By: Thomas H. Welby Published: November 2011

Safety Policy: Know All off the Elements of an OSHA Violation

Avoiding OSHA violations and related penalties is not the number one priority of your health and safety program. What you should be really trying to accomplish is to protect your employees, livelihood and bottom line, by your best efforts to reduce jobsite dangers.

If you're in construction, from time to time you will be inspected by OSHA, and issued a citation. The silver lining is that a citation issued before anyone has been injured can be seen as a useful alert, and an opportunity to demonstrate to OSHA (who will be back around next year) that you are a safety-conscious employer.

Chances are good, though, that one of these days you will be issued an OSHA citation that should be vacated, because the cited standard doesn't apply, or the condition existed only in an inaccessible location, or based on some other defect. In many such instances, a contest can be successful, even where the employer’s efforts fell short of perfection.

As an employer, in addition to being familiarity with the substantive standards that affect your trade, you should have a handle on the basics of what constitutes a violation, and what the Secretary of Labor is going to have to prove if you choose to contest your citation.

As an attorney whose firm represents employers in OSHA matters, I don't want to dissuade you from consulting with experienced counsel concerning any OSHA citation. There are practical and economic reasons to pick your fights carefully, however, in deciding whether to contest a given citation.

For one thing, unless it's a multi-item citation, or one that involves Willful or Repeat violations, the amount of money at stake is likely to be small. Unless (for example) your current citation may debar you from bidding on public jobs, and put you out of business, incurring thousands in legal fees, to contest a much lesser amount in OSHA penalties, will rarely be money well-spent.

A further consideration, among others, is that a decision to devote time and money to contesting an OSHA citation will seldom make sense, unless chances are good that you can have the citation (or many of the items, if it's a multi-item citation) vacated.

There are three further things to keep in mind, when considering having an attorney represent you in an OSHA citation contest. First, there are not a lot of generalists with relevant OSHA experience. Because most citations are well-supported, and the penalties are (usually) modest, relatively few are contested and taken through trial. There’s just not enough volume to enable a private attorney to build a practice around fighting OSHA citations. Accordingly, excepting a few in-house lawyers at larger companies, nearly all lawyers who regularly handle citation contests are employed by the U.S. Department of Labor (or a state agency, in states having a "little OSHA" program).

Second, although self-representation will seldom be ideal, under the rules you can contest a citation without an attorney. The employer (or an officer of the employer) can appear and take part in a hearingpro se.

Third, beware the lawyer seeking to impress you with "scorched earth" aggressiveness. A measured approach generally works better with OSHA. Remember, if you stay in business, you can look forward to a future OSHA inspection. No offense will be taken at a contest having a reasonable basis, but taking a weak case to trial, with "guns blazing," squanders goodwill as well as money. If the only bullets you have are specious arguments and far-fetched contentions, you will be better-advised to pursue settlement, or even to accept the citation, pay the penalties, and move on.

Sound decision-making requires some knowledge of the fundamentals.

First comes jurisdiction. To be cited for violating (federal) OSHA (which oversees private employers in New York, Connecticut, and New Jersey) you must be (1) an employer; (2) engaged in a business affecting interstate commerce.

As a practical matter, if you are in the construction business, you can forget defending based on a lack of effect on interstate commerce. While I have seen statements in the cases suggesting that Congress can regulate anything it likes (a questionable proposition from a Constitutional standpoint) in construction, it’s safe to assume the necessary nexus with interstate commerce. It's pretty hard to imagine a project not using equipment or materials brought in across state lines.

A defense that occasionally finds some basis, although infrequently, is that the party cited must be an "employer." Remember, under the "multiple employer policy," you may be liable, even if none of youremployees are exposed to the violative condition. You can be liable if your control over the worksite was sufficient to make it reasonable to expect you to prevent or detect and abate violations. Plus, if you havecreated a violative condition, you can be held responsible, even if it is only employees of another employer who are exposed.

Nevertheless, to have OSHA liability you do need to be "employer," which is to say a "person (including a corporation, LLC or other entity) engaged in a business affecting commerce who has employees." While principals of the company may be deemed to be "employees" while providing services to the company, occasionally there are facts allowing this defense to succeed.

The elements that the Secretary must prove to establish any OSHA violation are: (1) the applicability of the cited standard; (2) noncompliance; (3) employee access to the condition; and (4) actual or constructive knowledge on the part of the cited employer.

Secretary v. Chenal Valley Construction involved a general contractor on a residential project who visited the site 3 times a week, but had no full-time presence. It was cited for violative conditions (involving fall protection and, mostly, scaffolding violations) created by Red Construction, its masonry subcontractor.

Chenal Valley, the GC, did not create the hazards, expose its own employees to them, or control thespecific hazards. It did control the overall worksite by reason of its supervisory authority, and thus had an obligation to inspect the work area, anticipate hazards, and take measures to prevent or correct them.

The administrative law judge found that Chenal Valley had fulfilled these obligations, albeit minimally, and vacated all of the citation items, based on a lack of knowledge of the conditions.

The ALJ declined to find actual knowledge, where the Compliance Officer could only speculate that the conditions had been in place long enough for the GC to have seen them two days before OSHA's inspection. More convincing, the ALJ found, was the testimony of the GC's witness, who pointed out from long experience that the scaffolds would have been moved from hour to hour, making it entirely plausible that the defects the inspector saw had not been seen by the GC during its last preceding site visit.

The ALJ also rejected the Secretary’s argument that "constructive knowledge" should be found, based on contemporaneous violations at different Chenal Valley worksites employing a different subcontractor, doing a different type of work.

Chenal Valley's safety oversight was probably less than ideal, but it nevertheless succeeded in having all items on the Red Construction job vacated. If you have a command of the basics of what needs to be proved, whether you are assisted by an attorney or not, you will make better decisions to assess your prospects, and better chances of success if you elect to contest a given citation.

© Welby, Brady & Greenblatt, LLP.
All Rights Reserved. By visiting this site, you agree to our Terms of Service. For more information please read our Privacy Policy Attorney Advertising