American Bar Association

Forum on the Construction Industry

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Responding to a Catastrophic Accident ―

What you Need to Know About an OSHA Investigation

STEPHEN C. YOHAY

Thelen Reid Brown Raysman & Steiner, PLLC

Washington, DC

DAVID E. JONES

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Atlanta, Georgia

AARON DEAN

Fabyanske Westra Hart & Thomson P.A.

Minneapolis, Minnesota

April 24-26, 2008

La Quinta Resort and Club―Palm Springs, California

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©2008 American Bar Association

THE SCENARIO

Just before a long weekend, your client calls in a panic when a life-threatening injury or fatality has occurred on one of its job sites. Government safety investigators are arriving on the scene. What do you do?

INTRODUCTION

Under its internal procedures, inspections by the Occupational Safety and Health Administration (OSHA) begin nearly immediately following a major accident involving a catastrophe, employee fatality, or other serious employee injuries. Indeed, employers are required to verbally report to the nearest OSHA Area Office, within eight hours of its occurrence, any job-related fatality or an accident requiring the hospitalization of three or more employees.[1] Such a report is virtually certain to trigger an inspection, often within hours thereafter. OSHA’s guidelines state that where catastrophic or fatal accident occurs, the inspection should begin as soon as possible, “ideally within one working day.” [2]

Contractors dealing with the immediate aftermath of a tragic and serious accident are often unprepared to cope with such an inspection. Typically, they are overwhelmed with competing demands from numerous sources, such as a variety of government agencies, insurance investigators, other contractors, and the owner. The result may be an OSHA inspection that is intrusive and disruptive of operations, and may result in significant OSHA citations and even a criminal investigation where an employee fatality occurs. Also, the outcome of the OSHA investigation may have an adverse effect on related liability issues, such as damage or personal injury claims.

The best way for a construction contractor to address an OSHA inspection triggered by a catastrophic accident is to prepare for that possibility in advance by anticipating the issues that arise, and planning to the extent possible how they would be addressed. While every inspection is different, there are certain issues that may be anticipated and planned for.

This presentation offers several guidelines and information for addressing the issues that may be expected to arise in OSHA inspections. This information represents the collective experience of the presenters in advising contractors and industrial employers in federal and state OSHA inspections of major accidents throughout the nation.

Most of the discussion addresses inspections by federal OSHA under the Occupational Safety and Health Act (“the OSH Act”).[3] The last portion of this paper addresses states that have their own plans for occupational safety and health enforcement.[4] Not every guideline or suggestion discussed here is appropriate for all inspections. All have proven effective in a wide variety of inspections, however. Also, this is not intended as a compendium of OSHA law. Rather, we attempt only to highlight the issues most pertinent to inspections.

A. Counsel’s Goal: Manage the OSHA Inspection Process

The inspection process can be managed so as to minimize operational disruptions. The goal usually is allow OSHA to perform its task while minimizing the intrusion created by the inspection. Managing the inspection should begin as soon as possible following a major accident, and is best performed on-site.

Section 9(c) of the OSH Act prohibits the issuance of a citation “after the expiration of six months following the occurrence of any violation.”[5] Generally, although there are exceptions, the six-month period as treated as starting on the day the agency begins its onsite investigation. This means that, as compared with most litigation, OSHA inspections proceed relatively quickly.

B. The Federal OSHA Inspection
Under the Supreme Court’s decision in Marshall v. Barlow’s, Inc.,[6] an employer may insist that OSHA obtain a warrant to enter a worksite. Many practitioners advise that this is usually pointless, however, and needlessly risks irritating the inspectors. Clearly, where there has been a major accident, a federal magistrate will almost surely issue a warrant.
Also, under the “plain view” doctrine of constitutional law, and under Section 8(a) of the OSH Act, an OSHA Compliance Officer need not present his credentials to an employer and obtain consent to entry until he physically seeks to enter a jobsite. He may observe and photograph a worksite from a location outside the project, to the same extent as any person may observe the project from off-site.[7]
Consent to an inspection may be given by any competent management official, including a project manager or foreman.[8] Also, on a multi-employer worksite, a party that has control of the overall worksite, such as a project director, or an owner, can give consent to an OSHA inspection of the site.[9]

