final version of osha article acc docket 23 no. 10

12
58 ACC Docket November/December 2005 Jose M. Chanfrau IV and Zayra W. Taupier, “Knock, Knock! The OSHA Inspection Survival Guide,” ACC Docket 23, no. 10 (November/December 2005): 58-72. By Jose M. Chanfrau IV and Zayra W. Taupier KNOCK, The OSHA Inspection SURVIVAL GUIDE KNOCK!

Upload: jchanfrau

Post on 28-Mar-2015

204 views

Category:

Documents


1 download

TRANSCRIPT

Page 1: Final Version of OSHA Article ACC Docket 23 no. 10

58 ACC Docket November/December 2005

Jose M. Chanfrau IV and Zayra W. Taupier, “Knock, Knock! The OSHA Inspection Survival Guide,”ACC Docket 23, no. 10 (November/December 2005): 58-72.

By Jose M. Chanfrau IV and Zayra W. Taupier

KNOCK,The OSHA InspectionSURVIVAL GUIDE

KNOCK!

Page 2: Final Version of OSHA Article ACC Docket 23 no. 10

ACC Docket 59

No matter how well you think your company runs its safety program,

sooner or later you will get a frantic phone call: OSHA inspectors are at the

door. Worse yet, you will hear that an inspection has occurred without your

knowledge. Even to the most senior management, there is nothing more

frightening than OSHA inspectors arriving unannounced. And they

will always be unannounced—OSHA is prohibited from giving

advance notice of inspections, except as authorized by the

Secretary of Labor or the Secretary’s designee.

Your best defense to the inevitable OSHA inspection is a

thorough preparation. Of course that preparation should

include a systematic adherence to OSHA’s rules

(and its sometimes surprising interpretations

of those rules). But it should also include a

solid understanding of your procedural

rights—including your right to insist that the

inspectors have a warrant for any search of

your property and records. Insisting that an

agency follow proper procedure (and, of course,

following it yourself) is a common-sense way of reduc-

ing your risk of conflict with governmental regulators.

November/December 2005

Page 3: Final Version of OSHA Article ACC Docket 23 no. 10

60 ACC Docket November/December 2005

PREPARING FOR THE INEVITABLE

It is more useful to prepare for an OSHA inspec-tion than to sit back and react to the aftermath. Yourmost critical preparations will fall into two broadcategories: putting boundaries around OSHA’s accessto your worksite and files, and ensuring that keyOSHA records are always in perfect order.

Post Trespass Warning SignsAn employer has a right to require that an OSHA

inspector obtain an inspection warrant before enter-ing an establishment, in the absence of one of the rec-ognized exceptions to the requirement. Consent to thesearch, of course, is one such exception. (See the dis-cussion below, “Knowing Your Rights.”) Employersshould therefore mark all private property with “NoTrespassing” signs that advise visitors to contact man-agement before entering private property. These signswill help limit an OSHA inspector’s ability to arguethat a low-level or unauthorized employee gave effec-tive consent to the search.

Create an OSHA Response TeamEvery employer should appoint an OSHA

response team trained to deal with OSHA inspec-tions. Notify all employees that if OSHA shows upon a job site, only the members of the OSHAresponse team have the authority to allow entry

onto the employer’s property or to participate in aninspection. In this way, only the most knowledge-able personnel will be responsible for decisions thatcould cost the company thousands of dollars.

Delineate Clear Duties for the OSHAResponse Team

The OSHA response team should:• Call the company’s legal counsel or risk manager

immediately.• Determine whether or not a search warrant will

be required, if OSHA does not have one already.In most circumstances you should not waive thewarrant requirement.

• Examine the credentials of the OSHA inspectorsand of anyone who accompanies them. Under nocircumstances should anyone other than anOSHA inspector be allowed to enter the premisesfor an OSHA inspection, even with a warrant.

• Ensure that the legal counsel or risk manager ispresent before any document or evidence isturned over to OSHA inspectors, even if theyhave a warrant. If legal counsel cannot be pre-sent, bring only those documents outlined in thewarrant to the inspector. Do not let the inspectorgo on a fishing expedition with your files.

• Control company documents. Although there isno requirement that you copy any documents forOSHA, you are better off reaching an agreementto copy the documents being surrendered toOSHA than you are letting it take the originals.1

Once you lose control of the originals, the riskescalates that you and/or OSHA will lose track ofdocuments or have an inaccurate record of whatwas taken.

• Get a detailed inventory of any documents or evi-dence seized.

• Have a camera, video camera, or CCTV systemand any appropriate measuring instruments toduplicate the images or readings taken by theOSHA inspector.

• Avoid ad hoc procedures in dealing with OSHA.Standardizing your OSHA procedures and reportsthroughout your locations is a critical step in en-suring that all your employees use best practices.

