OSHA

Inspections
and

Defenses
OSHA 2004
William M. Brewster, M.I.M., J.D.

OSHAGUIDE.COM

Table of Contents
INTRODUCTION.................................................................................................... 1 SPECIAL NOTICES FOR 2004.................................................................................. 2 NEW OSHA 300 FORM EFFECTIVE JANUARY 1, 2004 ............................................... 2 How to Use the Federal Manual.............................................................................. 3 OVERVIEW OF OSHA ............................................................................................ 5 SAFETY RULES APPLIED........................................................................................ 5 REQUESTING VARIANCES ...................................................................................... 6 ERGONOMIC RULES ............................................................................................. 6 EMPLOYER RIGHTS.............................................................................................. 8 CONSTITUTIONAL PROTECTIONS ............................................................................. 8 Probable cause for OSHA inspections .......................................................... 8 The scope of the inspection.......................................................................... 8 WARRANTS ........................................................................................................ 9 Factors For Seeking a Warrant .................................................................. 10 Factors Against Seeking a Warrant ............................................................ 10 Consent to Warrantless Inspections .......................................................... 10 Consent by Others ...................................................................................... 11 WARRANT EXCEPTIONS ....................................................................................... 11 An Emergency............................................................................................ 11 Open Fields & Outdoor Projects..................................................................12 Plain View & Surveillance...........................................................................12 CHALLENGING WARRANTS ...................................................................................13 INSPECTION PROCEDURE ...................................................................................13 PRESENTATION OF CREDENTIALS ..........................................................................13 OPENING CONFERENCE....................................................................................... 14 EMPLOYER REPRESENTATIVES RIGHT OF ACCOMPANIMENT ..................................... 14 THE WALK-THROUGH AND COLLECTING EVIDENCE ..................................................15 CLOSING CONFERENCE ....................................................................................... 16 ENHANCED ENFORCEMENT PROGRAM (EEP) ................................................... 16 EMPLOYER STRATEGIES .................................................................................... 18 BEFORE THE INSPECTION .................................................................................... 18 AT THE BEGINNING OF THE INSPECTION ................................................................ 19 DURING THE INSPECTION .................................................................................... 20 UPON RECEIVING THE CITATION ...........................................................................21 AT THE INFORMAL CONFERENCE ...........................................................................21 DISGRUNTLED EMPLOYEES, LABOR DISPUTES & RETALIATION ...................................21 THE CITATION .................................................................................................... 22 ABATEMENT ..................................................................................................... 23 PETITIONS FOR MODIFICATION OF ABATEMENT (PMAS) .......................................... 23 VIOLATIONS ....................................................................................................... 24 CLASSIFICATIONS .............................................................................................. 24 De Minimus .............................................................................................. 24 Other Than Serious ................................................................................... 25 Serious ..................................................................................................... 25 Repeat ...................................................................................................... 25 Failure to Abate......................................................................................... 26 Willful ...................................................................................................... 26 GENERAL DUTY CLAUSE VIOLATIONS .................................................................... 27 MULTI-EMPLOYER SITUATIONS............................................................................ 28 OSHAs Multi-Employer Citation Policy ..................................................... 28

CIVIL PENALTIES ............................................................................................... 29 PENALTY FACTORS ............................................................................................. 29 Gravity of the Violation ............................................................................. 30 Gravity-Based Penalty (GBP) ......................................................................31 PENALTY REDUCTIONS ........................................................................................31 Size of the Employer...................................................................................31 Good Faith .................................................................................................31 History of Previous Violations ................................................................... 32 CALCULATING REPEAT & WILLFUL PENALTIES ....................................................... 32 Penalties for Repeat Violations.................................................................. 32 Penalties for Willful Violations.................................................................. 33 COMBINING & GROUPING VIOLATIONS .................................................................. 33 Combined Violations................................................................................. 33 Grouped Violations ................................................................................... 34 EGREGIOUS PENALTIES ...................................................................................... 34 CRIMINAL PENALTIES........................................................................................ 37 Willful violation causes the death of an employee ...................................... 37 Giving advance notice of an inspection...................................................... 37 False statements, representations or certifications to OSHA ...................... 37 Forcibly Resisting or Assaulting a Compliance Officer ............................... 38 CONTESTING A CITATION .................................................................................. 38 FILING THE NOTICE OF CONTEST .......................................................................... 38 INFORMAL CONFERENCE ..................................................................................... 39 CASE REFERRAL & PLEADINGS ............................................................................. 39 HEARING PROCEDURE ........................................................................................ 40 E-Z TRIAL ........................................................................................................ 41 EMPLOYER DEFENSES ....................................................................................... 42 ATTACKING OSHAS BURDEN OF PROOF ............................................................... 42 Applicability of the Standard & Non-compliance ........................................ 42 Employee Exposure................................................................................... 43 Employer Knowledge ................................................................................ 44 PROCEDURAL DEFENSES ..................................................................................... 44 Defective Inspection.................................................................................. 44 Defective Citation...................................................................................... 46 AFFIRMATIVE DEFENSES ..................................................................................... 47 Employee Misconduct ............................................................................... 47 Infeasibility/Impossibility ......................................................................... 48 Greater Hazard ......................................................................................... 49 Preemption by Another Federal Agency ..................................................... 49 OSHA v. U.S. Military, USPS, & Others ................................................................. 49 LOSS PREVENTION SERVICES............................................................................ 50 SERVICES PROVIDED BY OSHA............................................................................ 50 OSHAs Consultation Service..................................................................... 50 VPP Program ............................................................................................ 50 SHARP Program ....................................................................................... 50 OSHAs Strategic Partnership Program (OSPP) ..........................................51 SERVICES PROVIDED BY OTHERS ...........................................................................51 Workers Compensation Carriers ...............................................................51 Independent Safety Consultants .................................................................51 GLOSSARY .......................................................................................................... 52

OSHAGUIDE.COM

OSHA
Inspections and Defenses
OSHA 2004

William M. Brewster, M.I.M., J.D.

INTRODUCTION
OSHA compliance is becoming more difficult and employers must devote more of their resources to deal with this issue. This problem is compounded by the fact that failure to comply can result in civil and sometimes criminal penalties. Accordingly, employers are demanding to know their rights and responsibilities. This concise manual discusses employer rights, strategies and defenses during federal OSHA inspections. It explains violations, penalties, citations and contains a glossary of common OSHA terms. This manual is updated every year to reflect changes in the law. The federal OSHA manual applies to most of the United States. It addresses the following jurisdictions regulated by federal OSHA including Puerto Rico and the Virgin Islands**:
Alabama Arkansas** Connecticut** Colorado Delaware Wash. D.C. Florida Georgia Illinois Idaho Kansas Louisiana Maine** Massachusetts Mississippi Missouri Montana** Nebraska New Hampshire New Jersey** New York** North Dakota Ohio Oklahoma** Pennsylvania Rhode Island South Dakota Texas West Virginia Wisconsin

** State and local government excluded

The author is William M. Brewster, MIM, JD. He is recognized as an authority on OSHA enforcement and as an attorney he has defended employers in some of the nations largest OSHA citations. He currently practices law in Oregon and Washington. His OSHA manuals have been featured on amazon.com and they are currently used as a resource across the United States and internationally.

Condor OSHA Guides

THIS MANUAL DOES NOT REPLACE LEGAL ADVICE. CONTACT AN ATTORNEY IN YOUR AREA IF YOU REQUIRE LEGAL ASSISTANCE. Copyright 2003

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SPECIAL NOTICES FOR 2004

New OSHA 300 Form Effective January 1, 2004
** The following information is quoted directly from OSHAs web site, www.osha.gov.

Employers must begin using the new OSHA 300 Form on January 1, 2004. The revised form includes various changes, including the addition of an occupational hearing loss column and more clear-cut formulas for calculating incidence rates. There is no longer a column for work-related injuries associated with ergonomic factors. However, OSHA directs that employers still record ergonomic-type injuries in either the injury or all other illness columns. You can go to www.osha.gov/recordkeeping/new-osha300form1-1-04.pdf for the new form. The new form has the date of the revision (rev. 1/2004) located on the form next to the form number. Injuries and illnesses for years prior to 2004 should continue to be recorded on the appropriate form for that year (i.e., 2003 and 2002 injuries and illnesses should be recorded on the forms for those years). The forms for 2003 and 2002 will continue to be available on OSHA's website at www.osha.gov/recordkeeping/OSHArecordkeepingforms.pdf Additionally, employers should use the old OSHA 300A Summary Form (without the hearing loss column) to post as required in February 2004. The new 300A form that includes the hearing loss column should be used to post in February 2005.

