You and the Law
It's All About the Willfuls (and Repeats) at OSHA
Fall is traditionally the busy season for OSHA enforcement inspections and trials, and the end of 2013 brought with it a rebound in the number of willful and repeat citations. Six- and seven-figure OSHA-proposed penalties were commonplace, especially following accidents or fatalites.
Willful violations these days abound with “egregious” label multipliers of the typically maximum penalty of $70,000, reaching staggering levels alleged violations involving machine guarding, lockout-tagout, personal protective equipment, confined space, OSHA 300 log entries and trenching.
How do OSHA agencies calculate massive proposed penalties? Egregious penalty bases include:
• Per (similar) machine allegedly unguarded
• Per employee exposed, and
• Per “instance” of occurrence, where the standard allows per-instance violations.
In addition to the payment of huge penalties, abatement of such willful citations can lead to agency demands to seek to hire more full-time safety personnel, or even comprehensive third-party safety consultants.
Repeat citations, which also can carry $70,000 maximum penalties, can flow from previous unappealed or final order citations issued under the same standards, or from settlements with affirmed citations. They also can result from past citations in an employer’s same facility location or even from the employer’s facilities in distant state-OSHA locations, or in any other federal OSHA jurisdiction.
Dismissals Do Happen
Sometimes it pays to stick up for your rights against bad citations. During last October and November, we experienced citation dismissals for clients totaling nearly $3 million, for some 40 willful violations in three industries and including several repeats. Appeals taken by the agencies of these dismissals have been denied. Citations were vacated largely because:
• Standards were misapplied and misinterpreted, especially general performance standards that contain no specific compliance method. Rather, they are designed to allow employers “flexibility” in their selection and implementation of effective compliance methods.
• The employer complied with the standards.
• The agencies lacked sufficient proof of the alleged violations.
• A prior case established that the cited standard was interpreted contrary to the new citation.
• Safe engineering and/or practices were in place.
• Written safety-program procedures were in place and met the standard.
Along this journey we discovered some amazing revelations. First, one state-OSHA inspection supervisor reversed an inspector’s first closing conference and single serious classification citation recommendation. Instead, he ordered a second closing conference to double the citations and (in his words) dropped the “W bomb” classification for both citations. He then instructed the inspector to take a second agency person to the second closing conference, held just before Christmas.
In another case, a judge observed that an employer had voluntarily requested consultation inspections from the agency multiple times, and had received the highest scores possible for compliance, hazard control, management commitment to safety and safety training. Under such circumstances, the agency’s “average” or “poor” penalty rating discount factor was inappropriate, and so were the willful citations. Summary judgment motions of pre-trial dismissal were repeatedly granted where the cited general standards did not apply. One willful against a written safety program, which had previously been litigated by our office and held not a violation under the same standard, could not be re-litigated.The risk and future adverse impact of citations should be closely examined within the 15-working-day appeal period, especially when the standards have been misapplied; where good-faith compliance efforts can be demonstrated; and where a resolution of overcharging citations or penalties are apparent. MF
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