Keep and Update Material Safety Data Sheets andHazard Communication Information

The transmittal of material safety data sheets

Jose M. Chanfrau IV graduated from the AlabamaUniversity School of Law in 1985. He is the

general counsel for Downrite Engineering Corp.and its affiliates, Hurricane Waste, Hurricane

Electric, Hurricane Landscaping, and AmericanEnvironmental Recycling. He also represents a

related entity, Shores Development, Inc., a largeresidential homebuilder in south Miami-Dade

County specializing in luxury homes. He can bereached at [email protected].

Zayra W. Taupier is a human resources generalistin transition in the Miami, FL area. She has over12 years of broad strategic and operational HR

experience in fast-paced, high-tech, andconstruction environments. She can be reached

at [email protected].

Page 4: Final Version of OSHA Article ACC Docket 23 no. 10

62 ACC Docket November/December 2005

(MSDS) is required under OSHA’s HazardCommunication Standard (HCS)2 and is the singlelargest source of OSHA violations by employers.Employers that “use” hazardous chemicals must havea program to ensure the information is provided toexposed employees. “Use” means to package, handle,react, or transfer. According to OSHA, this standardis intentionally broad, and includes any situationwhere employees may be exposed to a chemical undernormal conditions of use or in a foreseeable emer-gency. The late Mike Royko, writing in the ChicagoTribune, lampooned OSHA’s MSDS for water, whichcautioned employers to keep it from freezing!

Keep and Update OSHA Log 300, 300A, and 301It is essential that you maintain the Log of Work-

Related Injuries and Illnesses (Log 300), theSummary of Work-Related Injuries and Illnesses(Log 300A), and the Injury and Illness IncidentReport (Log 301). • The Injury and Illness Incident Report (Log

301) is one of the first forms you must fill outwhen a recordable work-related injury or illnesshas occurred. OSHA provides that violators ofthe record-keeping and reporting requirementsmay incur civil penalties of up to $7,000 foreach violation.

• OSHA’s log of work-related injuries and illnesses(Log 300) is particularly problematic because ofits inherent tendency to overreport on-siteinjuries for contractors who employ subcontrac-tors. OSHA Directive CPL 02-00-135 requiressuch contractors to report the on-site injuries andillnesses of the subcontractor’s employees on thecontractor’s OSHA 300 form. Since the subcon-tractor will report the same injury on its OSHA300 form, the form overstates the number andfrequency of injuries for the contractor. This isimportant since OSHA Directive 2.80 partlydetermines the amount of a penalty based uponthe employer’s history of previous violations asreported in the OSHA 300 Log, according to anumerical weight of 1 through 3. On multiple-employer worksites, a general contractor is sub-ject to the same citation as the subcontractor,under the theory of “Controlling Contractor.”3

Have a Written Safety PlanOSHA requires a written safety plan that com-

plies with minimum requirements and additionalrequirements, which may include:• Hazard communication (right-to-know) material,

as required by 29 CFR 1910.1200; • Personal protective equipment;• Lockout- and tagout-specific practices and proce-

dures to safeguard employees from the unex-pected energization or startup of machinery andequipment, or the release of hazardous energyduring service or maintenance activities;

• Emergency action, for all facilities with morethan 10 employees;

• Fire prevention, for all facilities with more than10 employees;

• Job-safety analysis, for any job task where haz-ards exist; and

• Confined-space safety plans, where employeesenter confined spaces.Depending on the job, the safety plan may

require respiratory protection, hearing conservation,welding safety, powered truck/forklift safety, andblood-borne pathogens standards.

UNDERSTANDING HOW OSHA SCHEDULESINSPECTIONS

As you prepare for the inevitable inspection, youmay wonder what to focus on first. Knowing howOSHA schedules inspections can help you predictand prepare for your next encounter. In general,there are two factors that you must consider:OSHA’s priorities for scheduling inspections,which depend on OSHA’s perception of the degreeor imminence of the risk; and OSHA’s concernsregarding hot-button issues in particular industries.

Inspection PrioritiesAccording to the OSHA inspection manual, the

general order of priorities for inspections is as follows:• Imminent Danger Inspections. OSHA may obtain

an injunction where there is imminent danger,defined as danger “which could reasonably beexpected to cause death or serious physical harmimmediately, or before the imminence of such dan-ger can be eliminated through the enforcementprocedures, otherwise provided by this Act.” 4

• Fatality/Catastrophe Inspections. The OSHAinspection manual defines fatality as “an

Page 5: Final Version of OSHA Article ACC Docket 23 no. 10

November/December 2005 ACC Docket 63

employee death resulting from a work-relatedincident or exposure; in general, from an acci-dent or illness caused by or related to a work-place hazard.” The manual defines a catastropheas “the hospitalization of three or more employ-ees resulting from a work related accident; ingeneral, from an accident or illness caused by aworkplace hazard.”