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How to Use the Federal Manual

Sources Cited
In the federal manual you will see several legislative and administrative sources cited: The OSH Act: You will see numerous citations to the federal Occupational Safety and Health (OSH) Act of 1970. In this manual we refer to the OSH Act as it is cited in the United States Code. Accordingly, references to the OSH Act are in this type of format, 29 U.S.C. 651. The Code of Federal Regulations (CFR): The specific safety standards regulating work practices and processes such as fall protection, machine guarding, are found in the Code of Federal Regulations (CFR). However, this manual is limited to OSHA inspections and, therefore, it is not concerned with the broad range of safety standards contained in the CFR. There are other books and manuals that address specific OSHA regulations about hazard communication, fall protection, etc. However, the CFR does contain other regulations that are pertinent to this manual such as the procedural rules of the Occupational Safety & Health Review Commission (OSHRC) concerning citation appeals. References to the CFR in this manual are in this type of format, 29 CFR 2200.37. The OSHA Field Inspection Reference Manual (FIRM): The OSHA Field Inspection Reference Manual (FIRM) is an internal agency manual produced by OSHA that instructs OSHA Compliance Officers in the proper conduct of inspections, assessment of penalties and issuance of citations. The OSHA FIRM is not law and, therefore, it has no value as a legal document binding OSHA. However, it does show how Compliance Officers address particular situations and calculate penalties. References to the OSHA FIRM in this manual are in this type of format, OSHA FIRM IV-B-1.

Court Cases Cited

In the federal manual you will also see cases cited from different courts. Some cases are more important than others. Some cases may not apply to your particular jurisdiction. Thus, it is very helpful for the reader to be able to recognize the different types of cases cited. At the first level, contested citations are heard by the Occupational Safety & Health Review Commission (OSHRC). An appeal of an OSHRC decision is heard by the U.S. Court of Appeals, which is divided into twelve federal circuits. An appeal of a federal circuit court decision is heard by the U.S. Supreme Court. Thus, the order is as follows in terms of importance: (1) U.S. Supreme Court Page 3

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decision; (2) federal circuit court decision of the U.S. Court of Appeals, and; (3) OSHRC decision. Citations to the different courts are in the format shown below. For quick recognition, the reader will want to focus on the enlarged portions indicated in bold. U.S. Supreme Court Decision Marshall v. Barlows Inc., 436 US 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). U.S. Court of Appeals Decision Stephenson Enterprises, Inc. v. Marshall, 578 F.2d 1021 (5th Cir. 1978). Occupational Safety & Health Review Commission (OSHRC) Decision Keco Industries, Inc., 7 OSHC 2048 (1979). Readers will benefit the most by knowing the number of their federal circuit of the U.S. Court of Appeals. There are twelve federal Circuit Courts and many cases are cited in this manual as coming from the 1st Cir., 5th Cir., etc. Remembering the number of your federal circuit is helpful because different federal courts sometimes offer conflicting opinions or have their own slightly different interpretation of the law. States NOT regulated by federal OSHA are omitted from the list:
1st Circuit Maine Massachusetts New Hampshire Puerto Rico Rhode Island 5th Circuit Louisiana Mississippi Texas 2nd Circuit Connecticut New York 3rd Circuit Delaware New Jersey Pennsylvania Virgin Islands 7th Circuit Illinois Wisconsin 4th Circuit West Virginia

6th Circuit Ohio

8th Circuit Arkansas Missouri Nebraska North Dakota South Dakota DC Circuit Wash. D.C.

9th Circuit Guam Idaho Montana

10th Circuit Colorado Kansas Oklahoma

11th Circuit Alabama Florida Georgia

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OVERVIEW OF OSHA
The federal Occupational and Safety and Health (OSH) Act was passed by Congress in 1970. See The Williams-Steiger Occupational Safety & Health Act of 1970; Public Law 91-596; 29 U.S.C. 651 et seq. The purpose of the OSH Act is to assure as far as possible, every working man and woman in the Nation safe and healthful working conditions . . .. 29 U.S.C. 651 (b). Employers are subject to civil and sometimes criminal penalties if they violate the OSH Act. The OSH Act is administered by the Occupational Safety and Health Agency of the U.S. Department of Labor. The agency is referred to as federal OSHA or, more commonly, OSHA. OSHA promulgates safety standards and enforces them. The Occupational Safety and Health Review Commission (OSHRC) is the independent body that adjudicates contested cases. If an employer disagrees with an OSHA citation it requests a hearing before the OSHRC. Congress left to the States the option of creating their own agency to enforce the OSH Act. About one half of the United States opted to be regulated by federal OSHA. The other States opted to create their own agency and are referred to as operating under a State Plan. A State Plan is authorized as long as the States regulations and enforcement are as effective as the protection afforded workers under the federal OSH Act. For example, California has a State Plan and it created its own agency, Cal/OSHA, which enforces safety regulations within that State. This manual applies to the States regulated by federal OSHA. (See Page 1 Introduction section for a list of those States.)

Safety Rules Applied

The United States Code (U.S.C.) is the body of law created by the United States Congress. The OSH Act is contained in U.S.C. Title 29, Chapter 15, Sections 651 to 678. The OSH Act granted authority to the Secretary of the U.S. Department of Labor to promulgate, modify, or revoke any occupational safety or health standard. 29 U.S.C. 655 (b). In this context, the Secretary is synonymous with the agency itself, OSHA. Thus, OSHA can create and adopt specific safety standards regulating work practices and processes such as fall protection, machine guarding, etc. Those standards are found in the Code of Federal Regulations (C.F.R.) and are referrenced by their federal CFR number (e.g. 29 CFR 1910.001). The standards are divided into four broad categories: 1. 2. 3. 4. General Industry Construction Maritime & Longshoring Agriculture 29 CFR Part 1910 29 CFR Part 1926 29 CFR Part 1915, 1917, 1918 29 CFR Part 1928

General industry standards found in 29 CFR 1910 apply to all employers unless a more specific standard in one of the other Parts applies. For example, a Page 5

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fall protection standard in Part 1926 (the Construction code) might be more applicable to a contractor than a fall protection standard in Part 1910 (the General Industry code). The standards can be viewed on the Internet at OSHAs web address: www.osha.gov/comp-links.html. OSHA does not create safety standards in a vacuum. Proposed rules are often based on general industry standards or research by recognized authorities such as the National Institute of Occupational Safety & Health (NIOSH). OSHA cannot adopt safety standards in secret. Proposed rules are subject to the due process notice and hearing requirements of the federal Administrative Procedures Act. 5 U.S.C. 551 et seq. OSHA must publish new rules in the Federal Register, allow interested parties to file written comments and hold public hearings. 29 U.S.C. 655 (b)(2)&(3). Proposed standards have sometimes been withdrawn or modified due to strong public opposition.

Requesting Variances
Upon the issuance of a new rule, if the employer foresees that it will be unable to comply, or that it will be unable to comply in time, the employer can apply to OSHA for a variance. 29 U.S.C. 655 (b)(6). A variance means that the employer is excused from complying with the specific health standard. There are three types of variances: A temporary variance may be granted where the employer establishes that it is unable to comply with a standard by its effective date because of the unavailability of technical personnel, the lack of needed materials or equipment, or because construction or alteration at a facility cannot be completed in time. 29 U.S.C. 655 (b)(6)(A)(i). A permanent variance may be granted if the employer demonstrates that the conditions, practices, operations, or processes it proposes to use will provide a place of employment as safe and healthful as compliance with the applicable standard would provide. 29 U.S.C. 655 (d). An experimental variance is a special type of variance granted to allow an employer to participate in an experiment approved by OSHA or NIOSH designed to demonstrate or validate new safety products or techniques. 29 U.S.C. 655 (b)(6)(C). OSHAs Office of Variance Determinations processes variance applications. While variance applications are pending employers can also request an interim order. An interim order grants to employers temporary authority to use alternative means of employee protection, other than compliance with the safety standard, until a final determination is made on the variance application. 29 CFR 1905.11 (c).

