Page 92 - MetalForming July 2017

You and The Law
• Recent years have seen a trend of employers appealing solely because they do not want a serious violation on their record due to its impact on insurance, bonding and bidding. Many employers now are willing to spend $50-75,000 litigating a $3000 penalty, merely to either get the serious viola- tion off of their record, or to tie up the case in litigation for several years before they have to report the viola- tion. Appeals filed and litigated solely to reduce the violation classification have come to dominate the AG WISHA caseload.
In our law office’s experience, the extra steps referred to by Furst are most easily recognized by OSHA and state-OSHA agencies for settlement when they involve major extra training, extra monitoring or significant safe- ty-program expenditures (especially for extra PPE or voluntary machine guarding beyond the standards) when they are not related to the citations.
Otherwise, enforcement agencies can simply reject them as abatement steps instead of recognizing them as cata- lysts for settlement.
“We cannot settle cases in a manner
“Provide us with...what extra steps your client will take that will exceed the benefits of the department prevailing at a hearing.”
that will merely encourage more appeals and increase our workload,” says Furst. “So, provide us with either reasons why the department’s case is weak or what extra steps your client will take that will exceed the benefits of the department prevailing at a hearing.”
What are some of the extra steps an employer might consider offering?
• Hiring a consultant to conduct comprehensive inspections of the cited employer’s facilities, including uncited, uninspected facilities.
• Spending five-figure amounts on new or additional safety equipment.
• Implementing a comprehensive PPE enforcement policy.
• Adopting a best-practices safety program and procedures that the agency can use to educate the industry.
• Working with an industry associ- ation to develop new safety or guarding technology.
• Hiring additional safety-program personnel and agreeing to retain them as full-time employees for at least five years.
A review of these settlement ideas and factors can be helpful for employ- ers preparing to participate in the infor- mal conference and other case stages. For a copy, call Ehlke Law Offices. MF
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