• Complaint/ Referrals Inspections. A formal com-plaint launches an investigation. A signed docu-ment alleges “an imminent danger or the existenceof a violation threatening physical harm, submit-ted by a current employee, a representative ofemployees (such as unions, attorneys, elected rep-resentatives and family members), or presentemployees of another company if that employee isexposed to the hazards of the complained aboutworkplace.” Oral or unsigned complaints byemployees or nonemployees can also lead to inves-tigations. Sometimes police officers, terminatedemployees, medical technicians, or disgruntledemployees may start the process. For example, ifyou are involved in a contentious labor dispute, itis more likely that OSHA will receive a complaintfrom the union or employee. Referrals by otheragencies such as workers’ compensation are han-dled similarly.

• Programmed Inspections. Programmed inspec-tions of worksites are supposed to be scheduledbased upon objective or neutral selection criteria.The programmed inspections are selected accord-ing to national scheduling plans for safety andhealth or special emphasis programs. In the con-struction industry, for example, the data for thenational scheduling plans come from the Uni-versity of Tennessee’s Construction IndustryResearch & Policy Center (CIRPC) and McGraw–Hill’s F.W. Dodge Reports of construction activity.CIRPC’s contract with OSHA requires CIRPC tooperate OSHA’s Construction Targeting System,whereby CIRPC maintains a file of active con-struction projects and uses its econometric modelto estimate the duration of each project. Eachmonth CIRPC randomly selects about 1,500 pro-jects for safety inspections by OSHA personnel in120 area offices. Because the econometric modelsare heavily weighed toward projects of longerduration—so-called big box projects—smallerprojects are not inspected as often. According to

ACC RESOURCES ON WORKPLACE HEALTH AND SAFETY

ACC’s committees, such as the Employment and LaborLaw Committee and the Environmental, Health and SafetyCommittee, are excellent knowledge networks and have list-servs to join and other benefits. Contact information for ACCcommittee chairs appears in each issue of the ACC Docket, oryou can contact Staff Attorney and Committees ManagerJacqueline Windley at 202.293.4103, ext. 314, or [email protected] or visit ACC OnlineSM at www.acca.com/networks/committee.php.

• Thomas M. Giller, Neil H. Wasser, and Steven F. Witt,“What You Should Know About Reducing Your ExposureUnder OSHA,” 2003 Annual Meeting Program Material,available at www.acca.com/education03/am/cm/507.pdf.

• J. Michael Kettle and Neil H. Wasser, “Top 10 ThingsEmployers Need to Know to Survive Their Next OSHAInspection,” 2004 Annual Meeting Program Material,available at www.acca.com/am/04/cm/307.pdf.

• Kim R. Kolb and William K. Principe, “OSHAInspections: How to Prepare,” ACCA Docket 21, no 8(September 2003): 24–41, available at www.acca.com/protected/pubs/docket/so03/osha.pdf.

• “Responding to Government Investigations,” an ACCInfoPAKSM available at www.acca.com/protected/infopaks/govtinvest/INFOPAK.PDF.

• “Specific Procedures for During and After an OSHAInspection,” 2003 Annual Meeting Program Material,available at www.acca.com/protected/forms/environmental/osha.pdf.

If you like the resources listed here, visit ACC’s VirtualLibrarySM on ACC OnlineSM at www.acca.com/resources/vl.php. Our library is stocked with information provided byACC members and others. If you have questions or need assis-tance in accessing this information, please contact Senior StaffAttorney and Legal Resources Manager Karen Palmer at202.293.4103, ext. 342, or [email protected]. If you haveresources, including redacted documents, that you are willing toshare, email electronic documents to Julienne Bramesco, direc-tor of Legal Resources, [email protected].

From this point on . . .Explore information related to this topic.

Page 6: Final Version of OSHA Article ACC Docket 23 no. 10

64 ACC Docket November/December 2005

a Government Accounting Office Report releasedNovember 2002, because these databases focuson big construction sites, they do not identifysmaller sites that may actually be a greater sourceof hazards.5

Hot-Button Issues In attempting to predict what an OSHA inspec-

tion at your worksite might focus on, it can behelpful to know OSHA’s current hot-button issues.According to its Strategic Management Plan 2003–2008, OSHA focuses on specific, incrementalimprovements each year. For 2003–2004, the tar-gets are a 3 percent drop in construction fatalitiesand a 1 percent drop in general industry fatalities.With respect to injuries and illnesses, the agency isseeking a 4 percent drop in construction, generalindustry, and the following industries, which allhave high hazard rates:• Landscaping/horticultural services, • Oil and gas field services, • Fruit and vegetable processing, • Concrete and concrete products, • Blast furnace and basic steel products, • Ship and boat building and repair, and

• Public warehousing and storage. OSHA is also trying to reduce amputations in

manufacturing and construction by 3 percent; ergo-nomics-related injuries by 4 percent; blood lead levelsby 5 percent; and silica-related disease significantly. Inaddition to these goals, OSHA emphasizes industry-specific hot buttons. For example, in the constructionindustry OSHA focuses on the following dangers:• Trenching and Excavating. OSHA’s number one

goal in the construction industry is to protectemployees in excavations.