Ergonomic Rules
In the mid 1980s and early 1990s OSHA began to address ergonomic hazards in the auto and meat packing industries. Ergonomic hazards generally consist of work exposures that are not dangerous in themselves but, rather, Page 6

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increase the risk of injury over time. Lifting is not a dangerous activity in itself. However, repetitive lifting without proper technique or in a poorly designed work area increases the risk of injury. On November 23, 1999, OSHA published a proposed Ergonomics Program Standard in the Federal Register that would have required employers to implement a full-scale ergonomics program with the goal of reducing workrelated musculoskeletal disorders (MSDs). The proposed Ergonomics Program Standard was quite controversial. Many complained that the standard was vague with respect to distinguishing work-related MSDs from non-work related conditions. Critics also pointed out that there was some dispute in the medical community whether certain MSDs were truly work-related. An additional objection was that a single injury (e.g., a back strain) or an employee complaint could trigger the employers duty to implement a full-blown ergonomics program. Perhaps the chief complaint was that the Ergonomics Program Standard would have been very difficult and expensive to implement. The Ergonomics Program Standard, as then written, would have allowed employees to receive greater wage replacement benefits (90 100% of their regular wage) than they would have received under their own States workers compensation act (usually 66% of their regular wage). Employers would have paid the difference between workers compensation benefits and OSHA wage replacement benefits - possibly for as long as six months. Critics pointed out that this system gave employees significant financial incentive to complain of ergonomic hazards, whether or not such hazards existed, and little financial incentive to return to work. There was vigorous public debate concerning the proposed Ergonomics Program Standard during the comment and hearing process. Despite strong public opposition, OSHA issued the Ergonomics Program Standard on November 14, 2000, during President Clintons last couple of months in office. After the election of President Bush, the Senate and the House of Representatives voted to repeal the Ergonomics Program Standard under the Congressional Review Act. President Bush, shortly after assuming office, signed Senate Joint Resolution 6, which officially repealed the Ergonomics Program Standard. Despite the defeat of the Ergonomics Program Standard, OSHA is still deeply committed to protecting employees from perceived ergonomic hazards. OSHA is currently developing Ergonomic Guidelines to assist employers in recognizing and controlling ergonomic hazards. OSHA asserts that this is something entirely different because a guideline is different than a standard in that compliance with a guideline is voluntary. Nevertheless, OSHA will cite employers for ergonomic hazards under the General Duty Clause. [See Page 26 of this manual for a discussion of the General Duty Clause.] OSHA states that deviation from the ergonomic guidelines in itself will not result in a General Duty Clause violation. However, it will be interesting to see what criteria OSHA uses (if not the so-called voluntary guidelines) when employers are cited for ergonomic violations. Condor OSHA Guides will monitor this issue and any new developments will be discussed in the next edition of the federal manual. Page 7

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EMPLOYER RIGHTS
Constitutional Protections
Because OSHA can impose civil penalties and criminal sanctions the employer is afforded some protection against unauthorized searches under the Fourth Amendment to the United States Constitution. Marshall v. Barlows Inc., 436 US 307, 98 S.Ct. 1816, 56 L.Ed.2d 305 (1978). This means that OSHA must have probable cause to perform the inspection. Accordingly, the employer has the right to request a warrant to confirm that cause exists before OSHA can conduct an inspection. The employers constitutional protections kick-in when the employer requests a warrant provided that the employer has a reasonable expectation of privacy with respect to the area being searched.

Probable cause for OSHA inspections

An OSHA inspection is considered an administrative search rather than a criminal search. Thus, probable cause in the OSHA context is a bit different than it is in the criminal context even though criminal penalties can be imposed under the OSH Act in certain situations. Administrative searches and criminal searches are similar in the sense that specific evidence can provide probable cause for a search. In the criminal context, probable cause would be specific evidence of a criminal violation e.g., broken taillight (traffic infraction), citizen complaint (drug offense), etc. Similarly, in the OSHA context, probable cause would be specific evidence of an OSHA violation e.g., an accident, a complaint, observation of an employee working without fall protection, etc. Administrative searches and criminal searches are different in that, for administrative searches, probable cause can also be provided by reasonable legislative or administrative standards. Barlow's, supra. Thus, OSHA can develop a scheduled list of employers to be inspected as long as neutral standards are used e.g., by industry, by geographic location, etc. In contrast, the police cannot search private homes merely by developing a list of suspects whether or not neutral criteria are used to develop the list.

The scope of the inspection

To address the scope issue, it is important to know the two types of inspections performed by OSHA. They are referred to as programmed and unprogrammed inspections based on the type of probable cause involved. Programmed inspections are based on an inspection list, or schedule, developed by OSHA. Probable cause for programmed inspections is provided by the inspection list, or schedule. Programmed inspections are by nature comprehensive, or wall-to-wall.

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Unprogrammed inspections are so named because they are in response to incidents that cannot be scheduled (i.e. programmed) such as accidents, complaints, etc. Probable cause is provided by the specifics of the complaint, accident or observed violation. Theoretically, unprogrammed inspections should be limited to the subject matter providing probable cause e.g., the nature of the complaint, the cause of the accident, etc. However, the federal Circuit Courts have taken different approaches as to whether unprogrammed inspections should be limited in scope: 3rd Circuit: The inspection must bear an appropriate relationship to the alleged violations in the employee complaint. Marshall v. North American Car Co., 626 F.2d 320 (3rd Cir. 1980). 7th Circuit: The court endorsed a five-factor test to determine whether a wall-to-wall inspection was appropriate: (1) whether the employee complaint was motivated by a desire to harass the employer; (2) whether the nature of the employers business and its safety record qualified it for a general inspection; (3) whether a full inspection had been conducted within the preceding year; (4) whether the facility would be due for a programmed inspection in the near future; and (5) whether OSHAs limited resources were being utilized in the publics best interest. In re Cerro Copper Products Co., 752 F.2d 280 (7th Cir. 1985). 8th Circuit & 11th Circuit: OSHA must make some showing of why a broad warrant is appropriate in a particular case. Carondelet Coke Corp., 741 F.2d 172 (8th Cir. 1984); Donovan v. Sarasota Concrete Co., 693 F.2d 1061 (11th Cir. 1982). 9h Circuit: Wall-to-wall inspection permitted because limiting the inspection to the substance of the employee complaint would defeat the broad remedial purposes of the OSH Act. Hern Iron Works, Inc. v. Donovan, 670 F.2d 838 (9th Cir. 1982). If the inspection is unprogrammed (accident, complaint, etc.), employers should discuss with the Compliance Officer at the outset of the inspection whether it is going to be limited to the specifics of the incident or whether it is going to be a wall-to-wall inspection. The Compliance Officers response will assist the employer in determining whether to request a warrant.

Warrants
The employer has a constitutional right to request a warrant in order to confirm that probable cause exists for the inspection. Barlow's, supra. However, most administrative searches are conducted on the basis of consent. As the Supreme Court noted in Barlow's, the great majority of businessmen can be expected to consent to a search without a warrant. Indeed, the annual percentage of employers requesting warrants for OSHA inspections is usually quite small.

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Factors For Seeking a Warrant

1. To Keep an Unprogrammed Inspection Limited in Scope: If the inspection is unprogrammed (i.e., accident, complaint, etc.) the employer may want to request a warrant to avoid having OSHA transform the inspection into a broad wall-to-wall inspection. However, this is only a factor in jurisdictions that recognize such limitations. 2. To Avoid Waiving Constitutional Protections: The employer cannot invoke its constitutional protections without requesting a warrant. The right to a warrant must be asserted at the beginning of the inspection or it can be deemed waived. Valid consent to a warrantless inspection operates as a waiver of the Fourth Amendment right against unreasonable search and seizure. In more common vernacular, If you dont use it you lose it. 3. Because Good Will is not much of Factor: Many employers express a reasonable fear that requesting a warrant will only prejudice the OSHA Compliance Officer against them. Maintaining the Compliance Officers good will is something employers should always consider. However, there may be some situations where good will is not much of a consideration because circumstances dictate that the employers conduct will be heavily scrutinized whether goodwill exists or not.

Factors Against Seeking a Warrant

1. The Inspection is Programmed: A warrant cannot limit the scope of a programmed inspection (one based on a scheduling list) because programmed inspections are by nature wall-to-wall. 2. To Preserve Good Will: Many employers desire a good relationship with the Compliance Officer and fear that requesting a warrant will get the relationship off to a bad start. 3. Valid Consent or Warrant Exceptions Apply: A property owner, or general contractor in charge of multi-employer work site, can give valid consent to a warrantless inspection with respect to any on-site employers. Perhaps one of the many warrant exceptions also apply. (See next Section for further discussion.) 4. To Keep a Low Profile: The employer may decide to waive seeking a warrant if it has a good track record with OSHA and the inspection is relatively routine.

