Part 3: Post-Inspection Defense and Resolution
If you have followed all safety protocols and OSHA guidelines, your inspection may have gone very well. However, if the CSHO has noted violations and it seems that a citation may be issued, there are actions you can take.
During the walkthrough, the employer has the right to have a representative accompany the CSHO. If that right was denied, you could object to evidence gathered. During interviews, members of management have the right to legal counsel. If that right was denied, you could object to the interview findings. After the inspection, OSHA must issue citations within six months. If a citation is issued after that deadline, you can object. However, in all these cases, you will need to show related prejudice.
Defense Options
If you face an OSHA citation, there are a few defense options to consider. One is the multi-employer site defense, through which employers can argue that they are not responsible for the hazards in question. To be successful in this defense, you would need to prove that you did not create the hazard in question; you did not have the authority to fix the hazard; you tried to persuade the responsible party to resolve the hazard; and you made substantial efforts to protect your workers from the hazard. In general, this defense is most appropriate for subcontractors who do not have sole control of a construction site. A general contractor would usually have such authority. If you attempt this defense, OSHA will then have to determine if you were responsible or not.
A similar defense relates to leased employees. You could argue that the worker exposed to a hazard was not actually your employee but was employed by another company. In this case, OSHA would perform an economic realities test to determine who was responsible for the employee. Among the details to consider are the following: whom the worker considers his or her employer; who pays the worker; who supervises the worker; and who has authority to hire or fire the worker. On most construction sites, contractors or subcontractors are responsible for leased employees, so this defense can prove difficult. This defense can also lead to finger-pointing on the worksite, which results in friction and poor working relations, so you should pursue it with caution.
Another defense option is to argue that the citation is the result of employee misconduct. You would need to establish that you had the proper policies and rules in place to prevent the hazard; you have communicated the policies and rules to your employees; you have actively sought out violations by your employees; and upon discovering those violations, you have actively enforced the policies and rules. To be successful in this defense, you will need to ensure that you have fully documented all the policies and rules, all communications with employees, and all corrective actions. You will also need to show that you have cited, suspended, or fired employees who have not followed the safety manual.
You can also present the defense of greater hazard. This approach argues that you did not comply with the standard or requirement because it was functionally impossible for you to do so. In other words, the compliance of the standard would have created a greater hazard than noncompliance. A similar defense is one of infeasibility. With this approach, you could argue that it was financially or technologically infeasible to comply. You would also have to prove that you used an alternative safety measure instead or that an alternative safety measure was not available.
If you believe that your inspection was unfair, you can also argue that you were the victim of an unreasonable search and seizure. In all these cases, you will undoubtedly need legal counsel to advise you.
Willful Violations
OSHA violations are divided into several categories: other than serious, failure to abate the prior violation, serious, repeat, and willful. A willful violation is considered the most severe. Such a violation indicates that an employer knowingly and voluntarily acted with disregard of the Occupational Safety and Health Act. It also demonstrates that the employer intentionally and deliberately acted with indifference to employee safety and requirements of the Act. A willful violation can be issued even if the workplace is safe and does not require a workplace accident to have occurred.
Note that employers may unknowingly be guilty of a willful violation because they do not understand all the Act’s requirements. They may also be subject to a willful violation if they are aware that their employees are not following specific provisions of the Act.
The consequence of a willful violation can be severe, often including fines of more than $100,000 for each violation. In addition, OSHA would likely issue a press release about the violation, which could hurt a company’s reputation. An employer cited for a willful violation will usually be re-inspected routinely.
With these ramifications in mind, it is critical that you avoid a willful violation. You may think that you know how to keep your workers and worksite safe, but you must do so in accordance with OSHA requirements.
Resolution with OSHA
After an OSHA inspection, if you are issued a citation, you will receive it by mail. At this point, you will need to move quickly. Once you receive the citation, you have exactly 15 days to respond to it.
One option is to pay the associated fee for the citation and correct the violation. It may be tempting to choose that option and move on. But use caution before you do that. You must review the type of violation for which you have received a citation. While the fine for a serious violation might not be huge, it could become the precedent for a repeat violation in the future.
Another option is to request and attend an informal conference. This conference is a chance for you to meet with the OSHA investigator and gather more information about the allegations. Bring your safety manual, incident reports, and other documentation, but do not surrender them or allow them to be copied (as they may be protected under privilege law). You must listen to the details and remain an advocate for your company. This arena is not the place for you to admit to any wrongdoing, but it will help you decide whether to negotiate a settlement or contest the citation.
If you negotiate with OSHA, be wary of the zero dollar citation. Some citations categorized as other than serious may not carry monetary penalties. And OSHA officials may offer to cancel those citations if you agree to pay the full fine for others. However, they may have fabricated the less than serious citations just so they can drop them and make you feel like they are doing you a favor. Do not fall for this tactic.
If you choose to contest the citation, this action initiates a legal proceeding so you can defend your company against the OSHA allegations. A judge who sits on the Occupational Safety and Health Review Commission will hear your case.
Moving Forward
No matter how your OSHA inspection is resolved, be sure to maintain your policies and procedures. Learn from any missteps, and ensure that as your company evolves, you have a well-rounded, consistent, and well-documented safety program in place.
John Kenney has over 45 years’ experience in the roofing industry. John started his career by working as a roofing apprentice at a family business in the Northeast to operating multiple Top 100 Roofing Contractors. As Chief Operating Officer, John is intimately familiar with all aspects of roofing production, estimating, and operations. During his tenure in the Industry, John ran business units associated with delivering excellent workmanship and unparalleled customer service while ensuring his company’s strong net profits before joining Cotney Consulting Group. If you would like any further information on this or another subject, you can contact John at jkenney@cotneyconsulting.com