1. The Opening Conference

Once a Compliance Officer enters the jobsite, he conducts an Opening Conference. This is typically attended by representatives of all contractors and collective-bargaining representatives, if any, on the site. At such a conference, the Compliance Officer will gather basic information about the employers and unions that are present, and begin collecting facts about any accident that has occurred. He will also begin to explain how the investigation will be conducted.[10] It should be understood that even if an inspection is triggered by an accident, the inspection need not be limited to that issue. Absent a limiting agreement, all OSHA compliance issues are open for inspection.
Often, especially where there have been serious injuries to employees, the OSHA personnel may be impatient to obtain documents, tour the jobsite, and begin employee interviews. Occasionally, Compliance Officers will threaten to obtain a warrant, or warn darkly that the employer is obstructing a federal investigation. OSHA is obligated under the OSH Act, however, to conduct an inspection "at reasonable times" and in “a reasonable manner.[11] Experience teaches that most OSHA Compliance Officers will agree to sensible protocols for the inspection. The contractor’s counsel should seek to establish a working relationship with the Compliance Officers, politely but firmly setting “ground rules” for the flow of information and scheduling of interviews.[12] The Compliance Officers need to be persuaded that the contractor intends to cooperate with the investigation, but that the inspection must be structured so that the work of dealing with the consequences of the accident, and resuming construction, can move ahead.

2. The “Walkaround”

Compliance Officers have the right to inspect the worksite, including taking photographs and videotape.[13] Each employer and union (if any) who is involved in the inspection has the right to designate a person to accompany the Compliance Officer, and should do so.[14] So-called “walkaround representatives” should be trained to take their own photos or videos of whatever OSHA photographs, and to make careful notes of what transpires during the inspection. It is usually preferable for contractors to take their own photographs than to rely on informal assurances from Compliance Officers that the agency will share copies with the contractor. Sometimes, these assurances prove to be unreliable.[15]

Contractors are also well advised to make clear to Compliance Officers that while they may speak momentarily with employees on the job during the “walkaround,” if a lengthy discussion is desired, formal interviews must be scheduled. Also, a contractor’s “walkaround” representative should understand that no conversation with an OSHA Compliance Officer can be considered to be “off the record.” Anything that a representative of the employer says to the Compliance Officer may be “fair game” and relied upon in support of a citation.

In cases where exposure to toxic substances are an issue, OSHA may conduct industrial hygiene monitoring, either by taking air samples of a particular area, or conducting personal monitoring by collecting samples of the air inhaled by individual employees.[16] Employers are well advised to conduct “parallel” monitoring. Otherwise, there usually is no way to obtain data that is contemporaneous with that which OSHA collects.

When a major accident occurs, OSHA may insist on an agreement that controls the disposition of the physical evidence. For example, where a structure has collapsed, the parties involved often will remove the remnants from the jobsite, and arrange for secured storage. Sometimes, OSHA will insist on reviewing and approving such an agreement, and upon having access to the evidence.

OSHA may also request that tests be performed on structural remnants, either non-destructive or destructive. Typically, the arrangements call for such tests to be performed by third-party experts, and are made by the parties on the jobsite. Depending on the circumstances, it may be useful to invite OSHA to review testing protocols, and observe tests as they are performed, even if off-site. These are issues that must be negotiated with OSHA – there are no hard and fast principles.

Occasionally, a contractor may assert that disclosure of information about a design or a structure would reveal information that is a trade secret or “business confidential.” The burden is on the party asserting this point to make certain that information or materials that are given to OSHA are properly labeled or otherwise identified as such. This places OSHA employees on notice that they may not disclose this information without first notifying the party that provided the material.[17]

3. May OSHA Shut Down a Job?
Compliance Officers occasionally will threaten to shut down a project, or a portion thereof, unless the contractor modifies a work practice immediately, or does not respond instantly to an investigatory demand. OSHA has no such power, however. Under Section 13(a) of the OSH Act,[18] only a federal district court judge may shut down an employer’s operation upon a showing that employees are exposed to an “imminent danger.” [19] As a practical matter, OSHA rarely seeks such judicial relief.

