OSHA

Deciding Whether to Contest an OSHA Violation, Part 1

James F. Laboe, Esq.
Orr & Reno

A few months ago, Hal Engel wrote an article for SafetyXChange, an online community for safety professionals, explaining how to file a Notice of Contest if you want to challenge a U.S. Department of Labor Occupational Safety and Health Administration (OSHA) citation (see "Hang onto Your Right to Challenge an OSHA Citation," SafetyXChange Compliance Weekly, www.safetyxchange.org, July 11 and 18, 2005.) As a follow-up to Engel's piece, I'd like to address the following questions:

Should employers even bother to make the effort to contest a citation in the first place? When does a challenge make sense? And when is it simply better to accept the citation and move on?

To Challenge or Not to Challenge
The decision about whether to contest an OSHA citation is one that employers need to approach with care and deliberation. Contesting an OSHA citation isn't easy — it takes time, money and effort. And success is far from guaranteed. But some employers will rush into a contest without fully understanding what's involved.

Conversely, failing to challenge an OSHA citation can lead to unforeseen and adverse consequences down the road. Many employers fail to recognize, let alone analyze, these consequences. This is especially true when the size of the civil penalty isn't significant. Many employers will simply accept the citation and "pay the two dollars in an effort to make nice" with their local OSHA area office and/or labor unions.

Factors to Consider
How should employers decide whether to contest an OSHA citation? I advise my clients to consider the following seven factors:

• The strength of the citation;
  
  
• The potential fine;
  
  
• The abatement requirements and their associated costs;
  
  
• Whether there's an adverse effect on competition;
  
  
• The potential for repeat violations;
  
  
• The potential for collateral litigation; and
  
  
• The potential impact on labor relations.

This list isn't exhaustive and employers must take into account pertinent issues affecting their particular operation.

1. The Strength of the Citation(s)
Business owners need to consider how strong a case OSHA has against them. To prove a violation of a cited standard under §5(a)(2) of the OSH Act, OSHA — technically, the Secretary of Labor — must prove by a preponderance of the evidence (i.e., more than 50%) that:

• The cited standard applies;
  
  
• There was a failure to comply with the cited standard;
  
  
• An employee had access to the violative condition; and
  
  
• The employer knew or could have known of the condition with the exercise of reasonable diligence.

So the first thing an employer should ask is whether OSHA has a good chance of proving all four of these elements by a preponderance of evidence.

Another factor affecting the strength of the case is the availability to the employer of defenses. There are two kinds of defenses: substantive and procedural. The former includes, among others, unpreventable employee misconduct, vagueness of the standard, no hazard, greater hazard and infeasibility of compliance. Procedural defenses include failure to follow inspection procedures, citation not issued with reasonable promptness, etc.

So, the second question employers should ask is whether any of these defenses are available.

2. The Potential Fine
The OSH Act provides the Secretary with the following wide range of penalties:

De minimus notice	$0
Nonserious	$0 - $7,000
Serious	$1 - $7,000
Repeated	$0 - $70,000
Willful	$5,000 - $70,000
Failure to abate	$0 - $7,000
Failure to post	$0 - $7,000

To be consistent, the Secretary has created detailed formulas for calculating penalties within the above ranges. Employers should understand these formulas and understand how penalties were specifically assessed against them. Otherwise, an employer won't be able to make an informed decision regarding the "fairness" of the civil penalty and whether to contest it.

Next month, in Part 2 of this series, we'll look at the next two factors that determine whether it's advisable to contest an OSHA citation.