a demolition, stating there was “little guidance on how the term ‘continuing inspections’ is to be interpreted” and, without that specificity, what the company had done previously—pre-project inspections and daily inspections by a supervisor—could be considered reasonable conduct under the regulation.
According to the standard as it was written, an employer did not need to exercise constant supervision to show it exercised reasonable diligence to discover safety violations, the OSHRC ALJ held.
In another case, OSHA accused an employer of not properly documenting training before an incident where three employers were killed in an explosion. Although the surviving employees said they had been properly trained, OSHA disagreed and because of poor recordkeeping by the employer imposed a penalty of $129,336.
On appeal, while the OSHRC judge upheld the training violation, the violation was found not to have been willful and the ALJ downgraded it to being defined as a serious one, which reduced the penalty tenfold—to $12,934.
This case shows how difficult it can actually be for OSHA to prove a training violation, particularly when the training actually took place. In that case, OSHA has the responsibility of identifying specific deficiencies in the training, Paul and Vaquera explain.
“It also demonstrates the challenges of proving a heightened level of knowledge by an employer to justify a willful violation and correspondingly high penalty. In this case, it was worth it for the employer to litigate the case to avoid a willful violation in its OSHA history and lower the penalty significantly.”