Consent to Warrantless Inspections

The right to a warrant must be asserted at the beginning of the inspection or it can be deemed waived. Valid consent operates as a waiver of the Fourth Amendment right against unreasonable search and seizure. Consent for Page 10

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administrative searches is less stringent than that required for criminal searches e.g. Miranda type warning not required. Consent to an administrative inspection need not be express and the failure to object to a known search constitutes consent. United States v. Thriftmart, Inc., 429 F.2d 1006 (9th Cir. 1970), cert. den. 400 U.S. 926, 91 S.Ct. 188, 27 L.Ed.2d 185 (1970). Other federal cases have also held that the Compliance Officer's mere announcement that he is there for an inspection, and the employer's acquiescence to the inspection, manifests consent. Stephenson Enterprises, Inc. v. Marshall, 578 F.2d 1021 (5th Cir. 1978); Stockwell Mfg. Co. v. Usery, 536 F.2d 1309 (1oth Cir. 1976); Lake Butler Apparel Co., v. Secretary of Labor, 519 F.2d 84 (5th Cir. 1975). Consent can be given by any competent management official. Thus, a plant manager can give valid consent. Stephenson Enterprises, Inc. v. Marshall, 578 F.2d 1021 (5th Cir. 1978). The authority to give valid consent can also extend down the management food chain. One federal Circuit Court held that valid consent was given by a foreman. Dorey Electric Co. v. OSHRC, 553 F.2d 357 (4th Cir. 1977). Consent is not valid if it is the result of threats, coercion or misrepresentation. United States v. Kramer Grocery Co., 418 F.2d 987 (8th Cir. 1969). The courts will look at the "totality of the circumstances" to determine whether consent was freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218 (1973).

Consent by Others
A property owner, or general contractor in charge of multi-employer work site, can consent to a warrantless inspection with respect to any on-site employers. J.L. Foti Construction Co. v. Donovan, 786 F2d 714 (6th Cir. 1986).

Warrant Exceptions
There are several situations where a full inspection can be performed without a warrant. Those situations generally cover areas where the employer has no Fourth Amendment protections because there is no reasonable expectation of privacy with respect to the area being searched. There are also some isolated situations where OSHA can initially enter the premises without a warrant to accomplish a specific purpose. Those situations generally cover instances when OSHA needs to preserve an accident scene or temporarily remedy a patently life-threatening hazard.

An Emergency
An administrative search without consent and without a warrant is permissible in the event of an emergency, which is generally defined as a threat to human life. Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967); See v. Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967). In the OSHA context, this rule has been applied where delay to get a warrant would Page 11

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increase the danger and consent could not be obtained. Michigan v. Tyler, 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978).

Open Fields & Outdoor Projects

The open fields exception holds that there is no privacy interest for activities conducted in places open to the public. Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). This exception often applies to construction activities conducted outdoors if the public has access to the work area. Some cases suggest that there could be a privacy interest on an outdoor construction project if the employer closed the work area to the public. Secretary of Labor v. Bast Hatfield Inc., 18 OHSC 1848 (1999); Secretary of Labor v. Globe Contractors, Inc., 17 OHSC 2165 (1996). For example, a contractor might be able to create a privacy interest by closing the site to the general public by means of barricades, fencing, signs or totally enclosing the area with tape marked Do Not Enter or similar language. The open fields exception also applies to indoor facilities open to the general public, such as commercial retail space. However, even in places open to the public such as a grocery store, there may be a privacy interest in areas not accessible to the general public such as the warehouse or loading dock so long as conditions would not permit a curious passerby to invade the private space. L.R. Willson & Sons, Inc., v. OSHRC, 134 F.2d 1235 (4th Cir. 1998); United States v. Head, 783 F.2d 1422 (9th Cir. 1986).

Plain View & Surveillance

The plain view exception may apply if hazards or safety violations are observable to the Compliance Officer from a position observable to the public. Thus, Compliance Officers can legally videotape roofing contractors working without fall protection from a vehicle parked on a public street. Secretary of Labor v. Latite Roofing & Sheet Metal Co., 19 OSHC 1287 (2000). In one case, violations were observed while looking through the window of an attorneys office with the attorneys consent. Marshall v. Western Waterproofing Co., 560 F. 2d 947 (8th Cir., 1978). The use of a telephoto lens that enhanced the Compliance Officers view has also been upheld. L.R. Willson & Sons, Inc., v. OSHRC, 134 F.2d 1235 (4th Cir. 1998). However, federal case law recognizes some constraints. The Compliance Officer must be lawfully positioned -- i.e., the Compliance Officer should not trespass on private property or within a closed work site to view the violation. Secretary of Labor v. Tri-State Steel Construction Inc., 15 OSHC 1903 (1992) citing Coolidge v. New Hampshire, 403 U.S. 443, 468 (1971) and Illinois v. Andreas, 463 U.S. 765, 771 (1983). The observance of the violation must also be inadvertent. Coolidge v. New Hampshire, supra; United States v. Marbury, 732 F.2d 390, 399 (5th Cir. 1984). Thus, the observance should not be the result of a pre-planned visit or stake-out of a closed work site when there is no probable cause that violations have occurred.

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Violations found in plain view during an otherwise legitimate inspection can be cited. Thus, while conducting an inspection to investigate a forklift accident, a Compliance Officer can cite a machine guarding violation in plain view. The plain view exception also covers information unrelated to the purpose of the inspection which is volunteered to OSHA during the course of the inspection. For example, the Compliance Officer may be asking a forklift driver about the forklift accident. However, the forklift driver begins talking about other unsafe practices including the employers lack of a hazard communication program. OSHA can then begin looking into hazard communication issues.

Challenging Warrants
The employer basically has three options if it wishes to challenge an OSHA inspection warrant: 1. One option is for the employer to refuse the inspection and seek to quash the warrant in civil court. If OSHA initiates a contempt proceeding against the employer, which is likely, the employer would then defend its refusal to comply with the warrant. This method is not favored because of the fines and costs associated with contempt proceedings. 2. Another option is to allow the inspection under protest and then seek to quash or modify the warrant in civil court. However, most jurisdictions have held that they lack jurisdiction to consider the matter until the employer has exhausted its administrative remedies with the Occupational Safety & Health Review Commission (OSHRC). 3. The most favored option is to allow the inspection under protest and then challenge the warrant in contest proceedings before the OSHRC. However, the employer must be prepared to wait until the contest proceeding goes to hearing which often can take quite some time. An alternative, or middle ground, to challenging a warrant is to seek a protective order with the goal of favorably modifying the scope of the inspection. This is viewed as less severe than challenging a warrant and also avoids the delay of waiting for the contest proceeding to go to hearing before the OSHRC.

INSPECTION PROCEDURE
Presentation of Credentials
Upon arrival, the Compliance Officer will present his or her credentials which usually consists of an official badge or OSHA identification card. In practice, the presentation of OSHA credentials is similar to a police officer flashing his badge to prove his identity. The purpose is somewhat similar. Page 13

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There have been cases of con men posing as Compliance Officers and soliciting bribes or protection money to prevent inspections. The OSH Act conditions an inspection upon the proper presentation of credentials to the owner, operator, or agent in charge of the workplace. 29 U.S.C. 657 (a). The owner or operator is usually easily identified. If neither is present, the Compliance Officer will ask for the agent in charge. This broad definition generally encompasses anyone with apparent authority at the work site. Dorey Electric Co. v. OSHRC, 553 F.2d 357 (4th Cir. 1977) (foreman was deemed agent in charge); Marshall v. C.F. & I. Steel Corp., 576 F.2d 809 (10th Cir. 1978) (most senior employee left at the site deemed agent in charge). If an agent in charge still cannot be readily identified, the Compliance Officer will make a reasonable attempt to contact a management official. However, the Compliance Officer will not delay the inspection an unreasonable length of time.

