Page 38 - MetalForming July 2011

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Newsletter
Magazine
You and The Law
By Douglas B.M. Ehlke
The OSHA Floodgates Open
OSHA is flooding employers and worksites with new job-threat- ening enforcement measures, and practically eliminating partnering and voluntary program efforts. As such, it has signaled the end of any strides made toward generating significant cooperative compliance. Through rein- terpretation of its penalty-proposing authority, OSHA is generating signifi- cantly more assessments and is rein- terpreting cited regulatory standards beyond their scope.
Voluntary consultations bring expanded compliance conditions to worksites, but the results often are ignored by the enforcers. Mediation and settlement-type informal confer- ences seem treated by the OSHA agen- cies as breeding grounds for free enforcement discovery search for obtaining employer admissions. Some agencies have even tape-recorded con- ferences and then developed tran- scripts of employer-representative statements for use as admissions at trial. This perceived process of coop- eration can backfire.
New Legislation
Washington State passed a State- OSHA program (WISHA) statutory
Doug Ehlke, a national board-certified civil trial lawyer, has for more than 30 years represented metalforming companies in OSHA litigation and in labor-union elections. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and envi-
ronmental and employment discrimination law.
Ehlke Law Offices
28840 11th Avenue South Federal Way, WA 98003-3705 tel. 253/839-5555
fax. 253/874-5475 dehlke@ehlkelawoffices.com
change requiring abatement during the appeal of any citation classified as “serious,” “willful,” “repeated serious,” or “failure to abate” an alleged serious violation. Under previous WISHA law, employers were not required to abate citations until the appeals process resulted in a final settlement or order. The new abatement-during-appeal law is scheduled to go into effect this summer.
OSHA is reinterpreting cited regulatory standards.
Employers with legitimate defenses to citations can petition or request a written stay of abatement during their appeal. Stay orders will be granted for “good cause” unless “based on the pre- liminary evidence it is more likely than not that a stay would result in death or serious physical harm to a worker,” RCW 49.17.140(4)(e). WISHA cases now may see mini-trials within the first 30 days or so after the citations are received, where the employers file for a stay or suspension of abatement under this new “expedited” ruling procedure.
New Directives
Following in the steps of its issuance of a comprehensive LO/TO directive, OSHA issued (in February 2011), “Enforcement Guidance for Personal Protective Equipment in General Industry,” CPL 02-01-050. These new directives often contain OSHA’s opin- ion of the case law, which may or may not be a full discussion on the appli- cability and scope limits of a particular standard. MF
MetalForming/July 2011
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