• Electrical Accidents. According to 29 CFR1926.416, no employer shall permit an employeeto work so near any part of an electric power cir-cuit that the employee could contact the electricpower circuit. If he or she is that close, theemployee must be protected against electricshock by a de-energized or grounded circuit,effective insulation, or other means.

• Struck-By Accidents. OSHA focuses on accidentsthat involve employees who are struck by vehi-cles, flying or falling objects, and employees whofail to wear head protection and goggles as pro-vided in 29 CFR 1926.95 and 29 CFR 1926.100.

• Fall Accidents. The fall-protection standards,

According to the Occupational Health and SafetyAct of 1970 (the Act) at 29 USC § 654, an employermust furnish employment “free from recognized haz-ards that are causing or are likely to cause death orserious physical harm to his employees,” and mustcomply with OSHA’s standards. This catch-all sectionof the Act is known as the “General Duty” clause, andit can have some unexpected repercussions. For exam-ple, in Bunge Corporation v. Secretary of Labor,i OSHAcited an employer who ran a grain elevator for 42instances of poor housekeeping. These violations con-sisted primarily of dust and grain accumulation, in vio-lation of § 1910.22(a)(1), the general housekeepingregulation which requires that the workplace be “keptclean and orderly and in a sanitary condition.” OSHAmade no showing that the dust and grain accumulationwas a hazard. Nevertheless, the court upheld the

citations. It stated that all that OSHA needed to showwas a violation rather than an actual danger or a haz-ard, and thus the “grain dust accumulations were prop-erly cited as an unclean condition of the housekeepingregulation.”ii

Another conclusion that might surprise you is theidentification of the “employer” for OSHA purposes.OSHA will look to the party that is controlling theworksite. The question of whether those employed onthe site are the controlling party’s “employees” for wageor tort purposes is not determinative, despite the wideuse of temporary or leased employees.iii

NOTES

i. 638 F.2d 831 (5th Cir. 1981).ii. Id. at 834.iii. Clarkson Construction Co. v. OSHA, 531 F.2d 451

(10th Cir. 1976).

SURPRISE! YOU MAY BE OVERLOOKING A SERIOUS VIOLATION

Page 7: Final Version of OSHA Article ACC Docket 23 no. 10

66 ACC Docket November/December 2005

which are outlined in 29 CFR 1926.501, man-date protection systems where there is an unpro-tected edge six feet above a lower level. OSHArequires that employers provide fall protection inone of three ways before work begins:•• Placing guardrails around the hazard area, •• Deploying safety nets, and •• Providing personal fall-arrest systems for each

employee.

KNOWING YOUR RIGHTS

Another essential element of preparation for anOSHA inspection is to know the rules that limitOSHA’s ability to inspect your company without a

warrant. According to both the US Supreme Courtand OSHA’s own Field Inspection Manual, anemployer has a right to require that an OSHAinspector seek an inspection warrant before enteringan establishment, in the absence of a recognizedexception to the warrant requirement. In the absenceof such a warrant, the employer may refuse entry.

Some observers believe that an employer shouldnot require an OSHA inspector to take the extrasteps needed to obtain a warrant, reasoning that amore thorough inspection might result. But theauthors’ past experience suggests otherwise. OSHAinspectors, like police officers, do not generallyreserve a lower standard for an inspection or searchfor those who make it easy for them by waivingtheir constitutional rights.

In Lake Butler Apparel Co. v. Sec. of Labor,i the OSHAofficer, who was on a routine inspection of plants in theLake Butler area, presented himself to the president of thecompany. The president then accompanied him through theplant. Violations in plain and obvious view were discoveredduring that walking tour, such as ungrounded machines andlack of color coating on the fire extinguishers.

The employer argued that the warrantless inspectionby the OSHA inspector violated the Fourth Amend-ment. It maintained that, except in certain narrowlydefined classes of cases, a search of private propertywithout proper consent is unreasonable unless autho-rized by a valid search warrant. The governmentresponded that business enterprises subject to OSHAinspections should fall under the “implied consent”exception to the Fourth Amendment. But the court wasskeptical of these broad claims, noting that, “in the pastthis exception has been limited to businesses the gov-ernment has had historically broad authority to regu-late,” for example, the liquor industry, “and any attemptto expand the concept must be cautiously analyzed.”

Other courts have held that a warrantless search ofcommercial property in general may be constitutionallyobjectionable, if the search is conducted so unsystemati-cally, infrequently, or unpredictably that the owner has noreal expectation that government officials will from

time to time inspect his property.ii As the Ninth Circuitnoted, when no regulatory plan is built into the legislationregulating a specific industry, the court has required awarrant as a condition of a reasonable search.iii For exam-ple, in the construction industry, there is no pervasiveinspection scheme, as there is in the case of firearms,alcohol, or mines. In Marshall v. Reinhold Construction,Inc., the Secretary of Labor argued that § 657 permittedwarrantless searches of a construction site.iv According tothe Reinhold court, “if the statute were to be construed topermit general warrantless searches, as the Secretaryinsists, it would be repugnant to the Fourth Amendmentand would necessarily fall.” (Emphasis added.) The courtconcluded that the government could pass constitutionalmuster by requiring OSHA inspectors to obtain searchwarrants to be issued by a neutral magistrate or judgeupon a showing of probable cause.