Opening Conference
After entry is granted, the Compliance Officer will conduct an opening conference explaining the purpose and methods of inspection. The Compliance Officer will also request employer records, ask whether there are any trade secrets that need to be protected and identify the participants to the inspection. There is some limited authority for the proposition that even if an employer consents to a warrantless inspection, the inspection still cannot exceed the scope of the employers consent. Marshall v. North American Car Co., 626 F.2d 320 (3rd Cir. 1980); Keco Industries, Inc., 7 OSHC 2048 (1979); Merchants Oil Inc., 8 OSHC 1162 (1979). Thus, even if the employer has consented to a warrantless inspection, it is a good practice during the opening conference for the employer to document the scope of its consent. If it is an unprogrammed inspection (i.e., in response to an accident, complaint, or observed violation) the employer should make it clear to the Compliance Officer that its consent to the inspection is predicated upon the inspection being limited to the specifics of the accident, complaint, etc. The employer should document in writing the scope of the inspection that it has authorized (i.e., the scope of its consent) and give a copy of this document to the Compliance Officer and keep another copy for its records.

Employer Representatives Right of Accompaniment

The OSH Act provides that an employer representative shall be given an opportunity to accompany the Compliance Officer during the inspection for the purpose of aiding such inspection. 29 U.S.C. 657 (e). An authorized employee representative shall also be given an opportunity to accompany the Compliance Officer during the inspection. Id. As with the agent in charge issue during the presentation of credentials, a foreman or leadperson can be deemed the employer representative for the purpose of conducting an inspection if no other management official is present. A critical point for the employer is to define the scope of those deemed to be the authorized employer representative prior to an inspection. The problem arises when the supervisors are absent and the Compliance Officer asks, Who is Page 14

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in charge while the supervisors are away? Any employee who steps forward is deemed an agent of the employer and becomes the employer representative for the purpose of the inspection. Accordingly, the employer should designate the authorized employer representatives before the inspection and instruct informal leadpersons to inform OSHA that they are NOT in charge of all or part of the place of employment when supervisors are absent. The above strategy will not prevent an inspection. The inspection can go forward without an employer representative as long as the Compliance Officer substantially complied with the duty to identify an employer representative and there was no prejudice to the employer by not having one present. The above strategy is to prevent non-supervisory personnel from holding themselves out to OSHA as an agent of the employer. An inspection without an employer representative present may be preferable to having an informal crew leader deemed the employer representative and make damaging admissions that would bind the employer.

The Walk-Through and Collecting Evidence

After completion of the opening conference, the Compliance Officer will conduct a tour of the business premises. This is referred to as a walk-through or walkaround. The Compliance Officer is authorized to conduct an inspection during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner. 29 U.S.C. 657 (a)(1). During the walkaround, the Compliance Officer will be attempting to identify safety code violations. The Compliance Officer has the right to take environmental samples and photographs. 29 CFR 1903.7 (b). This right probably also includes videotape as long as trade secrets are adequately protected. Many employers choose take their own photographs and videotape during the inspection. The purpose is to produce mitigating evidence to refute any damaging evidence collected by OSHA. Employers need to be aware, however, that this is a two-edged sword. Any evidence that employers collect may be used later by OSHA to prove a violation. Even so, some employers feel that it is worth the risk to produce their own record of the inspection. The employer can be cited for any information that it volunteers to the Compliance Officer. Therefore, the employer should be cooperative, but cautious, about the information it volunteers. If this is an unprogrammed inspection, the employer should limit the discussion to the specifics of the accident or the complaint. As noted, even during an unprogrammed inspection the Compliance Officer can cite the employer for any other violations in plain view. Therefore, it is important for the employer to limit the scope of the inspection as much as practicable. If the Compliance Officer is conducting an unprogrammed inspection, the employer should attempt to keep the inspection limited to the area of the accident or the area identified in the complaint. The Compliance Officer can interview employees in private outside the presence of an employer representative. 29 U.S.C. 657 (a)(2). However, the employer should schedule the employee interviews and designate a neutral area Page 15

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such as a lunchroom. This prevents the Compliance Officer from rambling around the facility without a management person present - remember the plain view problem. If the Compliance Officer objects, the employer should remind the Compliance Officer that pursuant to statute he is only authorized to conduct an inspection in a reasonable manner and that scheduled interviews in a nonproduction area reduces down time and is a reasonable limit. 29 U.S.C. 657 (a)(2).

Closing Conference
After the inspection is completed the Compliance Officer will hold a closing conference with the employer and employee representative. 29 CFR 1903.7 (e). At the closing conference, the Compliance Officer will inform the parties of the following: 1. Whether any violations were found and if a citation will be issued. 2. The requirements for abating any violations or requesting extensions of the correction date. 3. The employers duty to post the citation. 4. The employers right to contest the citation, penalties or correction dates. 5. The right to request an informal conference with OSHA. 6. That discrimination against employees is prohibited for exercising rights under the OSH Act.

ENHANCED ENFORCEMENT PROGRAM (EEP)

OSHAs Enhanced Enforcement Program (EEP) addresses employers who, despite OSHAs enforcement and outreach efforts, ignore their OSH Act obligations, thereby placing their employees at risk. In essence, employers who meet the criteria for a Priority Enforcement Case (PEC) come under more intense scrutiny by OSHA and face a greater likelihood of criminal sanctions. The EEP is not actually federal law. Rather, the EEP is an OSHA program which sets forth the procedures that OSHA Regional Administrators should follow in cases meeting the PEC criteria. The program is more fully discussed in an OSHA memorandum dated September 30, 2003, that can be found on OSHAs web site. PEC Criteria A Priority Enforcement Case, or PEC, is defined as any inspection that meets one or more of the following criteria: 1. A fatality inspection in which OSHA finds a high gravity serious (or willful or repeated) violation related to the death. If OSHA finds that a willful violation caused the death of an employee, the employer will also be considered for criminal referral under section 17(e) of the OSH Act.

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2. An inspection that results in three or more high gravity serious violations classified as willful or repeat violations. 3. An inspection that results in two failure-to-abate notices where the underlying violations were classified as high gravity serious. PEC Follow-up Inspections In PEC cases, a follow-up inspection will be conducted even if abatement of the cited violations has been verified. Inspections of Other Sites When circumstances warrant, OSHA will inspect other sites of the same company-wide employer to determine whether the compliance problems at the PEC site are indicative of a company-wide problem. Related establishments of the same employer will also be placed higher on OSHAs inspection priority list. If the employer is in construction, the EEP recommends that at least one other worksite be inspected. Company Headquarters Notification In PEC cases, OSHA will mail a copy of the citation and notification of penalty to the employers national headquarters. OSHA may also hold meetings with company officials or send letters of concern to the company president. Necessary information about the company will be disseminated through the OSHA intranet and e-mail. Using Settlement Terms to Ensure Compliance and Abatement In PEC cases, OSHA will often make greater use of settlement provisions to ensure future compliance. OSHA may consider including some or all of the following terms within the settlement agreement: 1. Requiring the employer to hire a consultant to develop a process to implement an effective safety and health program with management support in the facility; 2. Applying the agreement company-wide; 3. In construction (and where appropriate, in general industry), using settlement agreements to obtain from employers a list of other job sites; 4. Requiring the employer to submit to OSHA its Log of Occupational Injuries and Illnesses on a quarterly basis, and to consent to OSHA's conducting an inspection based on the report; 5. Requiring the employer to notify the Area Office of any serious injury or illness requiring medical attention and consenting to an inspection; and Page 17

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6. Obtaining employer consent to a court enforcement order mandating abatement. Section 11(b) Summary Enforcement Orders are sometimes used as an effective and speedier alternative to failure-to-abate notices.

