Safety Plus, Inc’s Ten Reasons to Contest an OSHA Citation
In 2017, there were 32,396 federal OSHA inspections and another 43,551 inspections performed by state OSHA inspectors. If you were one of the lucky businesses visited by OSHA and they found issues in your place of business you probably a citation. If you have already received an OSHA visit in 2018, you may be waiting to hear from OSHA, who has up to six months (from the start of the inspection) to issue a citation. Once a citation arrives, you have 15 days to act on it.
How would you handle this?
With a 2018 maximum penalty for either a Serious or Other-than-than-serious Violation at $12,934 (per citation), many companies will make an informal appeal to receive a reduction and then make long-term payments on the citation. This is typically because the cost of legal fees far outweigh the cost of the penalty.
However, at $12,934 per violation it doesn’t take much to run up a $50,000 penalty if there are multiple violations. Minor things like forgetting to use a seatbelt on a forklift, not using the right description on an OSHA 300 log, or using an extension cord for a permanent application instead of temporary application can all result in citations that cause an employer to lawyer up.
Employers cited for Willful Violations, where OSHA believes the employer knew what it was supposed to do but made a conscious decision not to, face penalties ten times higher, with a cost of $129,336 per violation.
The penalty for Repeated Violations is the same: $129,336 per violation. For those of you with multiple locations, Repeat Violations are considered across the entire organization. To make matters worse, what used to be a three-year look into the past for Repeat Violations changed to five years in 2016 and in February of this year, the Second Circuit Court of Appeals ruled that there is no statutory limitation on Repeat Violations.
So how do you handle this?
When it comes to citations, you have three choices:
- Accept the citation as written and pay the penalty
- Arrange for an informal conference with OSHA in hopes of reducing the penalty amount
- Contest the citation
Believe it or not, not all OSHA citations are worth contesting. Often times, the correct decision may be to accept the citation or reach a settlement with OSHA at the informal conference. However, when costs start to add up, contesting may be the best decision for your company.
Safety Plus, Inc’s Ten Reasons to Contest an OSHA Citation:
- No Violation Occurred
OSHA generally has the burden of proving that a violation occurred. If this burden cannot be met, or the evidence shows that no violation occurred, then contesting the violation is recommended.
- Wrong Category of Violation Cited
OSHA has a higher burden of proof citing a Willful Violation than for a Serious or Other-than-serious Violation. If the proof cannot be met for the category cited, you have a good chance of at least drastically reducing the cost of the Citation. Remember, a Willful Violation ($129,336) is ten times more expensive than a Serious Violation ($12,934).
- Availability of Positive Defense
There are certain procedural and substantive defenses required to overturn OSHA violations. The burden of proving a defense lies with the employer. If this burden can be met for the cited violation think about contesting.
- Proposed Penalty Amount is Significant
Where the cost of the citation becomes over-burdensome, the financial stakes may be too high to not consider contesting the citation.
- Costly Abatement
Where the citation mandates a costly abatement, or an abatement which requires business disruption, think about contesting.
- Settlement Options
It may be worth going through the Informal Settlement and if the result is not acceptable, think about contesting the citations. If an Informal Settlement is not a viable option before the applicable deadline, contesting the citations may be necessary to preserve settlement as an option further down the line.
- Risk of Repeat OSHA Citations
Previous citations can be cited by OSHA as a basis for later Willful or Repeat Violations. If a citation which places an employer in OSHA’s Severe Violator Program increases the frequency of inspections, the risk of future OSHA inspections and citations can be a reason to think about a Notice of Contest.
- Future Potential Civil Liability
State laws vary significantly as to the admissibility and relevance of OSHA citations in personal injury litigation. The admissibility and relevance of the OSHA citation may help you to decide to contest it.
- Reputation in the Industry
For many businesses, a reputation for safety in the workplace is an asset worth fighting to protect. An OSHA citation may be the basis for the loss of ongoing business, loss in reputation, or the loss of future business relationships. Inclusion in OSHA’s Severe Violator Enforcement Program can be especially damaging. For reputation alone, a Notice of Contest may be worthwhile.
- Increased Worker’s Compensation Insurance Premiums
Several states have statutes which authorize an increase in workers’ compensation insurance premiums based on safety and health violations. An increase in worker’s compensation insurance premiums may be a reason to contest an OSHA citation.
A surprise visit from OSHA can be costly but knowing when to contest violations can significantly reduce the amount your company pays after the visit. For more information, check out Safety Plus, Inc’s Webinar: “Managing Unexpected OSHA Visits, Part 3: What to do after the OSHA inspection.”