NOTES

i. 519 F.2d 84 (5th Cir. 1975).ii. See New York v. Burger, 482 U.S. 691 (1987) (junkyards);

United States v. Biswell, 406 U.S. 311 (1978) (firearms);Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970)(liquor).

iii. Railway Labor Executive Assoc. v. Burnley, 839 F.2d 575 (9thCir. 1988).

iv. 441 F. Supp. 685 (M.D. Fla 1977).

COME IN? REGULATED INDUSTRIES AND THE WARRANT REQUIREMENT

Page 8: Final Version of OSHA Article ACC Docket 23 no. 10

November/December 2005 ACC Docket 67

There is no doubt that an OSHA inspection isa stressful experience. But an employer gains noadvantage by waiving a warrant requirement.Requiring a warrant can deter a fishing expeditionif an overzealous official has decided to start one.It’s simply a matter of following proper procedure—something that both regulators and the regulatedshould always strive for.

The Legal BackgroundSection 657 is the polestar of OSHA’s entire

inspection and investigation scheme. According to29 USC § 657, an inspector may enter a worksite“without delay and at reasonable times,” and “toinspect and investigate during regular workinghours and at other reasonable times, and withinreasonable limits and in a reasonable manner.”

Employers may think that this section 657 doesn’trequire a warrant. Then, when they fail to object to awarrantless OSHA search, they are deemed to haveconsented to the search. But in reality, warrantlessentry contravenes the Fourth Amendment, whichrestricts the government’s ability to enter privateproperty. According to the US Supreme Court, asacknowledged in OSHA’s own Field InspectionManual, OSHA may not inspect the employer’s prop-erty or records without a warrant unless one of therecognized exceptions to the warrant requirementapplies: consent, third-party consent, plain view,open field, or exigent circumstances.6

Of course, some warrantless searches are permis-sible. For example, one court held that an employer’sFourth Amendment rights against illegal search andseizure were not violated when an OSHA compli-ance officer, while standing on the roof of a nearbyhotel, videotaped employees operating without fallprotective devices at the employer’s construction site.The court decided that the employer had no reason-able expectation of privacy, in that anyone in thehotel facing the site could observe employees.7

Another way for a warrantless search to proceedis on the grounds of implied consent. If the employeris in a heavily regulated industry with a pervasiveinspection scheme, as in the case of firearms, alco-hol, or mines, a court might find that the employerhad implicitly consented to the search, making awarrant unnecessary. (See “Come In?” on p. 66.)

Recently, one of the authors faced a situation

familiar to any criminal defense attorney. An OSHAinspector conducted his inspection at a constructionsite, having made no effort to contact the generalcontractor on the site. He obtained “consent” toenter private property from a subcontractor’s laborer,who spoke little or no English, contrary to the proce-dures outlined in OSHA’s Field Inspection Manual.Nevertheless, the OSHA inspector insisted that hehad consent to be on private property because noone objected to his presence. The OSHA inspectorthen proceeded to cite the employer for a “serious”violation for not having fall protection for anemployee standing 2 to 3 feet away from an openmanhole 2 feet in diameter with a raised lip of about12 inches—even though the employee’s primaryfunction was to act as an attendant to keep anyonefrom approaching the manhole. (All of these factswere stipulated to by the parties, and a decision isforthcoming from the administrative law judge.8)

If an Illegal Search OccursAt the present time, the role of the exclusionary

rule in OSHA proceedings depends on what circuitthe inspection occurred in. For example, the FifthCircuit has held that the exclusionary rule does notapply to proceedings correcting violations, but doesapply to OSHA proceedings to punish past vio-lations.9 Under this analysis, OSHA can compel anemployer to correct a violation it found as a result ofthe illegal search, but it cannot cite the employer forthat violation (unless the good-faith doctrine applies).The Eleventh Circuit treats violations of the warrantrequirement much more seriously. In the EleventhCircuit, if OSHA’s search violates the Fourth Amend-ment—because it was warrantless and none of theexceptions (such as the open-view doctrine) apply—then any evidence of a violation that OSHA finds isnot admissible for any purpose, the same approachthe courts take with respect to any illegal search inthe criminal law context.10

FINES AND PENALTIES FOR VIOLATIONS

When OSHA inspectors come to your premisesto conduct an inspection, they will come lookingfor serious, willful and repeat violations—and youshouldn’t be surprised if they find them. The

Page 9: Final Version of OSHA Article ACC Docket 23 no. 10

68 ACC Docket November/December 2005

agency, with its specific targets for decreases infatalities and injuries, takes an aggressive approachto citing and pursuing serious and other violations.(See “More Surprises” on this page.)