EMPLOYER STRATEGIES
Before The Inspection
Download any applicable safety codes and regulations from the Internet at OSHAs Web address: www.osha.gov/comp-links.html. Most employers are required to develop and implement certain written safety programs (e.g. hazard communication). If you need help determining which programs or standards apply to you, contact your workers compensation carrier. Many carriers provide free loss prevention services. Your carriers Loss Control Consultant can assist you in developing and implementing the required safety programs. OSHA also has many free publications that can be downloaded off the Internet at the web address listed above. Finally, many private safety and health consultants are often listed in your local telephone directory. During any inspection, OSHA always has authority to examine mandatory records - e.g. OSHA 300 Log, OSHA Form 300A, OSHA 301 forms and/or workers compensation claim forms, etc. Keep these records up-to-date and in a central location for easy review by OSHA. Keep copies of any other written programs in a central location for easy review by OSHA. The inability to locate any required records and written programs makes a poor impression on the Compliance Officer. Adopt a company safety policy. Ensure that all employees read the policy (probably at orientation) and that they sign and date a check-off form stating that they have read and understand the rules. If any of the rules are violated, issue a written warning and place a copy in the employees personnel file and another copy in a separate safety file for review by OSHA. Periodically visit OSHAs website, and check if there are any proposed rules which will affect your industry. Monitor these proposed rules to determine if you need to implement any new programs/procedures or apply for a variance. OSHAs consultation service provides free, onsite assistance in developing and implementing effective workplace safety and health management systems. A comprehensive consultation includes a hazard survey of the worksite and an appraisal of all aspects to the employers existing safety and health program. Employers may also receive training and education services, as well as limited assistance away from the worksite. Consultation assistance is available to small employers (with fewer than 250 employees at a fixed site and no more than 500 corporatewide). No penalties are proposed or citations Page 18

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issued for hazards identified by the consultant. The employers only obligation is to correct all identified serious hazards within the agreed upon correction time frame. OSHA consultation assistance will not provide the employers name or workplace information to OSHA enforcement. [Quoted from OSHA Publication 3000 (Rev. 2002).] You may also consider applying for OSHAs VPP and SHARP programs. Participation in these programs can exempt the employer from some inspections. Consider adopting a written policy of requesting warrants for all OSHA inspections. This will assist you in tactfully requesting a warrant if the need arises. If possible, close any open work sites to the general public by means of barricades, fencing, signs or totally enclosing the area with tape marked Do Not Enter or similar language. Designate the authorized employer representatives for the purposes of OSHA inspections. Advise informal leadpersons and crew leaders that you do not want them to act as employer representatives during an inspection. Explain to them that they should inform OSHA, if asked, that they are NOT in charge of the worksite during their supervisors absence. On multi-employer worksites, if you are an employer, subcontractor or temporary employment agency which does not exercise control over the work site and your employees detect a hazard that you did not create, do the following: (1) make a reasonable effort, preferably in writing, to persuade the creating employer (the one that created the hazard) and the controlling employer (the one that controls the worksite) to correct the hazard, and (2) take alternative steps to protect your employees.

At the Beginning of the Inspection

Determine whether you want to waive your right to a warrant. A warrant is best utilized with unprogrammed inspections (accidents, complaints, etc.) to prevent OSHA from exceeding the scope of the inspection. A warrant has less value with respect to a programmed (scheduled) because they are by nature comprehensive inspections. A property owner, or general contractor in charge of multi-employer work site, can consent on your behalf to a warrantless inspection. Certain warrant exceptions may also apply. Even experienced attorneys find this complex. However, if you do not request a warrant you waive any constitutional protections. If you decide to consent to a warrantless inspection, document in writing the scope of the inspection that you have authorized. Give a copy of this document to the Compliance Officer and keep a copy for your records. Be ready to access any records related to your mandatory record keeping requirements - e.g. OSHA 300 Log, etc. If this is a programmed Page 19

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(comprehensive) inspection, be ready to access any other written programs e.g. hazard communication, lock-out/tag-out, etc.

During the Inspection

Determine the persons who will accompany the Compliance Officer during the inspection. This will certainly include the authorized employer representative. However, you may also want to include trained persons with technical expertise concerning the machinery or processes involved. You can be cited for any information you volunteer to the Compliance Officer. Therefore, be cooperative but cautious about the information you volunteer. If this an unprogrammed inspection, try and keep the discussion limited to the specifics of the accident or complaint. However, if this is a programmed (comprehensive) inspection, the Compliance Officer is authorized to inquire into any and all safety issues. Even during unprogrammed inspections the Compliance Officer can cite the employer for any violations in plain view. Accordingly, as much as practicable, try to make sure that the Compliance Officer confines the inspection to the area of the accident or the complaint. If the Compliance Officer requests to talk to employees in private, which is his right, the employer should schedule the interviews and designate a neutral (nonproduction) area such as a lunchroom. Have employees close their tool boxes and store broken equipment. Take your own pictures and videotape of the alleged violations. The Compliance Officer will rate the violation based upon the probability of the accident occurring and the potential severity of the injury that would be caused by the hazard. Accordingly, it is very important during the inspection to point out those factors which reduce the probability of an accident occurring - e.g., training received by the employees, few employees exposed, exposure limited in duration, limited access to the point of danger, other means of protection, etc. Correct as many violations as you can during the inspection. Request a copy of the investigation report at the closing conference. It explains the rationale behind the specific violations found and how the penalties were calculated. The investigation report often contains employee statements paraphrased in written notes by the Compliance Officer. Confirm with your employees whether the Compliance Officer accurately characterized their statements. Legal representation is especially advisable if your company has a poor history with OSHA, a problem with repeat violations, or the citation involves a serious injury or willful violation.

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Upon Receiving the Citation

THE EMPLOYER MUST FILE A WRITTEN NOTICE OF CONTEST WITHIN FIFTEEN (15) WORKING DAYS OF THE EMPLOYERS RECEIPT OF THE CITATION AND NOTIFICATION OF PENALTY. 29 U.S.C. 659 (a). The term working days excludes Saturdays, Sundays and federal holidays. 29 CFR 1903.21 (c). The Notice of Contest is submitted to the OSHA Area Director. The filing is timely if it is postmarked within the 15-day period. 29 CFR 1903.17 (a). Petitions for Modification of Abatement (PMAs) are used if the employer does not contest the citation but needs more time to correct the violations. 29 U.S.C. 659 (c). PMAs are filed with the OSHA Area Director. They must be filed before the close of the next working day following the date on which abatement was originally required. 29 CFR 1903.14 a (c); 29 CFR 2200.37 (c). Criminal penalties of $10,000 or six months imprisonment, or both, can be imposed for knowingly making any false statement, representation, or certification in any application, record, plan or other document required by the OSH Act. 29 U.S.C. 666 (g). Accordingly, exercise extreme caution when completing any documents concerning abatement certification.

At The Informal Conference

At the informal conference, OSHA is generally more interested in mitigating factual information than legal defenses. It is this type of information that will most likely result in violations being withdrawn or penalties being reduced. It is also a good strategy to request that broad general violations be reclassified as specific code violations. This is because a general violation is more subject to providing the foundation for a repeat violation. For example, if a specific program is involved (e.g. hazard communication) seek to have a general duty to train and supervise violation transformed into a more specific violation for failure to train and supervise under the hazard communication standard. If the informal conference goes poorly, there is no formal mediation under the OSH Act or the procedural rules of the OSHRC. However, the parties can sometimes accomplish much the same purpose by requesting a pre-hearing conference with the Administrative Law Judge. 29 CFR 2200.51 (b). The OSHRC encourages settlement at this level and the judge performing the prehearing conference (in contrast to OSHA) will be interested in your legal defenses.

Disgruntled Employees, Labor Disputes & Retaliation

If the complainant requested confidentiality, OSHA will not release the complainants identity. However, sometimes an employer obtains information that a disgruntled employee filed the complaint. Likewise, the complaint may come during the midst of a labor dispute. OSHA will perform an inspection in response to a complaint if they have reason to believe that it is valid. This is true Page 21

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even if the complainant possibly had other motives for filing the complaint. However, OSHAs Field Inspection Reference Manual (FIRM) cautions Compliance Officers during labor disputes to insure ensure as far as possible that the complaint reflects a good faith belief that a true hazard exists. OSHA FIRM II-A-2-g-(2). Accordingly, advise the Compliance Officer that the complaint may have been filed for improper motives if you have good reason to believe this is true. Finally, even if the complainant subsequently violates legitimate work rules, the employer will need to be cautious about taking any disciplinary action. It is an unlawful employment practice for an employer to discriminate or retaliate against an employee who files a complaint with OSHA. 29 U.S.C. 660 (c).