Contractors should also be advised that the opinion of a Compliance Officer as to what constitutes compliance with OSHA requirements is by no means the last word on the subject. First, official interpretations of OSHA standard are usually issued by the OSHA national office in form of various informal publications that can be found on OSHA’s internet website, www.OSHA.gov. Second, in fairness, Compliance Officers are charged with enforcing standards that cover an enormous range of industrial and construction hazards, and cannot be expected to be expert in each area. Contractors often are concerned that disobeying an order from a Compliance Officer will yield a less favorable outcome in an inspection. While cooperation and good faith are clearly well-advised, there are times when an employer should demur when faced with a Compliance Officer’s demand, and check with safety and health professionals, or counsel, to confirm the legitimacy of what is being demanded.

4. OSHA Requests for Documents and Other Evidence

Under Section 8(c)(1) of the OSH Act, OSHA has broad power to obtain documents and evidence, especially where there has been an accident.[20] Moreover, OSHA may issue administrative subpoenas, enforceable in federal district court, to compel testimony and the production of evidence in connection with inspections and investigations.[21] There are two categories of records that the Compliance Officers may seek to review: (1) records that are required by law to keep; and (2) records that are not required by law, but that are otherwise related to the inspection.

Employers should be prepared, nonetheless, to persevere and insist that document requests be in writing and submitted to a single management representative. Otherwise, Compliance Officers often will ask anyone they see for copies of documents, and the employer loses the opportunity to review the information that is requested and disclosed, and to maintain a proper document control system. Indeed, the document production process should be managed by counsel as if it were discovery in civil litigation. For example, an employer may be entitled to withhold a record to which an evidentiary privilege applies, such as records prepared in anticipation of litigation.[22] Unless conducted under privilege, typical self-critical analyses are not privileged. The most frequent example are employer’s self-audits, or insurance underwriters’ reports on jobsite conditions.[23]

Examples of the types of documents often requested are:

(1) Design and engineering drawings

(2) Safety and health program documents

(3) Ongoing project testing results, such as concrete tests

(4) Correspondence among parties on the site

(5) Insurance underwriters’ and other inspection reports

(6) Contracts among the parties on the site

(7) Photos, videos, industrial hygiene sampling records

5. OSHA Interviews of Employees
OSHA has the right to interview employees “privately.” [24] In reality, this is not so. First,

the employer is entitled to have a management representative present during interviews of managers. The representative may be an attorney or another manager, such as a safety director. This is an important right that an employer should take advantage of, since statements by those in supervision are imputed to the employer, and may be construed as admissions against interest. This is true for any person acting in a supervisory capacity, even a low-level or temporary foreman.

OSHA has not explicitly recognized this point in its inspection directives, but as a practical matter, Compliance Officers rarely object to the presence of employer representatives, including counsel, when members of management are interviewed. Also, one court has implicitly recognized this right.[25] The main value of counsel in such interviews is to assure that the Compliance Officers ask questions that witnesses understand, and to gain a sense of what issues are of interest to the investigators.

Where a union is present and a member of the bargaining unit is interviewed, a union representative, such as a steward, will be invited by OSHA to attend the interview. In theory, a non-supervisory employee could request that a member of management be present for an interview. Policies regarding the employer's presence during employee interviews vary widely among OSHA Area Offices and even individual Compliance Officers. Some Compliance Officers allow employer representatives to be present during interviews if the employee affirmatively elects to have the representative present. The large majority of Compliance Officers refuse to allow an employer representative to be present, however, even if the employee requests it. If the Compliance Officer strongly objects, it may not be worth creating resentment that is likely to result from forcing the issue.

Employees should understand and may be told, however, that their only obligation in an OSHA interview is to answer questions to the best of their ability, and to tell the truth. As noted below, it is a federal crime to lie to or mislead a federal investigator. There is no obligation, however, to allow oneself to be recorded, either by audio of video, or to sign a statement.

A contractor should consider taking the position, as matter of policy, that it will not permit its managers and supervisors to be recorded, or to sign statements prepared by the Compliance Officer or "sign off' on the Compliance Officer's notes of the interview. OSHA Compliance Officers may not be pleased with this, but especially in a case where significant citations are likely, for a contractor’s counsel, it is worth considering taking a firm position on this point. OSHA Compliance Officers are unevenly trained as investigators, and their questions often are not well formed. This can lead to misleading and incomplete answers, or truncated written witness statements, all of which may be construed as admissions against the contractor’s interests. This can be difficult for employer counsel to deal with if the supervisor who was interviewed testifies in subsequent hearings. If OSHA considers the case to be important enough, it may issue an administrative subpoena, and conduct a sworn administrative deposition before a court reporter, but this is not often done.