Fines depend on whether violations are de min-imis, other than serious, serious, repeat, or willful.OSHA fines can be heavy; a laissez-faire attitude toOSHA violations is not an option.

De Minimis ViolationsDe minimis violations are violations of stan-

dards that have no direct or immediate relation-ship to safety or health and shall not be includedin citations. They are technical violations. Absenta direct, immediate nexus between noncompliance

and employee safety or health, a violation of anOSHA standard may be classified in the de min-imis category under 29 USCA § 658(a). In oneinstance, open wiring was separated from conduct-ing materials by more than two inches exceptwhere it was plugged into the junction box, andthis was deemed de minimis.11

Other Than Serious Violations These are violations where OSHA cannot predict

whether the violation will result in serious injury orillness, but the hazard nonetheless has a direct andimmediate relationship to safety and health.12 Anexample of an “other than serious violation” is a sit-uation where an employer fails to document auditsof its lockout/tagout procedures where this viola-tion does not result in an injury.13 Other than seri-ous violations may be assessed a civil penalty ofup to $7,000 for each violation.

Serious Violations To demonstrate a “serious violation” of a safety

standard, OSHA must prove: • that the cited standard applies and that its

requirements were not met, • that employees were exposed to, or had access

to, the violative condition, • that the employer knew or, through the exercise

of reasonable diligence, could have known of thiscondition; and

• That there is substantial probability that deathor serious physical harm could result from thehazard.14

For example, in one case, the court determinedthat an employee was in danger of being buried byoverhead material or from a baler’s suddenlybecoming activated.15

One common serious violation that trips upmany employers is failing to document “frequentand regular inspections of the job sites, materials,and equipment to be made by competent personsdesignated by the employers,” a violation of 29CFR 1926.20(b)(2). In one case, a subcontractor’semployee brought suit against the general contrac-tor to recover damages for injuries when he fellfrom a ladder placed on top of a scaffold. Theemployee alleged that the general contractor failedto supervise the subcontractor adequately. Theappellate court noted that the purpose of regular

OSHA’s aggressive approach to violations can be seen inits enforcement of so-called performance-oriented standards,which set out the criteria to be met through safe workplaceperformance-oriented goals. These standards do not alwaysset out specific requirements; rather they address the goalsto be accomplished. As the Occupational Health andReview Commission noted, “A performance-oriented stan-dard gives employers the flexibility to adapt the rule to theneeds of the workplace situation, instead of having to followspecific rigid requirements.” (Secretary of Labor v. Tree ofLife, 2001 WL 694545 n.7.) Examples of performance-ori-ented standards include the head protection regulations(e.g., requiring hard hats).

The standard used to determine whether an employerviolated a performance-oriented standard is not whether areasonable person would be apprised of a hazard but,rather, whether a reasonable person familiar with condi-tions in the industry would have instituted protective mea-sures more elaborate than the precautions taken by theemployer. However, OSHA has repeatedly refused toacknowledge industry standards when issuing citations forviolations of performance-oriented standards. The result isthat a responsible employer who has attempted to complywith the performance-oriented standards, as written, islikely to be surprised by the conditions that OSHA consid-ers “serious” violations.

MORE SURPRISES:OSHA’S AGGRESSIVE APPROACH

Page 10: Final Version of OSHA Article ACC Docket 23 no. 10

70 ACC Docket November/December 2005

inspections and supervision of the jobsite under29 CFR 1926.20(b)(1)(2) was to prevent unsafepractices, but it agreed with the trial court thatthe general contractor was not required to havesomeone out there every day to make sure no onedid anything foolish.16

Another common serious violation of 29 CFR1926.100(a) occurs when employees fail to wearprotective helmets.17 For example, a court has heldthat the employer was properly penalized for allow-ing employees to climb ladders without hard hats,when materials were stored close to the edge of theroof 13 feet above the ground and could have top-pled on an employee. OSHA has been known toenforce these and similar rules with the utmost zeal;inspectors recently alleged serious violations involv-ing protective helmets where an employee was work-ing inside a newly constructed sewer pipe. Accordingto OSHA, it was possible that a loose rock mighthave fallen into the manhole while the employee was

standing at the bottom of the manhole.18

Fines for serious violations range from $5,000 to$7,000.

Willful or Repeated Violations According to OSHA, a willful violation exists

under the Act when the evidence shows either anintentional violation of the Act or plain indifferenceto its requirements.19 Repeated issuance of citationsaddressing the same or similar conditions or lack ofcommunication of the OSHA standards to lower-level personnel is enough to constitute a willful vio-lation. If the willful violation results in the death ofthe employee, it could result in a criminal penaltypunishable by up to six months imprisonment and afine of $10,000.