THE CITATION
If the Compliance Officer observes a safety violation or a health hazard, a citation will be issued setting dates of correction for each of the violations. A civil monetary penalty for each of the violations will also likely be assessed. The citation must be in writing and it must describe with particularity the nature of the violation as well as referencing the safety standards allegedly violated. 29 U.S.C. 658 (a). OSHA must issue the citation within six months following the occurrence of any violation. 29 U.S.C. 658 (c). The six-month period begins to run on the last day that employees had access to the zone of danger. A longstanding hazard can be cited as long as employees were exposed to the hazard in the six months preceding the citation. However, it is insufficient for the Compliance Officer merely to surmise that employees must have been exposed to the hazard. OSHA must prove exposure. Thus, in practice, the six-month period generally begins to run on the day that the Compliance Officer arrives and conducts the inspection and either observes employee exposure to the hazard or obtains information sufficient to show that actual exposure occurred. Employers should be aware that the six-month statute of limitations for citations does not apply to criminal violations of the OSH Act. Rather, the criminal statute of limitations applies which is usually the five-year statute of limitations for federal non-capital crimes. 18 U.S.C. 3238. The OSH Act requires that copies of the citation be posted near each place of a violation. 29 U.S.C. 658 (b). If employees are scattered it is sufficient to post the citation in a single location conspicuous enough to put all affected employees on notice such as a common place where employees report each day. 29 CFR 1903.16 (a). The citation must remain posted for three days or until the violation has been corrected, whichever is longer. 29 CFR 1903.16 (b). The employer can be assessed a maximum penalty of $7,000 for failure to post a citation. 29 U.S.C. 666 (i).

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Abatement
Abatement is the OSHA term for correcting the violation. The correction dates for each violation can be found on the face of the citation. Employers generally have a 15-day grace period before abatement must occur. This coincides with the employers 15-day period in which to file an appeal of the citation. Employers may be assessed penalties of up to $7,000 PER DAY for each day the violation is not corrected past the correction date. 29 U.S.C. 666 (d). If the citation is contested, abatement is placed on hold while the employer contests the citation. However, the employers notice of contest must be made in good faith and not solely for delay or avoidance of penalties. 29 U.S.C. 659 (b). If the citation is not contested, then the employer must abate the violations. OSHA now requires that the employer submit written Abatement Certification to the OSHA Area Director as proof of abatement. Criminal penalties of $10,000 or six months imprisonment, or both, can be imposed for knowingly making any false statement, representation, or certification in any application, record, plan or other document required by the OSH Act. 29 U.S.C. 666 (g). Thus, the employer should exercise extreme care when completing abatement certification documents.

Petitions for Modification of Abatement (PMAs)

Petitions for Modification of Abatement (PMAs) are used if the employer does not contest the citation but needs more time to correct the violations. 29 U.S.C. 659 (c). PMAs are filed with the OSHA Area Director. They must be filed before the close of the next working day following the date on which abatement was originally required. 29 CFR 1903.14 a (c); 29 CFR 2200.37 (c). A safer practice is to file the PMA before the abatement period expires. PMAs must contain the following information: 1. The steps and dates of all employer actions to achieve compliance within the abatement period. 2. The specific amount of additional time needed. 3. The reasons why the employer needs additional time e.g., unavailability of technical experts, lack of material or equipment, construction or alteration cannot be completed in time. 4. The interim steps being taken to protect the employees during the abatement period. 5. Certification that the PMA was posted 10 days in a conspicuous place sufficient to give all affected employees notice of the PMA. If there is no objection to the PMA by employees or authorized employee Page 23

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representatives, then OSHA has authority to rule on the PMA. If there is an objection to the PMA by employees, their authorized representatives or OSHA, then the Occupational Safety & Health Review Commission (OSHRC) will rule on the PMA.

VIOLATIONS
OSHA must prove the following elements by a preponderance of the evidence to establish a violation: (1) (2) (3) (4) The cited standard applies; The employer failed to comply with the cited standard; Employees were exposed or had access to the hazard, and; The employer knew, or with reasonable diligence should have known, of the hazardous condition.

D.A. Collins Construction Co. v. Secretary of Labor, 117 F.3d 691 (2d Cir. 1997); Dun-Par Engineered Form Co., 12 OSHC 1962 (1986); Astra Pharmaceutical Products, Inc., 9 OSHC 2126 (1981), affirmed in part 681 F.2d 69 (1st Cir. 1982).

Classifications
OSHA classifies violations into specific types.

De Minimus
A de minimus violation is one where a standard is technically violated but it has no direct or immediate relationship to safety or health. 29 U.S.C. 658 (a). No penalty is assessed because the violation is determined to be rather trivial. A technical violation occurred but no employees could be harmed by the violation. When the OSH Act was first established minor record keeping errors were felt to be de minimus. However, that is no longer the case due to flagrant record keeping violations by many employers. De minimus violations are now normally reserved for instances when: 1. No injury would result. In some jurisdictions this extends to cases where any injury would be trivial. 2. The possibility of injury is very remote. 3. The standard is technically violated but the employer provides equivalent or better protection than the standard. Secretary of Labor v. C.E. Wylie Construction Co., 19 OSHC 2060 (2002).

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Other Than Serious

An Other Than Serious Violation is a violation that will not result in death or serious physical harm. 29 U.S.C. 666 (k). An Other Than Serious Violation is more serious than a de minimus violation but less serious than a Serious Violation. The maximum penalty for an Other Than Serious violation is $7,000, but it is usually much less than that. 29 U.S.C. 666 (c).

Serious
As noted above, a Serious Violation is a violation where there is a substantial probability that death or serious physical harm could result. 29 U.S.C. 666 (k). Examples of serious physical harm are amputations, fractures, disabling burns, etc. The maximum penalty for a Serious Violation is $7,000. 29 U.S.C. 666 (b).

Repeat
The maximum penalty for a repeat violation is $70,000. 29 U.S.C. 666 (a). A Repeat Violation occurs if, at the time of the alleged repeated violation, there was a final order against the same employer for a substantially similar violation. Potlach Corp., 7 OHSC 1061 (1979). Thus, OSHA must show that the same employer was cited once before for the same or substantially similar violation. OSHA must also show that the previous citation became a final order. However, be aware that some courts have interpreted settlement agreements pertaining to prior violations as final orders. Modern Continental Construction Co. v. OSHRC, 305 F.3d 43 (1st Cir. 2002). Accordingly, employers should pay particular care to ensure that sufficiently clear language is contained in the settlement agreement to prevent settled violations as serving as the basis for repeat violations. Three-Year Time Limitation: OSHA will not consider the violation a repeat unless the citation is issued within three years of the final order of the previous citation OR within three years of the final abatement date of that previous citation, whichever is later. OSHA FIRM III-C-2-f-(3)-(a). Multifacility Employers: Separate facilities of the same employer can be considered for the purposes of issuing a repeat violation if the facilities are in the same OSHA Area Office jurisdiction. OSHA FIRM III-C-2-f-(4)-(c). This also applies to contractors and other employers with non-fixed worksites. Same or Substantially Similar Violation: Of course, a repeat violation can be established by showing that the same standard was violated. However, different standards can also result in a repeat violation if the hazard involved was substantially similar. Caterpillar, Inc. v. Herman, 154 F.3d 400 (7th Cir. 1998) (mechanical machine guarding and electronic eye both involved same pinchpoint hazard). Accordingly, the employer can best avoid repeat violations by showing that the prior citation involved different conditions or hazards. Secretary of Labor v. Otis Elevator Inc., 18 OSHC 2082 (2000). Page 25

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The employer may also avoid future repeat violations by having broad general violations reclassified as specific code violations. Violation of a broad standard is more apt to provide the basis for a subsequent repeat. If a specific standard is more applicable, the employer should request reclassification if it concedes that a violation occurred. This can be done at the informal conference level.

Failure to Abate
A Failure to Abate violation can be found for any violations not fully corrected by the dates ordered in the citation. Penalties of $7,000 per day can be imposed if an employer fails to correct a violation. 29 U.S.C. 666 (d). Failure to Abate versus Repeat Violation: The issue is whether or not the violative condition was brought into compliance following the initial inspection. Failure to abate exists if the violation was never corrected. It is a repeat violation if the condition was corrected following the initial inspection but subsequently developed again. OSHA FIRM III-C-2-f-(6); See also Alden Leeds, Inc. v. OSHRC, 298 F.3d 256 (3d Cir. 2002).

