7 Things You Must Consider Before Contesting an OSHA CitationSep 25, 2019
Have you been issued an OSHA citation? Do you believe it is undeserved or misguided? When does a challenge make sense? When does it make more sense to accept the violation and move on? If you want to contest, you’ll need to give a reason, and it better be a good one.
Mounting a challenge to an OSHA citation isn’t easy, and success is not guaranteed. Conversely, failing to challenge an OSHA citation can have adverse — and unforeseen — consequences down the road. Many employers fail to consider these consequences fully. This is especially true when the size of the civil penalty isn’t significant. Many employers simply accept the citation and pay the penalty because it seems like the easiest and least disruptive thing to do.
After nearly 20 years of experience in this area — handling cases with local, regional, and national ramifications — I’m very skilled at helping my clients weigh all the factors involved in a challenge, so they can make an informed decision.
If you have been cited and want to challenge, there are the seven key questions you need to answer — for yourself and your business —before you proceed. I’m here to help you explore and evaluate each one so you can move ahead with clarity and confidence.
1. What’s your defense? Grounds for contesting an OSHA violation fall into two general categories. You can claim that no violation occurred, or you may acknowledge the violation, but claim that you are not responsible.
Generally, the burden of proving that an OSHA standard was violated falls to OSHA. How strong is their case?
To prove a violation of a cited standard under §5(a)(2) of the Occupational Safety and Health Act, OSHA must prove that:
- The cited standard applies to the work being carried out.
- You failed to comply with the cited standard.
- Workers were exposed to a hazardous condition.
- The employer knew about the condition — or could have known with the exercise of reasonable diligence.
If you don’t deny that the violation occurred, but also don’t feel responsible for it, the burden of proof shifts to you (the employer). Can you prove at least one of the following?
- The violation occurred due to uncontrollable employee misconduct.
- The standard is not clear.
- No hazard was posed by the violation.
- A greater hazard would be created by complying.
- OSHA failed to follow inspection procedures or failed to issue a citation with reasonable promptness.
- You were not able to comply for some other legitimate reason.
2. How large is the fine? There are formulas that OSHA uses to calculate penalty amounts. Understanding these formulas, and how they were used against you, is essential to assessing the “fairness” of the penalty.
Fines are adjusted based on the seriousness of the violation, the size of the business, the “good faith” of the employer, and the employer’s history of violations. Fines are assessed within the following ranges after making such adjustments.
Nonserious $0 – $7,000
Serious $1 – $7,000
Repeated $0 – $70,000
Willful $5,000 – $70,000
Failure to abate $0 – $7,000
Failure to post $0 – $7,000
Since 2016, OSHA has indexed its annual fine increases to inflation. Maximum fines for 2019 are published in the Federal Register.
3. How difficult and/or expensive is it to fix the problem? A serious citation may carry a small penalty, and not look like a big deal. However, addressing the issue could have a huge financial impact on your business, and involve significant changes to your operations in multiple locations.
To be clear, I’m not suggesting that you contest an OSHA citation for the sole purpose of avoiding legitimate abatement requirements. I’m suggesting that if you believe that the alleged violation is not just, you should incorporate the cost and other impacts of the abatement in your decision to contest the citation.
4. Can a violation adversely affect your competitive position? Yes, it can. If you have a history of OSHA citations, for example, you could have a harder time bidding on certain jobs — especially if the violation is characterized as willful or serious. Most private and public entities consider the safety record (i.e. OSHA citations) in evaluating bids and are more apt to select bids from competitors who don’t have citations.
Also, expensive abatement requirements could harm your competitive position by forcing you to raise your fees. You might also be at a particular disadvantage if you have to implement work procedures or other process modifications that are more burdensome than industry standards.
5. What is the potential for repeat violations? If you receive a citation, you can be sure that OSHA will be returning for follow-up inspections. A repeat violation can carry a fine of up to $70,000 per violation.
Given the potentially harsh penalties involved, employers must take care to evaluate the potential for repeat violations. This is especially true since “substantially similar violations” may be committed at different locations or job sites of the same company.
To establish a repeat violation, OSHA must prove that:
- The cited employer is the same one that was cited previously.
- The previously cited employer was cited at least once before and within three years of the time that the previous violation became a final order.
- The earlier citation became a final order of the Occupational Safety and Health Review Commission.
- The earlier citation was for a substantially similar violation.
Also, it is important to note that if the “substantially similar” violation involves the same OSHA standard, then the burden of proof – when making a challenge — shifts to the employer.
6. Is there any risk of collateral litigation? Employers must be aware of how the law works in every state where they conduct business. State law dictates the type of collateral litigation that you may be facing as the result of an OSHA violation and/or a workplace accident.
State workers’ compensation statutes generally prohibit personal injury actions by employees against employers. However, third-party lawsuits (e.g., product liability lawsuits, and lawsuits against architects, engineers, and property owners, etc.) are a very common byproduct of workplace accidents.
Some states impose heightened damages against employers in connection with workplace accidents. In Massachusetts, for example, employees may receive double compensation if their injuries are the result of “serious and willful misconduct” (see M.G.L.A. c. 152, §28). Under this statute, the employer — not his or her insurer (if any) — must pay the extra compensation. Employers affected by such statutes must be especially careful to avoid “willful” OSHA citations.
7. How does the citation affect your workforce? When deciding whether or not to proceed with a challenge, you must also consider how the process will affect your relationship with your employees, and particularly with organized labor if your company handles jobs and projects in a unionized state.
Contesting OSHA citations could have a variety of indirect impacts on your workforce that are difficult to anticipate. As is true for any good relationship, communication is key. Talk with your employees and/or labor representatives, and consider their feedback, in making your decision.
Feel free to contact me if you have any questions or concerns about how to respond to an OSHA citation. It’s about how you respond — and the actions you take — that can make all the difference in orchestrating the best possible outcomes.
About the Author: James Laboe