By James F. Laboe

In Parts 1 and 2 of this series, I discussed four of the seven factors for employers to consider in deciding whether to contest an OSHA violation. Now I'll look at the final three. There's a checklist of all seven factors at the end in case you missed one of the earlier installments. There's also a briefing in Tools that describes the OSHA review process.

5. The Potential for Repeat Violations

Not all OSHA violations carry the same consequences. It depends on how OSHA characterizes the violation.

A repeat violation can carry with it a fine of up to $70,000 per violation. To establish a repeat violation under section 17(a) of the OSH Act, the Secretary of Labor ("Secretary") must prove that:

• The cited employer is the same one that was cited previously;
• The previously cited employer was cited at least once before (and within three years of the time that the previous violation became a final order);
• The earlier citation became a final order of the Occupational Safety and Health Review Commission; and
• The earlier citation was for a substantially similar violation.

Given the harsh penalty range for repeat violations, employers must take care to evaluate the potential for future repeat violations. This is especially true since "substantially similar violations" may be committed at different locations/worksites of the same company. It is also worth noting that if the past and present violations are of the same OSHA standard, then the burden to prove the "substantially similar" element shifts from the Secretary to the employer to prove otherwise.

6. The Risk of Collateral Litigation

All employers must be aware of the laws of the states where they conduct business. These laws will often dictate the type of collateral litigation an employer may face, directly or indirectly, as the result of OSHA violations and/or workplace accidents.

Personal injury actions by employees against employers are generally prohibited by state workers' compensation statutes. However, third-party lawsuits (e.g. against architects, engineers and property owners, products liability lawsuits, etc.) are a very common by-product to workplace accidents. In addition, some states impose heightened damages against employers in connection with workplace accidents. For example, in Massachusetts employees may receive double compensation if their injuries are the result of "serious and willful misconduct." See M.G.L.A. c. 152, §28. Under this statute, the employer, not its insurer (if any), must pay the extra compensation. Thus, employers affected by such statutes must be extra careful to avoid "willful" OSHA citations.

7. The Impact on Labor Relations

One final issue employers must consider in evaluating whether and how they contest OSHA citations is their relationship with respective labor unions. Maintaining a positive relationship with labor unions is a goal that should be shared by all employers. Contesting OSHA citations may have an adverse impact on these relationships. Employers must be aware of such impacts and govern themselves accordingly.

Conclusion

While the list of seven factors I've outlined is certainly not exhaustive, it briefly covers the issues every employer should take into consideration when deciding to contest OSHA citations. Stay Safe!

RECAP

7 FACTORS TO CONSIDER IN DECIDING WHETHER TO CONTEST AN OSHA VIOLATION

1. The strength of the citation;
2. The potential fine;
3. The abatement requirements and their associated costs;
4. Whether there's an adverse effect on your competitive position;
5. The potential for repeat violations;
6. The risk of collateral litigation; and
7. The potential impact on labor relations.

The Canadian Perspective

Canadian readers might find the terminology of this article unfamiliar. But the principles apply equally to them. You, too, have a right to contest OHS violations just the way Americans do. The seven factors Jim outlines in his article are the same ones you should consider in deciding whether to exercise that right.

HEALTH & SAFETY LAW TRAVELOGUE

CANADA

Norm Keith - bio

By Norm Keith, B.A., LL.B., CRSP

Canada is among the most active in the world in terms of workplace safety enforcement. Canada is made up of 14 provinces, territories and a federal jurisdiction, each of which has its own occupational health and safety law, set of regulations and regulatory agency. The level of enforcement varies from jurisdiction to jurisdiction. Historically, Ontario, the most populous province, has also been the most active in OHS enforcement. But the past three or four years has seen just about all of the provinces--including Ontario--step up the level of enforcement activity.

On March 31, 2004, a new criminal law called Bill C-45 took effect. Criminal liability for safety violations is not a new concept. Indeed, owners, directors, supervisors and even workers have been convicted of criminal penalties under the OHS laws. But Bill C-45 is designed to facilitate the prosecution of companies and company officials that engage in "wanton and reckless" disregard for life and safety.

So far, there has been only one prosecution under the law--against an Ontario supervisor rather than a corporation or corporate executive--and that case was settled by a plea bargain. So Bill C-45 as a prosecutorial tool remains largely untested.

Health & Safety Profile: Canada

• Population: 32.5 million
• Labor Force: 17.04 million
• Total Accidents: 348,854 (2003)
• Total Fatalities: 963 (2004)
• Life Expectancy: 79.96 years
• GDP per Capita: $29,800
• Government Type: Constitutional Monarchy and Federal Democratic State
• OHS Enforcement: Substantial regulatory enforcement, minimal criminal enforcement

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.

To view his bio, click here. You can contact Norm by email here or by phone at (416) 862-5699.

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