By James F. Laboe
A few weeks ago, Hal Engel wrote an article explaining how to file a Notice of Contest if you want to challenge an OSHA citation. ("Hang onto Your Right to Challenge an OSHA Citation," SafetyXChange Compliance Weekly, July 11 and 18.) As a follow-up to Hal'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 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)
Employers need to consider how strong a case OSHA has. 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 week, in Part 2 of this series, I'll look at the remaining five factors that determine whether it's advisable to contest an OSHA citation.
The Canadian Perspective
With the exception of the technical details such as penalty amounts and statutory citations, this article is relevant to Canadians.
Explanation: Canadian OHS laws also afford employers the right to contest the laying of charges or issuing of orders. Thus, employers in Canada confront the same decision as their American counterparts: To contest or not to contest. Although the deadlines and procedures aren't exactly the same as they are in the U.S. (and vary from province to province), contesting an OHS charge or order entails a serious commitment of time and energy just as it does in the U.S.
The factors that Jim analyzes in the article above (and next week in Part 2) are the same ones that Canadian attorneys would counsel their clients to consider in deciding whether to fight back or accept the penalty.
Factor 1: In Canada, the standard of proving an OHS violation is also by preponderance of the evidence (over 50%). In addition, there are affirmative defenses Canadian employers can use to contest a charge or order, most notably due diligence. Jim's analysis thus applies to you.
Factor 2: Of course, employers in Canada need to consider the penalty amounts when making their decision.
HEALTH & SAFETY LAW TRAVELOGUE
|Norm Keith - bio|
By Norm Keith, B.A., LL.B., CRSP
Brazil's is a rapidly expanding economy. Globally, it is in the middle between the fully developed economies and those that are emerging. To fully respect the rights and health and safety of workers in this economic powerhouse of Latin America, its government needs to enhance OHS legislation and enforcement.
Health & Safety Profile: Brazil
- Population: 184 million
- Labor Force: 82.6 million
- Total Accidents: 387,905
- Total Fatalities: 2,898
- Life Expectancy: 71.41 years
- GDP per Capita: $7,600
- Government Type: Federal democratic republic
- OHS Legislation: OHS statute which is part of the labour law. Enforcement is minimal and criminal enforcement is non-existent
(Statistics are from 2002)
About Norm Keith
Norm Keith, BA, LL.B., CRSP, is a partner in Gowlings' Employment and Labour Group, specializing in occupational health and safety law, workers' compensation, privacy law, labour and employment law, and alternate dispute resolution. He has extensive experience with wrongful dismissal, human rights, labour arbitration, judicial reviews, Ontario Labour Relation Board cases and fiduciary duty lawsuits.