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When Does OSHA Pay Attorneys’ Fees?

Oct. 24, 2019
Employers can get reimbursed if they are in the right and the agency is wrong.

It’s no secret that violations of the Occupational Safety and Health Administration (OSHA) regulations can cost an employer big time. In addition to everyday compliance costs, disruption of operations caused by inspections and paying for legal representation, potential penalties can add up quickly if accused of violating agency regulations.

As of 2019, other-than-serious violations max out at $13,260, serious violations can cost $13,260, repeat violations $132,598, willful violations $132,598, and failure to abate also can cost an employer up to $13,260 per day.

It may surprise you to learn that there are circumstances in which OSHA will actually pay an employer’s attorney’s fees, but only in cases where the employer is found to be in the right and OSHA is in the wrong. Nicholas Hulse and Travis Vance, attorneys with the law firm of Fisher Phillips, explain that in a situation where your company would like to contest a citation that you have good reason to believe was not justified and you are not sure if you can afford to pay an attorney to fight it, there may be relief under federal law.

The Equal Access to Justice Act (EAJA) may provide your company with an avenue for having the government foot the bill for your company challenging the citation, they point out. The EAJA allows for the award of attorney’s fees and other expenses to eligible parties in certain administrative proceedings, including those before the Occupational Safety and Health Review Commission (OSHRC), which is charged with hearing appeals of OSHA cases that have been challenged by employers.

Under the law, an employer seeking an award must be successful in the adjudication of the case before OSHRC. “Successful” essentially means that the OSHRC found that the agency’s position in the proceeding was not justified. OSHA then has the burden to show that its position was substantially justified or special circumstances make an award unjust.

If OSHA can’t meet the burden of persuasion, the commission may award the prevailing party reasonable fees for an attorney and expert witness. However, it’s important to keep in mind that certain rules and restrictions apply before you can even ask for recompense, Hulse and Vance stress. OSHRC has established rules that specifically limit who is eligible for an award of attorney’s fees and other expenses under the EAJA.

First, the applicant must be a party with somewhat limited resources. The rules establish that to be eligible for an award, an application for a fees award must be filed whenever a party has prevailed in a proceeding and it must be filed no later than 30 days after the time for filing an appeal has expired.

The rules also state that the employer must be a partnership, corporation, association, unit of local government, or public or private organization that has a net worth of not more than $7 million and that it employs not more than 500 employees. The net worth and number of employees of an applicant are determined as of the date the notice of contest was filed.

Also keep in mind that the hourly rate for attorney’s fees under the EAJA for OSHRC matters is currently capped at $125 per hour. But that can add up quickly.

Awards have been granted and upheld in federal courts. Two years ago, a federal appeals court ruled that OSHA must pay more than $51,000 in attorneys’ fees to the Agricultural Retailers Association, which had won a ruling over disputed agency guidance for fertilizer facilities.

“If OSHA issues your company a citation without substantial justification, consider the EAJA when deciding whether to contest the citation,” Hulse and Vance urge. “The government may be left footing the bill if they were not substantially justified in issuing a citation to your company.”

About the Author

David Sparkman

David Sparkman is founding editor of ACWI Advance (www.acwi.org), the newsletter of the American Chain of Warehouses Inc. He also heads David Sparkman Consulting, a Washington D.C. area public relations and communications firm. Prior to these he was director of industry relations for the International Warehouse Logistics Association. Sparkman has also been a freelance writer, specializing in logistics and freight transportation. He has served as vice president of communications for the American Moving and Storage Association, director of communications for the National Private Truck Council, and for two decades with American Trucking Associations on its weekly newspaper, Transport Topics.

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