Employees may sometimes ask the employer if they are required to appear for an OSHA interview. They are not so required, but if they refuse, OSHA may then issue an administrative subpoena to the employee, which is ultimately enforceable in federal district court. It is better for the employee to appear when asked.

6. Demonstrations of Work or Processes

The employer is not required to stage demonstrations for OSHA. OSHA is entitled to observe work as it is being performed, but cannot insist that it be shown how equipment operates, or how particular operations are performed. Sometimes, however, it is to an employer's advantage to stage such demonstrations, as when it is necessary to clarify misunderstandings or simply to impress the Compliance Officers. Be mindful, however, that “Murphy's Law” is operative, and that even the best planned demonstrations sometimes go astray at just the wrong time.

7. What are an employer’s obligations under OSHA?

(a) OSHA Standards and the General Duty Clause

Under Section 5(a)(2) of the OSH Act,[26] employers are required to comply with specific OSHA standards that address workplace hazards. Most of the standards applicable to construction work are found in 29 C.F.R. Part 1926.[27] Also, some standards applicable to construction are also found in 29 C.F.R. Part 1910. These are standards that are applicable to “general industry,” but which are incorporated by reference in Part 1926. Employers must also comply with certain OSHA regulations, such as those requiring compliance with OSHA’s system of recordkeeping for injuries and illnesses.[28] Note that this system is not the same as that used for workers ’ compensation purposes, and that workers compensation records do not constitute compliance with OSHA recordkeeping requirements.

When the OSH Act was enacted, Congress realized that OSHA would not be able to promulgate standards that address every hazard faced by employees in the workplace. Therefore, the Act contains a “catch-all” provision known as the “General Duty Clause.” That provision applies where no specific standard addresses a hazard,[29] and requires an employer to provide his employees with a workplace that is free of “recognized hazards likely to cause serious physical harm or death.” [30]

It is critical to understand that there need not be an accident for an OSHA violation to occur. An OSHA violation occurs where an employee is exposed to a prohibited hazard, and the other elements of a violation are proven.

(b) Criminal Violations

Under Section 17(e) of the Act, a violation of a standard (but not the General Duty Clause) that is proven to be willful may be a criminal act where the violation was a cause of an employee fatality.[31] Criminal cases under the Act are brought by the Justice Department and are prosecuted by the United States Attorneys. It is now virtually routine for OSHA to consult with the local U.S. Attorney when a workplace fatality occurs.[32] In such cases, an evaluation is made as to whether a criminal investigation may be warranted. Such cases are rare, but they do occur, and employers have been prosecuted and convicted under the OSH Act.[33] The Act also contains other criminal sanctions, such as for making false statements to OSHA investigators and filing false reports.[34]

B. Post-Inspection Procedures

1. Closing conference

When the investigating OSHA compliance officers have completed their investigation of the accident, they will arrange for the conducting of a closing conference to discuss their investigative findings with representatives of each of the contractors involved. Typically, OSHA conducts a separate closing conference for each contractor, which is entitled to have one or more management representatives present, such as the project manager, a safety director, and/or the company attorney, if desired. If the workers of a contractor are members of a union, OSHA will provide an authorized employee representative from the union the opportunity to participate in the closing conference.

During the closing conference, the compliance officers typically recite the OSHA standards they believe the contractor violated, and ask the contractor how much time it will need to abate, or fix, the alleged violations. Usually, OSHA will not discuss the classification of the alleged violations (e.g., willful, serious) at a closing conference, or the amount of any proposed penalties. Rather, the compliance officers provide only their preliminary investigative findings. These findings will then be subject to review by their supervisor and the area director, who decide whether OSHA will cite the contractor, and if so, for what specific alleged violations.