Fines for “willful” and “repeat” violations of theAct can reach $70,000. In additional, OSHAapplies multipliers to reflect the number of employ-ees exposed or the number of times an individualemployee was exposed. In one case from July 2001,an excavation contractor specializing in pipelineand tunneling work was cited for 16 violations, 6 ofwhich were categorized as willful. Employees wereperforming tunneling and deep excavation work,installing concrete pipes for a water main project inToledo, Ohio. The employer was fined $416,000 forthe violations. The amount of the violations waslarge but not unprecedented. Other violationsimposed by OSHA have ranged from $45,000 to$150,000 for cave-in, sloping, or shoring.

SOME SURPRISES ARE GOOD ONES:OSHA AND COOPERATION

Of course no employer wants workplace injuries.But any agency in the business of imposing citationsand fines runs the risk of confusing the means (finesand penalties) with the ultimate goal: improvingworker safety. Jonathan Snare, Acting AssistantSecretary of Labor for Occupational Health andSafety, spoke before the American Bar Association’sOccupational and Health Law Committee in KeyWest on March 2, 2005. He stated that, movingforward, the agency was adopting a “balanced”approach that would include “strong, fair and effec-tive enforcement.” Yet a few weeks later, on April 7,2005, Mr. Snare emphasized OSHA’s record for

• “Hot Topics in Europe from Eversheds’ Human ResourcesGroup” (2004), available at www.acca.com/protected/article/employment/hrg_may2004.pdf.

• International HR Hot Topics, Course 503 at ACC’s 2004Annual Meeting, available at www.acca.com/am/04/cm/503.pdf.

• Richard Mosher and Owen Warnock, All for One andOne for All: Navigating Trade Unions and Works Councilsin Europe, ACC Docket 23, No. 2 (February 2005):48–67, available at www.acca.com/protected/pubs/docket/feb05/union.pdf.

• The PLC Cross-border Labour and Employee BenefitsHandbook, 3d ed. (2004/05), a Global Counsel resource,available via ACC Online at www.acca.com/practice/global.php.

• For more international materials, visit the Virtual Libraryat www.acca.com/resources/vl.php.

Looking across the water . . . ACC international resources on workerhealth and safety

Page 11: Final Version of OSHA Article ACC Docket 23 no. 10

November/December 2005 ACC Docket 71

increasing the number of serious and willful cita-tions assessed against employers. Testifying beforethe House of Representatives in support of OSHA’sbudget request for 2006, Mr. Snare stated that“Federal OSHA’s serious violations increased by 3percent, and willful violations increased 12 percent,above the 2003 level.”

A better alternative to the current inspectionregime might be for OSHA and employers to worktogether on reducing workplace injuries. OSHA andthe employers in one state did just that. Employersin Maine successfully reduced violations whenOSHA shifted its emphasis from a citation-orientedrole to a more cooperative one designed to elimi-nate hazards.20 The area director, Bill Freeman,started by identifying several factors that were thencontributing to OSHA’s failure to reduce workplaceinjuries, including a system that rewarded staff forfinding as many violations as possible.

The Maine program changed the focus of OSHAinspectors by emphasizing the outcome rather than thenumber and type of citations. It also allowed employerswith the highest number of workplace injuries or ill-nesses to opt into the program, which meant thatalthough they would be subject to frequent inspections,they would not be subject to fines for safety violationsso long as the company was making a good-faith effortto eliminate the hazards or to continue under the cur-rent scheme. The companies involved included suchwell-known names as L.L. Bean and Friendly’s IceCream. During the first two years of the Maine pro-gram there was a 65 percent reduction in injury and ill-ness rates, along with a decrease of 47.3 percent incompensable workers’ compensation claims.

The Maine program was so successful that itwas expanded nationwide in December 1997 asthe Cooperative Compliance Program (CCP).Unfortunately, CCP did not meet with the accep-tance or success of the Maine program, perhapsdue to the way OSHA attempted to implement it.Unlike the Maine program, CCP was not volun-tary; OSHA gave nearly 12,000 worksites withlost or restricted workday injury/illness rates adeadline to join CCP or face thorough wall-to-wall inspections.21

The Court of Appeals for the DC Circuit in 1999vacated the CCP standard because it held thatOSHA had failed to comply with the AdministrativeProcedure Act’s requirements with respect to notice

and comment rulemaking. The court vacated therule without prejudice to OSHA’s being able to rein-troduce it after observing the APA’s requirements.So far, OSHA has failed to pursue the program.22

After OSHA’s failed attempt to implement CCP,it attempted to establish a collaborative emphasis ina different program, the Voluntary ProtectionProgram (VPP). VPP is a collaborative effortbetween employers and OSHA that includes a rig-orous on-site evaluation by a team of OSHA safetyand health experts and a commitment to remedyany hazards identified within 90 days. AlthoughOSHA cannot use information gathered during theVPP assessment for any enforcement activity at theworksite, it can use the information if the employer

FEW VOLUNTEERSThe VPP program, unlike the Maine pro-

gram, does not try to shift OSHA’s emphasison issuing citations to a more collaborativehazard-elimination role. This may explain whythe VPP model to date does not appear tohave been widely accepted by employers. (Seewww.osha.gov/dcsp/vpp/charts.html.) Thechemical industry leads the way in VPP, fol-lowed by electric utility companies, but labor-intensive industries like public warehousinghave not widely adopted the program, despiteOSHA’s having targeted these industries forinjury reduction. OSHA will have to do moreto convince employers that it can be a helpfulpartner in eliminating hazards.

