OSHA Citations: To Challenge or Not To Challenge
September 29th, 2009
Did you know that companies have the right to challenge/dispute an OSHA citation? Contesting an OSHA citation is difficult and takes time, money and effort.
So, how should employers decide whether to contest an OSHA citation? Consider the following factors:
1. How strong is OSHA’s case?
Can they prove
- The cited standard applies to the work being carried out.
- The employer failed to comply with the cited standard.
- Workers were exposed to a hazardous condition.
- The employer knew or could have known of the condition with the exercise of reasonable diligence.
Can you prove
- Uncontrollable employee misconduct.
- Unclear standards.
- No hazard was posed by the violation or a greater hazard was created by complying.
- Inability to comply.
- OSHA officer did not follow proper inspection procedures or failed to issue a citation with reasonable promptness.
2. How big is the potential fine?
Consider the following range of possible penalties available under the OSH Act:
- De minimus notice $0
- Non-serious $0 – $7,000
- Serious $1 – 7,000
- Repeated $0 – $7,000
- Willful $5,000 – $70,000
- Failure to abate (fix the problem) $0 – $7,000 per day
- Failure to post $0 – $7,000
There are formulas OSHA uses to calculate penalty amounts. Employers should understand these formulas and how they were used against them. Otherwise, and employer won’t be able to make an informed decision regarding the “fairness” of the penalty and whether to contest it.
3. How difficult/expensive is it to fix the problem?
A serious citation carrying a mere $500 penalty might no look like a big deal, but it could have a multi-million dollar impact if it involves making a significant changes to operations, processes or machinery.
4. Does it hurt the company’s image?
It is true that OSHA citations cost companies money but they can also cost them their reputation leading to potential losses in sales.
5. The Potential for Repeat Violations.
A repeat violation can carry a fine of up to $70,000…per violation! To establish a repeat violation under the OSH Act, it must be proven 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 becam a final order of the Occupational Safety and Health Review Commission; and
- The earlier citation was for a substantially similar violation
6. The Risk of Collateral Litigation
An OSHA citation, particularly a willful citation can often trigger all sorts of other legal actions to be taken by the parties involved. Third party lawsuits are very common and employers can face a multitude of direct and indirect costs to defenc from them, particularly where an incident has resulted in death or serious injury.
7. The Impact on Employee Morale
Maintaining a positive relationship with employees 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.
Summary of Key Points
- Carefully consider the costs and possible consequences of contesting an OSHA citation before taking action.
- Measure the strength of the case against you compared with your ability to defend yourself.
- Consider the amount of the penalty imposed by the citation as tho whether it is appropriate/fair under the circumstances.
- Account for the direct/indirect consts associated with correcting the problem.
- Remember your company’s reputation is tarnished with OSHA citations.
- Keep in mind that repeat violations typically deliver a much more serious blow to the pocket book.
- An OSHA citation could touch off other, third party legal actions.
- OSHA citations can have a negative effect on employee morale which in turn can affect production and quality amongst other things.
At SWMSC we provide concise, expert consultation on how to prevent OSHA citations before they happen. If you are cited we work with you to identify the best course of action, representing your best interests before OSHA.
Contact us today and ask us “HOW TO PREVENT/STOP OSHA CITATIONS.”
