By: Thomas H. Welby Published: October 2013

Safety Policy: When Cute Doesn't Cut It: Passing on Hopeless Contests to OSHA Citations

Our law firm represents construction-industry employers cited for alleged OSHA violations. From time to time, we have represented clients in citation contests. We understand — and OSHA and the Administrative Law Judges do, too — that there’s nothing wrong with an employer asserting substantive or procedural defenses to OSHA citations. On occasion, I admit, I have detected what I believed to be a discreet tilt in favor of crediting the testimony of Compliance Officers over employee representatives. Generally, however, the ALJs are highly knowledgeable on the law, and quite willing to vacate citations where a valid defense has been shown, or the Secretary has failed to establish elements of the violation.

From time to time, in reading ALJ decisions as part of writing articles for this series, I find myself amazed that employers, not infrequently, take citation contests through trial, based on very poorly-supported defenses.

OSHA citations, as you know, can have adverse consequences that can dwarf what, usually, are modest monetary penalties. If an employer has multiple “Serious” (or “Repeat” or “Willful”) violations within a three or five-year period, it may be debarred from bidding on, or being awarded, public contracts in some jurisdictions (notably, the City of New York). Increasingly, construction managers in private contracting are also avoiding contractors with multiple OSHA violations (which information can easily be found online).

However, it’s always important to keep in mind that, “if you’re going places, you’re going to get some mud on your boots.” In other words, the construction industry is hazardous, and rightly receives added attention from OSHA. If your construction company grows, or even stays in business in these economic times, you will be inspected. And, even your best efforts notwithstanding, you’re almost certain to get a citation every now and then.

It follows that your current OSHA citation is not a once-in-a-lifetime event, but one incident in a relationship with your Area Office that you hope will be long-lasting. Unless your company’s record is so wretched that your latest citation threatens to be that straw on the camel’s back that puts you out of business, your #1 priority should be to avoid harm to your employees, but your #2 priority should be to impress the Area Office that health and safety are matters you take seriously. If your company’s record is not very good, you need to “get religion,” and OSHA likes a repentant sinner better than the other kind.

It’s obvious, too, that engaging private counsel to take a citation contest to trial, and possibly beyond, is expensive, usually disproportionately so, where the monetary penalties involved are only a few thousand dollars. The Department of Labor’s Solicitor’s Office engages able attorneys, paid from public funds, who do nothing other than OSHA work. There are relatively few lawyers handling OSHA contests from the employer’s side, and the economics are such that I’ve never seen, and don’t expect to see, any who do that work more than occasionally.

Accordingly, even where the employer has a litigable defense, it’s often better off trying to negotiate a downward adjustment in any penalties, and/or a reduction in the number and classification of citation items. Money that might be spent in litigation will often be more wisely invested in added safety training or equipment.

In the case of Secretary v. Absolute Roofing & Construction, Inc., two Compliance Officers were driving past a church in a Cleveland suburb. Looking up, they saw a lone worker performing roof repairs, removing and reinstalling clay tile and replacing the copper valley, on the church’s steep-pitched roof. The CO’s announced their presence, and that they intended to inspect the site. The worker, the only one onsite at the time, identified himself as Michael Koran, and that his employer was Absolute Roofing (“Roofing”), an entity owned by Michael Kamis. The eaves of the roof Koran was working on were more than 13 feet above grade, and Koran was working without any fall protection.

While walking around the building after their first exchange with Mr. Koran, the CO’s saw a man with a truck displaying a “Roofing” logo come onto the site, and leave almost immediately. Later, they learned that this was a Roofing employee who, in response to a phone call from Koran, had rushed to the site to drop off a harness.

Roofing was cited for one “Serious” and two “Repeat” violations: the scaffold used by Koran did not rest on base plates or other firm foundation, and was not sturdy enough to bear without failure the intended load, were Koran to fall onto it. The third item, of course, was the failure to use fall protection.

While the total proposed penalties added to a not-insignificant sum exceeding $21,000, I think it was a mistake that Roofing took all of the citation items through trial, mounting a barrage of insubstantial defenses that Koran was not an employee, and that the company performing the roof repair was not Roofing, but a related entity, Absolute Exteriors (“Exteriors”).

The discrepancies in the respondent’s story take up several pages of the ALJ’s decision, and on the whole were almost comical. Just to give you a taste, the co-owner of Roofing, Michael Kamis, gave the CO’s a tax I.D. number for Absolute that corresponded to that from a prior inspection, in which the employer identified itself as “Absolute Exteriors d/b/a Absolute Roofing and Construction.” While the citations before the ALJ had been issued to Roofing, the Notice of Contest was on Exteriors’ letterhead, and stated that it was Exteriors that was contesting the citation.

There was evidence that Exterior had engaged and paid Koran. While there was no corroborative writing, Kamis testified that the church had hired Exteriors to perform the roof repair. These niceties, the ALJ found, were beside the point both because Roofing and Exteriors could be deemed a single entity for purposes of the OSHA citation, and because Roofing would, in all events, be deemed to have been Koran’s employer. OSHA uses an “economic realities” test, which considers who pays the employees, who directs and controls the employees; who provides safety training and instructions, and who the employees consider to be their employer. Analyzing these factors, the ALJ concluded that overall, Koran was an employee of Roofing.

The ALJ also analyzed the facts with reference to the so-called Darden test, which focuses on, among other things:

[T]he skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.

While finding that the totality of the Darden factors pointed to Koran being an employee of Roofing, the ALJ placed “great weight” on both Koran’s statement to the COs that Roofing was his employer, and Kamis’ admission that the company at the site was Roofing.

The citations and penalties were upheld as proposed. In considering the facts, this employer admitted it provided no safety training, but had fall protection close enough that it was able to speed over a harness for Koran’s use within a few minutes of the COs’ arrival. Looking at the effort expended in concocting an almost laughable defense, I think that Roofing, its relationship with OSHA, and the safety of its workers would be better have been served, by having the harnesses directly at hand, and in training the employees in fall protection and the use of the equipment.

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