VPP IS A COLLABORATIVE EFFORT BETWEENEMPLOYERS AND OSHA THAT INCLUDES ARIGOROUS ON-SITE EVALUATION BY A TEAM OFOSHA SAFETY AND HEALTH EXPERTS AND ACOMMITMENT TO REMEDY ANY HAZARDSIDENTIFIED WITHIN 90 DAYS.

Page 12: Final Version of OSHA Article ACC Docket 23 no. 10

72 ACC Docket November/December 2005

refuses to correct hazards found by the VPP team,the team has recommended enforcement action,and the Assistant Secretary has initiated suchaction. After the employer has been admitted to theVPP, the employer will self-inspect and is exemptfrom OSHA inspections. However, OSHA willinvestigate complaints or injuries just as if theemployer were not a member of VPP. (See “FewVolunteers,” on p.71.)

SOME SURPRISES ARE JUST NOT FUNNY

Sooner or later, you’ll hear it: “Knock, knock.”“Who’s there?”“OSHA.” And it won’t be funny if your answer is: “OSHA

who?” To avoid unpleasant surprises that couldimpose significant penalties on your company, pre-pare systematically and completely throughout yourcompany—and know your rights.

NOTES

1. Caterpillar Inc. v. Reich, 111 F.3d 61 (7th Cir 1997)(Employer required only to provide access to records forinspection and copying, not to copy them.)

2. 29 CFR 1910.1200.3. Flint Engineering & Construction Co., 15 BNA OSHC

2052, 2055 (No. 90-2873, 1992); Gil Haugan,d/b/a Haugan Construction Company, 7 BNA OSHC2004, 2006 (Nos. 76-1512, 76-1513, 1979); Centex-Rooney Construction Co., 16 BNA OSHC 2127(No. 92-0851, 1994).

4. 29 USC § 662.5. www.cdc.gov/elcosh/docs/d0100/d000072/d000072.html.6. Marshall v. Barlow’s, Inc., 436 U.S. 307 (1982). 7. L.R. Wilson & Sons, Inc. v. OSHA, 134 F.2d 1235

(4th Cir. 1998). 8. Secretary of Labor v. Downrite Engineering &

Development Corp., OSHRC Docket No. 05-0710.9. Smith Steel Casting Co. v. Brock, 800 F.2d 1329

(5th Cir. 1986).10. Donovan v. Sarasota Concrete Co., 693 F.2d 1061, 1071

(11th Cir. 1982).11. Donovan v. Daniel Construction Co. Inc., 692 F.2d 818,

820 (1st Cir. 1982).12. OSHA Field Inspection Manual Sec. 7 Chapter III.13. Secretary of Labor v. J-Lenco, OSHRC Docket No. 01-

0712.14. Occupational Safety and Health Act of 1970, § 17(k), 29

U.S.C.A. § 666(k).15. Omaha Paper Stock Company v. Secretary of Labor, 304

F.3d 779 (8th Cir. 2002).16. Fry v. Diamond Construction, Inc., 659 A.2d 241 (D.C.

Cir. 1995).17. Capeway Roofing Systems, Inc. v. Chao, 391 F.3d 56 (5th

Cir. 2004).18. Secretary of Labor v. Downrite Engineering &

Development Corp., OSHRC Docket No. 05-0710.19. 29 USC §666(a).20. www.fda.gov/cdrh/leveraging/03c.pdf.21. NAM Wins First Round In Lawsuit Against OSHA Over

Coercive Program, American Wire Producers Association,www.awpa.org/wireline/march98/nam.htm.

22. Chamber of Commerce of the United States v. U.S. Dept.of Labor, 174 F.2d 206 (D.C.Cir. 1999).

The opinions and conclusions in this article are solely those of theauthors and not of any other person or entity. The authors wish toexpress their appreciation to Glenn Trahan, safety director for DownriteEngineering Corp., for his comments and contributions. This article isnot to be construed as legal advice.

ACC Alliance Partners

The following ACC Alliance partners offer compliance-related services. To receive your ACCdiscount, be sure to mention that you are an ACC Member when inquiring about services.

Jordan Lawrence works with companies to implement records retention programs.www.jordanlawrence.com

WeComply’s online compliance-training programs help employers train employees in a range ofcompliance topics. www.wecomply.com