Jordan Barab, the deputy assistant secretary of OSHA, recently warned employers: “There's a new sheriff in town.” Every day brings new stories of citations with much higher penalties and alleging “willful” and “repeated” violations — all at a rate far higher than under the Bush and Clinton administrations. President Barack Obama's OSHA now is issuing “egregious” willful citations at a rate five times of that when he was inaugurated.
There are steps that employers should take to avoid OSHA violations, such as compliance reviews and walkarounds to spot violations before OSHA does. However, in a large factory or on a large construction site, it is difficult for even the most diligent employer to pass an OSHA inspector's white-glove test.
Some violations inevitably will be found, but how can you avoid having them classified as “willful” and “repeated” violations, which carry much higher penalties (up to $70,000 per violation) and much greater consequences (such as civil liability and adverse press attention)?
DON'T ARGUE WITH THE STANDARDS
Among the worst things an employer can say to an OSHA inspector is that he did not comply with an OSHA standard because compliance was “unnecessary to keep my people safe.” There are foremen and managers who think that such a statement will help get them off the hook by showing that they were thinking about employee safety. They are wrong. Such a statement can indicate that the violation was willful and can result in massive OSHA civil liability and, if an employee dies, can result in criminal prosecution.
The classic case is United States v. Dye Construction Co., 510 F.2d 78 (10th Cir. 1975). There, an experienced construction superintendent knew that OSHA trenching standards required shoring. Nevertheless, he decided to install shoring only if the trench appeared unsafe in his experienced judgment. His violation of the standard was held to be criminally willful. The reason? He knew that what he was doing was contrary to OSHA's standard.
A careful employer therefore will train his foremen (including hourly foremen) and managers so that if an OSHA violation is found during an inspection, the foreman or manager will not try to invent an excuse that compliance with an OSHA standard was unnecessary. Not only is it a crime to lie to an OSHA inspector, but stating that complying with the standard is unnecessary gets the employer into more trouble, not less.
Will your foreman get you into trouble if he says that compliance was “impractical?” Not if you handle it right. Infeasibility is a defense to an OSHA violation, so if you had a good faith belief that compliance was infeasible, you should be able to convince OSHA that the violation was not willful even if the inspector disagrees with you on infeasibility.
If you clearly fall short of establishing the infeasibility defense, however, the inspector might doubt your good faith. The defense can be very difficult to establish. Not only must you show compliance is infeasible, but you also must show that you took alternative protective measures. The latter requirement trips up many employers; they overlook the fact that even if literal compliance with the standard is infeasible, the defense does not permit the employer to do nothing.
For these reasons, a careful employer will not let supervisors depart from OSHA standards on the basis of their own ad hoc infeasibility judgments. A careful employer instead will require management approval of any such decisions and be ready, long before any inspection, to cogently explain to an OSHA inspector why compliance with the standard was infeasible and what alternative protective measures the employer has taken. An employer who can produce a well-written memorandum to a file covering both elements of the infeasibility defense and cogently justifying its invocation is in a better position to avoid willful allegations.
KNOW YOUR OSHA HISTORY
It can be most unpleasant for an employer to be told by an OSHA inspector, “We've cited you for this before.” Even if the previous violation had been abated, a recurrence of the same or a substantially similar violation can expose an employer to penalties for repeated or even willful violations and penalties up to $70,000.
A careful employer will, therefore, check his online OSHA history by going to OSHA's Web-based Establishment Search Page. Armed with this information, the employer can better assure that previously cited violations do not recur. It also will serve as a check to make sure that his file of previous citations is complete.
OSHA's Field Operations Manual says that OSHA “generally” will not allege a repeated violation if the previous violation was more than 3 years old. There is no guarantee, however, that OSHA will respect this self-imposed limitation, and there are cases where OSHA has not.
A careful employer also will not make the mistake of thinking that an OSHA citation at one facility cannot be used to support a repeated characterization of a violation at a different facility. As OSHA's recently amended Field Operations Manual observes, “There is no requirement that the previous and current violations occur at the same workplace or under the same supervisor.” The greater the number of serious violations at a facility, the more likely it is that OSHA will scrutinize the company's inspection history for previous violations at similar facilities.