2. Issuance of Citations

OSHA issues citations in the form of a document entitled “Citation and Notification of Penalty.” The citation lists the OSHA inspection number, the inspection site, and the address of the OSHA Area Office that conducted the investigation. A citation also alleges specific violations of OSHA standards, regulations, or of the statutory provision known as the “General Duty Clause,” which OSHA may cite when no standard applies to the particular facts and circumstances presented. The citation recites the core provisions of the regulatory or statutory provision that OSHA alleges the contractor violated, and also sets out a factual specification reciting the operative facts that are a component of the alleged violation.

(a) Classifications of Violations and Penalties

Citations are divided into sections of alleged violations called classifications. OSHA typically sets out one or more items of alleged violations together within a classification. For instance, Citation 1 can be classified as “serious” and contain a number of alleged violations or items, and Citation 2 can consist of a grouping of additional violations of another classification. Citations also include proposed penalties for each of the alleged violations. The following are the most common classifications of OSHA violations, along with the amounts of the penalties OSHA can assess for violations in each classification:

(1) Other than Serious

Alleged violations of lesser significance are classified as “other than serious,” which is sometimes referred to as “non-serious.” A violation is properly classified as other than serious when, if you assume an accident occurs as a result of the violation, it is unlikely that death or serious physical injury will result from the accident.[35] An example of a possible other than serious violation would be a minor violation that OSHA discovers during its investigation of a major jobsite accident that is unrelated to the accident, such as when OSHA cites a contractor for failing to ensure that a six-inch deep hole on a walking or working surface is covered during its investigation of a workplace fatality resulting from the collapse of a structure under construction. OSHA has the statutory authority to set the penalty for an other than serious violation at up to $7,000.[36] Typically, however, the agency sets the proposed penalty for this type of violation in the range of $0 - $1,500.

(2) Serious

If you assume that an accident occurs as a result of a violation, and it is likely that death or serious physical injury will result from that accident, the violation is properly classified as “serious.”[37] An example of a possible serious violation is when a contractor fails to ensure the use of fall protection when its employees are exposed to a fall of 10 feet. OSHA can assess a penalty for a serious violation at up to $7,000.[38] The agency computes a gravity-based penalty by weighing the gravity of the violation against the probability that an accident will result from the violation,[39] and can reduce the amount resulting from that computation by several statutory factors, such as the size of the contractor, the contractor’s good faith efforts (e.g. having a written and implemented safety and health program), and its past compliance history, in arriving at the amount of the final penalty to be proposed for the alleged violation.[40]

(3) Willful

When OSHA finds that a contractor has committed a violation with plain indifference to employee safety and health or with a conscious disregard for the requirements of an OSHA rule, and typically where the violation is connected with a major jobsite accident, the agency can classify the alleged violation as “willful.”[41] An example of a possible willful violation is when a contractor is fully aware that it must use a protective system to prevent a trench of more than five feet in depth from caving in, but makes the conscious decision to have its employees perform work in an unprotected 10-foot trench in order to save time and costs. Penalties for willful violations can be up to $70,000 each,[42] with separate penalties set out for similar egregious instances of the same violation.[43] For example, if a contractor willfully fails to provide a protective system, such as shoring, stepping, or a trench box, in several deep trenches at a jobsite, and a death occurs due to the lack of such a protective system, OSHA could propose a $70,000 penalty for each trench for which the contractor failed to provide the required protective system.

(4) Repeat

If OSHA finds that a contractor committed a violation that is substantially similar to a violation the contractor committed, and which became a final order within the prior three years, OSHA can classify the latest alleged violation as “repeat.”[44] A later violation of the same standard, even if it involves different facts, can be deemed to present a prima facie case of a repeat violation.[45] An example of a possible repeat violation is when a contractor fails to ensure that its employees wear steel-toe footwear, when one year before the contractor entered into a settlement agreement with OSHA affirming a violation for failing to require its employees to wear protective footwear on another jobsite. Repeat violations do not have to be connected with a major jobsite accident. Penalties for repeat violations can be up to $70,000 each,[46] but for a first repeat, OSHA will typically charge five times what the penalty would have been but for the repeat classification.[47]

Additionally, when OSHA has cited a contractor resulting in a final order, the rights to petition for review or appeal have expired, and the contractor has failed to abate the violation, OSHA can issue additional violations classified as “failure to abate,”[48] which can be accompanied by penalties of up to $7,000 per day in which such failure continues.[49]

