Litigating Workplace Safety and Health Disputes

Despite the fact that the Occupational Safety and Health Review Commission (OSHRC) recently celebrated its 40th anniversary, many employers still do not fully understand the make-up of the OSHRC, the process for litigating OSHA citations and the reasons why they might want to litigate citations, proposed penalties and proposed abatements. Without this knowledge, employers cannot effectively evaluate their decision to litigate.

The OSHRC is the independent federal agency that adjudicates workplace safety and health disputes between OSHA and private industry. In the early 1970s, members of Congress feared that allowing one federal agency to set standards and regulations, conduct inspections and enforce the standards and regulations would be unfair to the regulated community, so the OSHRC was created.

As Senator Jacob Javits, R-N.Y., the author of the amendment to create OSHRC, artfully stated: “I feel very strongly that a great element of confidence will be restored in how this very new and very wide-ranging piece of legislation [the Occupational Safety and Health Act]will be administered if the power to adjudicate violations is in the hands of an autonomous body, more than one man, and more than in the Department of Labor itself. … We have a difficult piece of legislation reaching the whole of American business, involving millions of employees and tens of thousands of employers. This will give them a greater measure of confidence.”

Staffing for the OSHRC

The administrative law judges of the OSHRC perform, among other things, the duties of ruling on motions, making findings of fact and conclusions of law. Currently, there are offices in Washington, D.C. (headquarters),
Atlanta and Denver.

In addition to the judges, the OSHRC has a chairman and two commissioners who are located in the Washington office and are otherwise known as the supreme court of workplace safety and health law. They are confirmed by the United States Senate, and they serve a 6-year interval term at the pleasure of the president of the United States.

The Office of the General Counsel provides legal support to the chairman and the two commissioners. This office provides, among other things, legal advice to the members of the OSHRC regarding Petitions for Interlocutory Review and Petitions for Discretionary Review. In general, a Petition for Interlocutory Review is a request to rule on an issue before a trial has ended. A Petition for Discretionary Review is a request to rule on an issue after a trial has ended.

Why Litigiate?

There are many reasons why an employer may litigate citations, proposed penalties and proposed abatements.

First, an employer may litigate in response to administrative liability. Under the OSH Act, 29 C.F.R. § 651 et seq., a citation may be characterized as serious, willful, repeat or failure to abate. Case law also dictates that OSHA may issue a per instance or per employee penalty if the language in the standard or regulation authorizes such penalty. This is otherwise known as an “egregious violation.”

A serious violation has a maximum penalty of $7,000, a willful or repeat violation has a maximum penalty of $70,000 and a failure-to-abate violation has a maximum penalty of $7,000 per day. An egregious violation may be characterized as willful and could carry the maximum penalty of $70,000. An employer may receive, for example, 10 proposed willful violations for allegedly failing to train 10 employees. Each proposed willful violation may carry the maximum penalty of $70,000 for a total proposed penalty of $700,000.

An employer may litigate in response to the existing proposed characterizations and penalties because they are grave. If the existing proposed characterizations and penalties are not grave, an employer still might want to litigate to minimize the risk of receiving grave characterizations and penalties in the future.

An employer does not have to carry the case to trial in order to minimize the risk. In fact, a substantial portion of the contested cases settle and do not make it to a trial. An employer can minimize the risk through settlement negotiations before, during and after discovery.

Second, an employer may litigate to minimize the risk of civil liability. Approximately 32 states authorize the use of OSHA standards and citations as evidence of negligence at trial, and approximately 14 states authorize the use of OSHA standards and citations as negligence per se at trial.

Regarding the former, an employer would still be allowed to argue that it did not owe the plaintiff a duty of care nor did it breach a duty of care, the first two elements needed to establish a negligence cause of action. Regarding the latter, an employer would be prohibited from presenting a defense that it did not owe the plaintiff a duty of care nor did it breach a duty of care. In essence, an employer would only be able to present a defense regarding causation and damages, the last two elements needed to establish a negligence cause of action. These issues may arise only if an employee can get out of the state workers’ compensation exclusivity provisions, or the employee is not an employee of the employer. Many experienced plaintiff counsel will allow OSHA to do a significant portion of the legwork, and then use the OSHA case in the civil case.