Will You Be A Target for The New OSHA Sheriff?

Jordan Barab, the deputy assistant secretary of OSHA, recently warned employers: “There's a new sheriff in town.” Every day brings new stories of citations with much higher penalties and alleging “willful” and “repeated” violations — all at a rate far higher than under the Bush and Clinton administrations. President Barack Obama's OSHA now is issuing “egregious” willful citations at a rate five times of that when he was inaugurated.

There are steps that employers should take to avoid OSHA violations, such as compliance reviews and walkarounds to spot violations before OSHA does. However, in a large factory or on a large construction site, it is difficult for even the most diligent employer to pass an OSHA inspector's white-glove test.

Some violations inevitably will be found, but how can you avoid having them classified as “willful” and “repeated” violations, which carry much higher penalties (up to $70,000 per violation) and much greater consequences (such as civil liability and adverse press attention)?

DON'T ARGUE WITH THE STANDARDS

Among the worst things an employer can say to an OSHA inspector is that he did not comply with an OSHA standard because compliance was “unnecessary to keep my people safe.” There are foremen and managers who think that such a statement will help get them off the hook by showing that they were thinking about employee safety. They are wrong. Such a statement can indicate that the violation was willful and can result in massive OSHA civil liability and, if an employee dies, can result in criminal prosecution.

The classic case is United States v. Dye Construction Co., 510 F.2d 78 (10th Cir. 1975). There, an experienced construction superintendent knew that OSHA trenching standards required shoring. Nevertheless, he decided to install shoring only if the trench appeared unsafe in his experienced judgment. His violation of the standard was held to be criminally willful. The reason? He knew that what he was doing was contrary to OSHA's standard.

A careful employer therefore will train his foremen (including hourly foremen) and managers so that if an OSHA violation is found during an inspection, the foreman or manager will not try to invent an excuse that compliance with an OSHA standard was unnecessary. Not only is it a crime to lie to an OSHA inspector, but stating that complying with the standard is unnecessary gets the employer into more trouble, not less.

Will your foreman get you into trouble if he says that compliance was “impractical?” Not if you handle it right. Infeasibility is a defense to an OSHA violation, so if you had a good faith belief that compliance was infeasible, you should be able to convince OSHA that the violation was not willful even if the inspector disagrees with you on infeasibility.

If you clearly fall short of establishing the infeasibility defense, however, the inspector might doubt your good faith. The defense can be very difficult to establish. Not only must you show compliance is infeasible, but you also must show that you took alternative protective measures. The latter requirement trips up many employers; they overlook the fact that even if literal compliance with the standard is infeasible, the defense does not permit the employer to do nothing.

For these reasons, a careful employer will not let supervisors depart from OSHA standards on the basis of their own ad hoc infeasibility judgments. A careful employer instead will require management approval of any such decisions and be ready, long before any inspection, to cogently explain to an OSHA inspector why compliance with the standard was infeasible and what alternative protective measures the employer has taken. An employer who can produce a well-written memorandum to a file covering both elements of the infeasibility defense and cogently justifying its invocation is in a better position to avoid willful allegations.

KNOW YOUR OSHA HISTORY

It can be most unpleasant for an employer to be told by an OSHA inspector, “We've cited you for this before.” Even if the previous violation had been abated, a recurrence of the same or a substantially similar violation can expose an employer to penalties for repeated or even willful violations and penalties up to $70,000.

A careful employer will, therefore, check his online OSHA history by going to OSHA's Web-based Establishment Search Page. Armed with this information, the employer can better assure that previously cited violations do not recur. It also will serve as a check to make sure that his file of previous citations is complete.