(b) Abatement

When a citation alleges a violation of a particular OSHA standard or regulation, OSHA typically will not specify in the citation the steps the contractor must take in order to abate the alleged violation. The agency will, however, specify the time by which the violation must be corrected. On the other hand, for violations of the General Duty Clause, OSHA is required to specify one or more feasible means of abatement, although sometimes a contractor can select a means for abatement that differs from what OSHA sets out in the citation. Unless the compliance officers witness sufficient abatement action taken by a contractor, the contractor is generally required to submit a certification to OSHA that it has, in fact, abated the violation.[50]

3. Procedures for Evaluating and Contesting Citations

When an OSHA investigation of a major jobsite accident results in the agency issuing a citation to a contractor, typically the contractor will assign a qualified employee or its attorney to analyze the citation to determine whether it could be subject to a successful challenge. Part of that analysis involves evaluating whether OSHA will be able to meet its burden of proof to establish the violation by a preponderance of the evidence.[51]

a) Elements of an OSHA Violation

(1) Violation of an OSHA Standard

To establish a violation of an OSHA standard, typically OSHA must establish: (a) the cited standard applies; (b) the terms of the cited standard were violated; (c) there was employee exposure to the violative condition or work practice; and (d) the contractor had actual or constructive knowledge of the circumstances giving rise to the violation.[52] In certain jurisdictions, such as California, employer knowledge is an element of whether a violation is properly classified as serious, rather than being an element of OSHA’s prima facie case to establish the violation.[53]

(2) Violation of the General Duty Clause

To establish a violation of the General Duty Clause, OSHA must establish: (a) a condition or practice on the jobsite presented a hazard to employees; (b) the contractor or its industry recognized the hazard; (c) the hazard is likely to cause death or serious physical harm; and (d) feasible means exist to eliminate or materially reduce the hazard.[54] If a specific OSHA standard covers the violative situation, OSHA is preempted from issuing a citation alleging a violation of the General Duty Clause.[55]

(b) Defenses

Where OSHA successfully establishes a violation, a contractor can nevertheless be excused from the violation if it can carry its burden of proof in establishing an affirmative defense by a preponderance of the evidence.[56] The following are among the defenses to OSHA citations that may be available to contractors:

(1) Unpreventable Employee Misconduct

A contractor can establish this defense if it shows: it had a work rule designed to prevent the violation; the work rule was adequately communicated to its employees; adequate steps were taken to discover violations; and the rule was effectively enforced when violations were discovered.[57] This is among the most commonly used defenses to OSHA citations.

(2) Infeasibility

This defense rests upon a contractor establishing that literal compliance with the cited standard is infeasible, and an alternative protective measure was used or there was no feasible alternative measure.[58] In certain jurisdictions, again, such as California, the defense of infeasibility is generally not recognized.[59] As an alternative, in appropriate circumstances, a contractor can file a variance application to be excused from compliance with the standard, resulting in an administrative proceeding in which the contractor would need to establish that the measures it would take to protect its employees would provide the same level of protection as would compliance with the standard.[60]

(3) Greater Hazard

To establish this defense, a contractor must prove that the hazards of compliance with a particular standard are greater than the hazards of noncompliance, alternative means of protecting employees are unavailable, and a variance is either unavailable or inappropriate.[61] This defense is not often used, typically because of the difficulty in establishing the final element.

(4) Statute of Limitations

As mentioned above, a contractor establishes this defense if it shows that OSHA failed to issue citations within six months of learning that a violation occurred. In certain circumstances, OSHA can rebut this defense by establishing that the violation was continuing in nature,[62] or that the contractor concealed facts constituting the violation.[63]

(5) Vindictive Prosecution

To establish this defense, a contractor must show that OSHA issued the citation to punish the contractor for exercising its legal rights in the absence of justification for such issuance, and the circumstances demonstrate actual, or give rise to a presumption of, vindictiveness.[64] Alternatively, a contractor can seek to establish that exercise of its protected rights generated animus or a retaliatory motive on the part of OSHA, resulting in the issuance of a citation where such issuance otherwise was unreasonable. This defense can be difficult to prove as a legal matter, but given the right set of facts, interposing the defense can help a contractor achieve a favorable settlement of a citation.