For example, in January, OSHA alleged five repeated violations and sought $200,000 in penalties against the HomeGoods company, which operates a chain of furniture and houseware stores. The repeated allegations were based on citations issued in 2006 and 2007 for similar conditions at two different stores, one in a different state. Managers should, therefore, be familiar with citations issued to other facilities of the same company, not just their own facilities.
Previous citations also can be used to prove more than repeated violations. They can be used as evidence of willfulness, particularly if a current manager knew from the previous citation that a certain condition is a violation. If the same manager also knows that that condition has recurred and does nothing about it, OSHA more easily can use the previous citation to argue that the recurrence is a “willful” violation.
DON'T IGNORE EMPLOYEE COMPLAINTS OR ACCIDENT REPORTS
A “willful” violation can occur if the employer knew that he was violating a standard or if he was reckless. A good way to convince an OSHA inspector of recklessness (and thus willfulness) is to ignore employee complaints of danger, or worse, accident reports.
A careful employer will review employee complaints, accident reports and minutes of safety meetings, and make sure that every item properly is evaluated and if found to be a problem, either fixed or scheduled for fixing with alternative protective measures implemented in the interim. Employers should not allow unaddressed items in such documents to smolder in their files, ready to be fanned into willfulness by an OSHA inspector.
DON'T ARGUE WITH THE INSPECTOR
What should an employer do if an OSHA inspector states during an inspection that a certain condition violates a standard and needs to be fixed, but the company disagrees? Ignoring the statement is a bad idea; the inspector's statement puts the company on notice that in OSHA's eyes, an unlawful condition currently exists. Ignoring such statements has been used by OSHA as evidence of willfulness.
Of course, if the condition can be fixed quickly without causing operational problems, fixing it likely would be the prudent course. But suppose any fix would cause operational problems or be expensive?
First, the employer should make sure of his ground by reviewing the standard, perhaps with an attorney knowledgeable in OSHA law. Second, if the employer still believes that he's right, he should discuss the matter calmly with the inspector. If the inspector misunderstands a fact, the employer respectfully should educate him on the true fact. If the inspector is overlooking an aspect of an OSHA standard, the employer respectfully should educate him on what he is overlooking. Good OSHA inspectors recognize that employers can know more about certain specialized OSHA standards than they.
What the employer should not do is get into an argument with the inspector. Arguments not only can poison the atmosphere, but can lead the inspector to believe that violations are willful. A quiet, knowledgeable presentation will do much to win the inspector's respect. Even if the inspector continues to disagree with the company's view of the standard, OSHA will have difficulty concluding that the company knew that the condition was a violation and thus, that any violation was willful.
CONSULT A KNOWLEDGEABLE LAWYER EARLY ON
Once OSHA has issued a citation alleging repeated or willful violations, positions have so hardened that it will be quite difficult to get OSHA to withdraw those allegations in a settlement agreement. Before issuing a citation alleging a willful violation, OSHA is required by its internal procedures to justify it to both higher-ups within the agency and its own lawyers. So by the time it has issued the citation, the agency already has convinced itself of the rightness of the allegations and has gone public with them. Hiring a lawyer then often is too late.
The better course of action is to consult a knowledgeable lawyer at the beginning of an OSHA inspection. A lawyer knowledgeable on OSHA issues will serve as a buffer between the agency and the company's management. He can make sure that responses to document requests are neither too broad nor too narrow.
Most importantly, he will be the interview representative for management employees. These can be the most crucial events in the inspection, because a poorly worded remark by a foreman can convince an inspector that a violation was willful. The lawyer therefore first will interview management representatives to get the full story and make sure that all favorable information is brought out. He then can rebut unfavorable information OSHA may have heard and avoid misunderstanding. Even if the lawyer can't establish that no violation occurred, he has a good chance of showing that it was not willful.
If an inspection is particularly intense (for example, a fatality investigation) or involves especially important issues, an employer can be well served by having a lawyer on site during the inspection to directly interact with the OSHA inspector. This can make the difference between a citation, and a citation alleging that violations were willful or repeated.
Arthur G. Sapper is a partner in the OSHA Practice Group of McDermott, Will & Emery, a former deputy general counsel of the Occupational Safety and Health Review Commission and a former professor of OSHA law. He has participated in numerous OSHA inspections and cases involving allegations of “willful” and “repeated” OSHA violations, and can be reached at 202-756-8246 or at [email protected].