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1. Introduction
2. Factors Considered in Determining Whether to Contest a Citation
1. Amount of Penalty
1. "Serious"
2. "Other Than Serious" Violation
3. "Repeat" Violation
4. "Willful" Violation
2. Cost of Abatement
3. Ability to Abate Cited Condition
4. Possibility of Reoccurrence
5. Possibility of Criminal Liability
1. Elements of Willfulness
2. Only Employer Liability
3. State Criminal Sanctions
6. Impact of Citation on Related Civil Litigation
7. Merits of Citation and/or Existence of Defenses
8. Cost of Defense
3. Overview of Contest Procedure
1. Time to Contest a Citation
2. Manner of Contesting - Notice of Contest
3. Review by the Commission
4. Judicial Review
4. Conclusion

Note: This article provides general information concerning the Occupational Safety and Health Act of 1970. It is not an exhaustive treatment of the statutory or case law authority on this subject. For a thorough legal analysis or particular factual circumstances, experienced legal counsel should be consulted.

The Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-78 ("Act"), imposes important obligations on virtually every employer whether large or small, union or nonunion. The stated purpose of the Act is "to assure so far as possible, every working man and woman in the nation a safe and healthful working conditions . . . ." 29 U.S.C. § 651(b). To accomplish this broad objective, the Act imposes a mandatory obligation on employers to seek out and eliminate certain workplace hazards and to comply with literally thousands of detailed and often technical safety and health standards. Compliance with these standards is enforced by the Occupational Safety and Health Administration ("OSHA"), an agency within the U.S. Department of Labor, through workplace inspections, the issuance of citations for violations, and monetary penalties. Appeals involving OSHA enforcement efforts are subject to review by the Occupational Safety and Health Review Commission ("Commission" or "OSHRC"). In limited instances, the Act also provides for criminal liability.

This paper discusses various factors that should be considered in determining whether a particular OSHA citation is a "big deal" and should, therefore, be contested and litigated or whether, instead, it is one that should simply be paid and forgotten. It should be noted, however, that in identifying and discussing the factors listed I am not suggesting that these are the only factors that should be considered in making such a decision. In any given case there may well be other more important factors, depending in part on the specific standard cited, that should properly be taken into account. Those discussed are simply the ones I have found to be important in my years of practice.

While there are times when the receipt of an OSHA citation poses serious problems for an employer there are also times when it can be handled in a routine manner by either paying the proposed penalty or by contesting the citation and penalty and then settling the matter. Different circumstances require different approaches. It is hoped that these comments will be useful in determining which of these two conditions an employer is facing.

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