(6) Multi-Employer

Traditionally, a contractor could establish the multi-employer defense by showing that it neither created nor controlled the conditions constituting the violation, and took realistic alternative measures to protect its employees who were exposed to the hazard addressed by the cited standard.[65] The utility of this defense was minimized, however, when OSHA issued its Multi-Employer Citation Policy, which sets out when OSHA will issue citations to “controlling,” “exposing,” “creating,” and “correcting” employers at multi-employer jobsites.[66] In a recent decision, the U.S. Occupational Safety and Health Review Commission (“Review Commission” or “Commission”) in turn limited the reach of the above-cited OSHA policy, holding that, at a multi-employer jobsite, OSHA is not empowered to cite a “controlling” general contractor who had no employees who were exposed to a violation.[67]

(c) Informal Conference

Generally, after the expiration of 15 working days from a contractor’s receipt of a citation, the citation becomes a “final order” that is subject to no further review unless the contractor files a notice of contest to challenge the citation.[68] The 15-working day period is jurisdictional in nature, so if the contractor misses the deadline for taking action with respect to the citation, it needs to have an extremely compelling explanation in order to be relieved from its mistake or neglect.[69] Upon receipt of a citation, the contractor can do the following: nothing, thereby accepting the terms of the citation; contest the citation, giving rise to a legal proceeding before the Review Commission; or participate in an informal conference, generally at the office of the OSHA official who issued the citation, in an effort to reach a resolution of the citation.

If the contractor opts to participate in an informal conference, representatives of the contractor, including its attorney if desired, and OSHA can agree to matters such as:

● the withdrawal of citation items

● changes in the classification of items

● reduction of the proposed penalties

● extension of abatement dates

● changes in the factual specifications of the citation items

● collateral promises, such as agreements to review and enhance the contractor’s safety program, retain a safety consultant, etc.

● other matters to be included in an Informal Settlement Agreement, such as a suitably robust non-admissions clause

Many contractors believe there is little, if any, down-side to participating in an OSHA informal conference. Successfully resolving a citation at an informal conference can obviate the need for litigation of a contested citation, thereby freeing up resources for other activities. Participating in an informal conference provides an opportunity for the contractor to underscore its commitment to jobsite safety and health with OSHA, which can help contribute to an ongoing positive relationship between the contractor and the agency. That can be of particular importance when the contractor is likely to engage in future work within the jurisdiction of the subject OSHA area office. On the other hand, a contractor may decide that participating in an informal conference is not worthwhile when it is unlikely that such a conference will result in a resolution of the citation through direct discussions with OSHA area office officials. In appropriate cases, however, it may be possible to interest higher ranking OSHA officials in weighing in on certain issues to be discussed in an informal conference, which can increase the likelihood that the conference will result in a successful resolution of the citation.

(d) Notice of Contest

When an informal conference has failed to result in an acceptable resolution of a citation, and the contractor is unwilling to accept the terms of the citation, or the contractor has decided that it wishes to forgo an informal conference and proceed directly to litigation, the contractor must file a notice of contest with the OSHA area director who issued the citation.[70] The notice of contest can be in the form of a simple letter stating that the contractor contests each citation item, the classification of the items, the proposed penalties, and the abatement dates and methods. It should also identify and provide contact information for the person who will serve as the representative of the contractor in the legal proceeding to result from the filing of the notice of contest. As stressed above, it is critical for the contractor to ensure that it files the notice of contest with the OSHA area director within 15 working days of the contractor’s receipt of the citation.

(e) Litigation of OSHA Citations

Once the OSHA area director has received a contractor’s notice of contest, OSHA forwards case documents to the Review Commission’s offices in Washington, D.C., where the case is docketed. Proceedings before the Review Commission are conducted pursuant to regulations issued by the Commission.[71] Attorneys from the Office of the Solicitor in the U.S. Department of Labor file a Complaint on behalf of the Secretary of Labor, and the representative of the contractor files an Answer responding to the allegations in the Complaint, pleading any applicable affirmative defenses. The parties then have the opportunity to engage in discovery, and the assigned administrative law judge schedules the case for a hearing. At any time during the course of proceedings before the Review Commission, the parties are free to engage in settlement discussions. A contractor is typically represented by an attorney in a contested case before the Review Commission, although representation by a lay person in these proceedings is permitted.[72]