WHAT TO DO, WHAT TO SAY AND HOW TO ACT WHEN OSHA COMES KNOCKING ON YOUR DOOR

PART 1: GENERAL OVERVIEW 1

1. INTRODUCTION 1
2. THE OCCUPATIONAL SAFETY AND HEALTH ACT 1
3. TYPES OF INSPECTIONS 1
   1. Imminent Danger Inspections 2
   2. Fatality/Catastrophe Investigation 2
   3. Complaint Inspections 2
   4. General Scheduled or Programmed Inspections 2
4. INSPECTION PROCEDURES 3
   1. Opening Conference 3
   2. Walk-Around, Document Review and Employee Interviews 4
      1. Walk-Around 4
      2. Document Review 5
      3. Employee Interviews 5
   3. Closing Conference 7
5. CITATIONS 7
   1. De Minimis 7
   2. Non-Serious or Other Than Serious Violations 8
   3. Serious Violation 8
   4. Willful Violations 8
   5. Repeat Violations 8
   6. Failure to Abate Citation 8
   7. Citation for Posting Violation 9
   8. New Requirements Relating to Abatement Procedures 9
   9. Contesting a Citation 9
6. DEFENSES TO CITATIONS 9
   1. Preemption 10
   2. Impossibility or Infeasibility 10
   3. Greater Hazard 10
   4. Employee Misconduct 10
   5. Procedural or Substantive Invalidity of the Cited Standard 10
   6. Statute of Limitations 11
   7. Multi-Employer Worksite 11
7. OSHA'S "EGREGIOUS" PENALTIES POLICY 11
   1. General Background 11
   2. Egregious Penalty Policy Applied to Recordkeeping Violations 12
   3. Egregious Penalty Policy Has Withstood Challenge 12
8. CRIMINAL PENALTIES FOR OSHA VIOLATIONS 13
   1. Criminal Provisions Under OSHA, 29 U.S.C. § 666 13
      1. Willful Violations Resulting in Death of Employee 13
      2. False Statements or Reports 13
      3. Advance Notice of Inspections 13
   2. Comprehensive Crime Control and Criminal Fine Collection Act of 1984, 18 U.S.C. § 3571 13

PART 2: SPECIFIC ISSUES 14

1. RECORDKEEPING REQUIREMENTS 14
   1. Proposed Changes to Recordkeeping Requirements 15
   2. Reportable Cases 15
   3. Illnesses 15
   4. Injuries 15
   5. Reporting Forms 15
   6. Notice-Posting Requirement 16
   7. Reporting Fatalities and Hospitalization 16

PART 3: LEGISLATIVE UPDATE 16

1. INTRODUCTION 16
2. NEW SECRETARY OF LABOR 17
3. UPDATE ON ADMINISTRATIVE INITIATIVES 17
   1. Targeting employers with serious safety and health problems 17
      1. Employer Surveys 17
      2. Cooperative Compliance Program 17
   2. OSHA/EPA Memorandum of Understanding 18
   3. Pending Legislation 18
      1. The Safety and Health Advancement Act of 1997 18
      2. The Job Safety Reform Bill 19

ENDNOTES 20

Abstract

In 1992, the Occupational Safety & Health Administration ("OSHA") proposed penalties of $116.1 million dollars against employers for alleged violations of the Occupational Safety and Health Act (the "Act"). Due to the revision of OSHA's penalty structure in 1990 and the egregious penalty formula now utilized by OSHA, penalties against a single employer in excess of $100,000 for violations of the Act are no longer extraordinary. Furthermore, in recent years, there has been increasing emphasis on the criminal liability of employers at the federal, state, and local levels. Finally, there has been aggressive activity in Congress during the last year to significantly reform the Act, something which has not been done in the 23-year history of the Act.

The increasing emphasis on workplace safety ensures that most employers will face some type of OSHA inspection, investigation or inquiry at some point in the life of their business. Moreover, the civil and criminal penalties which may result from an inspection can be substantial. An awareness of employers' rights, an understanding of the scope of OSHA's investigative authority and some smart planning can help employers effectively deal with the OSHA inspector and any subsequent litigation.

This article discusses the important stages of an OSHA inspection, and offers some practical advice on the alternatives employers have at each of those stages. The litigation of an OSHA case is outlined with special attention to some employer defenses to an OSHA citation. Finally, some recent legislative developments in OSHA law are highlighted.

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