Will You Be A Target for The New OSHA Sheriff?

OSHA's Field Operations Manual says that OSHA “generally” will not allege a repeated violation if the previous violation was more than 3 years old. There is no guarantee, however, that OSHA will respect this self-imposed limitation, and there are cases where OSHA has not.

A careful employer also will not make the mistake of thinking that an OSHA citation at one facility cannot be used to support a repeated characterization of a violation at a different facility. As OSHA's recently amended Field Operations Manual observes, “There is no requirement that the previous and current violations occur at the same workplace or under the same supervisor.” The greater the number of serious violations at a facility, the more likely it is that OSHA will scrutinize the company's inspection history for previous violations at similar facilities.

For example, in January, OSHA alleged five repeated violations and sought $200,000 in penalties against the HomeGoods company, which operates a chain of furniture and houseware stores. The repeated allegations were based on citations issued in 2006 and 2007 for similar conditions at two different stores, one in a different state. Managers should, therefore, be familiar with citations issued to other facilities of the same company, not just their own facilities.

Previous citations also can be used to prove more than repeated violations. They can be used as evidence of willfulness, particularly if a current manager knew from the previous citation that a certain condition is a violation. If the same manager also knows that that condition has recurred and does nothing about it, OSHA more easily can use the previous citation to argue that the recurrence is a “willful” violation.

DON'T IGNORE EMPLOYEE COMPLAINTS OR ACCIDENT REPORTS

A “willful” violation can occur if the employer knew that he was violating a standard or if he was reckless. A good way to convince an OSHA inspector of recklessness (and thus willfulness) is to ignore employee complaints of danger, or worse, accident reports.

A careful employer will review employee complaints, accident reports and minutes of safety meetings, and make sure that every item properly is evaluated and if found to be a problem, either fixed or scheduled for fixing with alternative protective measures implemented in the interim. Employers should not allow unaddressed items in such documents to smolder in their files, ready to be fanned into willfulness by an OSHA inspector.

DON'T ARGUE WITH THE INSPECTOR

What should an employer do if an OSHA inspector states during an inspection that a certain condition violates a standard and needs to be fixed, but the company disagrees? Ignoring the statement is a bad idea; the inspector's statement puts the company on notice that in OSHA's eyes, an unlawful condition currently exists. Ignoring such statements has been used by OSHA as evidence of willfulness.

Of course, if the condition can be fixed quickly without causing operational problems, fixing it likely would be the prudent course. But suppose any fix would cause operational problems or be expensive?

First, the employer should make sure of his ground by reviewing the standard, perhaps with an attorney knowledgeable in OSHA law. Second, if the employer still believes that he's right, he should discuss the matter calmly with the inspector. If the inspector misunderstands a fact, the employer respectfully should educate him on the true fact. If the inspector is overlooking an aspect of an OSHA standard, the employer respectfully should educate him on what he is overlooking. Good OSHA inspectors recognize that employers can know more about certain specialized OSHA standards than they.

What the employer should not do is get into an argument with the inspector. Arguments not only can poison the atmosphere, but can lead the inspector to believe that violations are willful. A quiet, knowledgeable presentation will do much to win the inspector's respect. Even if the inspector continues to disagree with the company's view of the standard, OSHA will have difficulty concluding that the company knew that the condition was a violation and thus, that any violation was willful.

CONSULT A KNOWLEDGEABLE LAWYER EARLY ON

Once OSHA has issued a citation alleging repeated or willful violations, positions have so hardened that it will be quite difficult to get OSHA to withdraw those allegations in a settlement agreement. Before issuing a citation alleging a willful violation, OSHA is required by its internal procedures to justify it to both higher-ups within the agency and its own lawyers. So by the time it has issued the citation, the agency already has convinced itself of the rightness of the allegations and has gone public with them. Hiring a lawyer then often is too late.

The better course of action is to consult a knowledgeable lawyer at the beginning of an OSHA inspection. A lawyer knowledgeable on OSHA issues will serve as a buffer between the agency and the company's management. He can make sure that responses to document requests are neither too broad nor too narrow.

Most importantly, he will be the interview representative for management employees. These can be the most crucial events in the inspection, because a poorly worded remark by a foreman can convince an inspector that a violation was willful. The lawyer therefore first will interview management representatives to get the full story and make sure that all favorable information is brought out. He then can rebut unfavorable information OSHA may have heard and avoid misunderstanding. Even if the lawyer can't establish that no violation occurred, he has a good chance of showing that it was not willful.

If an inspection is particularly intense (for example, a fatality investigation) or involves especially important issues, an employer can be well served by having a lawyer on site during the inspection to directly interact with the OSHA inspector. This can make the difference between a citation, and a citation alleging that violations were willful or repeated.

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Arthur G. Sapper is a partner in the OSHA Practice Group of McDermott, Will & Emery, a former deputy general counsel of the Occupational Safety and Health Review Commission and a former professor of OSHA law. He has participated in numerous OSHA inspections and cases involving allegations of “willful” and “repeated” OSHA violations, and can be reached at 202-756-8246 or at asapper@mwe.com.