Willful
The most serious violation is a willful violation, which has a maximum penalty of $70,000 and a minimum penalty of $5,000. 29 U.S.C. 666 (a). A Willful Violation does not require malicious intent or an obstinate refusal to comply. A willful violation exists if the employer knowingly decided not to comply with the safety standard. Intercounty Construction Co., v. OSHRC, 522 F.2d 777 (4th Cir. 1975), cert. denied 423 U.S. 1072 (1976); Georgia Electric Co. v. Marshall, 595 F.2d 309 (5th Cir. 1979); National Engineering & Contracting Co., v. Herman, 181 F.3d 378 (6th Cir.) cert. denied 120 S.Ct. 578 (1999); National Steel & Shipbuilding Co. v. OSHRC, 607 F.2d 311 (9th Cir. 1979). However, an employers mere knowledge of a standard and subsequent violation of that standard is insufficient to prove a willful violation. Secretary of Labor v. SC Development Corp., 19 OSHC 1883 (2002). Other jurisdictions have defined a willful violation as one committed with intentional disregard or plain indifference to the requirements of the OSH Act. Caterpillar Inc., v. OSHRC, 122 F.3d 437 (7th Cir. 1997); Dakota Underground, Inc. v. Secretary of Labor, 200 F.3d 564 (8th Cir. 2000); Fluor Daniel v. OSHRC, 295 F.3d 1232 (11th Cir. 2002); Kaspar Wire Works, Inc. v. Secretary of Labor, 268 F.3d 1123 (D.C. Cir. 2001). Rebutting Willfulness: Employers can rebut a charge of willfulness by showing that they made good faith efforts to comply with requirements of the standard. Brock v. Morello Bros. Construction, Inc., 809 F.2d 161 (1st Cir. 1987); St. Joe Minerals Corp., v. OSHRC, 647 F.2d 840 (8th Cir. 1981). However, the Eleventh Circuit (i.e., the federal OSHA states of Alabama, Florida and Georgia) Page 26

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appears to have rejected a good faith defense for willful violations. Fluor Daniel v. OSHRC, 295 F.3d 1232 (11th Cir. 2002). Reasonable efforts at compliance have been held sufficient even though they are incomplete or not entirely effective. Empire-Detroit Steel v. OSHRC, 579 F.2d 378 (6th Cir. 1978); See also Caterpillar Inc., v. OSHRC, 122 F.3d 437 (7th Cir. 1997). Some cases have even held that the employers good faith interpretation of a safety standard, although incorrect, will defeat a showing of willfulness. United States v. Ladish Malting Co., 135 F.3d 484 (7th Cir. 1998); Secretary of Labor, v. MJP Construction Co., 19 OSHC 1638 (2001). A recent case has also If a willful violation causes the death of an employee, the employer may be liable for a fine of up to $10,000, six months in prison, or both. A second conviction is punishable by a fine of up to $20,000, imprisonment up to one year, or both. 29 U.S.C. 666 (e).

General Duty Clause Violations

Employers have a general duty under the OSH Act to protect their employees from recognized hazards and to provide them with a safe place of employment. This is known as the General Duty Clause which provides: Each employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. 29 U.S.C. 654 (a)(1). OSHA uses the general duty clause as a catch-all provision. OSHA will cite the employer for violations of the general duty clause when hazards exist that are not covered by specific standards. The legislative intent was to protect employees in hazardous situations for which standards had not yet been adopted. Some regulations indicate that employers should not be cited for general duty clause violations if hazards are addressed by more specific safety standards. 29 CFR 1910.5 (f). Older court decisions have held that a more specific safety standard can preempt the general duty clause. Usery v. Marquette Mfg. Co., 568 F.2d 902 (2d Cir. 1977). The more recent trend is for courts to hold that a general duty clause violation may exist, despite compliance with a specific standard, if the specific standard was inadequate to protect the employees. United Automobile Workers v. General Dynamics Land Systems Division, 815 F.2d 1570 (D.C. Cir. 1987). Some critics have argued that the General Duty Clause imposes strict liability on employers. However, the general duty clause is limited to recognized hazards. 29 U.S.C. 654 (a)(1). This applies to observable conditions that a reasonable person would deem hazardous. It also applies to Page 27

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conditions generally recognized as hazardous by the employers industry. Industry recognition is established by the common knowledge of safety experts who are familiar with the circumstances of the industry or the activity in question. National Realty & Construction Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973). The general duty clause is also limited to hazards that are likely to cause death or serious physical harm. 29 U.S.C. 654 (a)(1) [emphasis added]. This element stands for the proposition that the risk of serious physical harm must be foreseeable. Accordingly, even under the rather loose standard of the general duty clause, a violation may not exist if the hazard was unforeseeable or if an accident was the result of freakish or implausible circumstances. National Realty & Construction Co. v. OSHRC, supra.

Multi-Employer Situations
Who is responsible for enforcing safety regulations when the employee works for more than one employer? Who is responsible for enforcing safety regulations on a worksite with several employers? These are common questions for general contractors, subcontractors and employers utilizing employee leasing companies or temporary employment agencies.

OSHAs Multi-Employer Citation Policy

In 1999, OSHA Instruction CPL 2-0.124 clarified the agencys policy regarding multi-employer citations. Compliance Officers follow a two-step process to determine which employers are cited. 1. Step One: Determine for each employer which of the following four categories it comes under: (1) creating employer; (2) exposing employer; (3) correcting employer, or; (4) controlling employer. 2. Step Two: Determine whether the employer met the obligations imposed on its particular category. Creating Employer: A creating employer is one that causes a hazardous condition that violates a safety standard. It has an obligation not to create the hazard. Thus, by definition, a creating employer always fails to meet its obligation. Otherwise, it would not be called a creating employer. Creating employers can be cited if any employees at the site (including those of other employers) are exposed to the hazard. Jordan v. NUCOR, 295 F.3d 828 (8th Cir. 2002). Exposing Employer: An exposing employer is one whose own employees are exposed to the hazard. An exposing employers obligation depends on whether it has the authority to correct the hazard. Correction Authority: If the exposing employer has correction authority it can be cited if (1) it knew, or should have known of the hazard, and (2) it failed to take reasonable steps to protect its employees. No Correction Authority: If the exposing employer has no correction authority it must Page 28

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do each of the following to avoid being cited (1) ask the creating or controlling employer to correct the hazard (2) inform its employees of the hazard, and (3) take reasonable alternative protective measures. In imminent danger situations the exposing employer is expected to remove its employees from the job. Correcting Employer: A correcting employer is one that is engaged in a common undertaking, or on the same worksite, as the exposing employer and is responsible for correcting the hazard. For example, a correcting employer might be given responsibility for installing or maintaining safety equipment, such as guardrails. The correcting employer can be cited if it fails to exercise reasonable care in preventing, discovering and correcting the hazard. Controlling Employer: A controlling employer is one that has general supervisory authority over the worksite, including the power to correct safety and health hazards. Control can be established by contract or, in the absence of a specific contract provision, by exercising control on the worksite. A controlling employer can be cited if it fails to exercise reasonable care in preventing and detecting violations on the site. OSHA will look at several factors to determine if the controlling employer exercised reasonable care: (1) size of the project (2) nature of the work (3) the subcontractors safety history and expertise. For example, a controlling employer would need to perform more frequent inspections if the subcontractor had a poor safety history.

CIVIL PENALTIES
The amount of the civil penalty (monetary fine) depends in part on the classification of the violation because the classification determines the maximum penalty amount that can be assessed. The penalty limits for the different classifications are: Classification Other Than Serious Serious Repeat Willful Unabated Maximum $ 7,000 $ 7,000 $70,000 $70,000 ($5,000 min.) $ 7,000 per day OSH Act 29 U.S.C. 666 (c) 29 U.S.C. 666 (b) 29 U.S.C. 666 (a) 29 U.S.C. 666 (a) 29 U.S.C. 666 (d)

Penalty Factors
The OSH Act provides in 29 U.S.C. 666 (j) that penalties shall be assessed on the basis of four factors: 1. 2. 3. 4. The gravity of the violation, The size of the business, The good faith of the employer, and The employers history of previous violations. Page 29

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Gravity of the Violation

The Compliance Officer makes a Gravity Based Penalty (GBP) assessment to determine the amount of the penalty within the maximum and minimum range for each violation classification. The Compliance Officer determines the likely severity of harm if an accident were to occur and the probability of an accident occurring to arrive at the GBP. OSHA FIRM IV-C2-d. If the employer qualifies for penalty reductions they will be deducted from the GBP to arrive at a final penalty amount.

Severity: The severity assessment is based on the most serious injury

or illness which could reasonably be expected to result from the employees exposure. OSHA FIRM IV-C-2-e. The severity assessment is ranked High, Medium and Low: High Medium Death; permanently disabling injuries; chronic, irreversible injuries. Injuries and illnesses resulting in hospitalization or a variable but limited period of disability. Injuries and illnesses not requiring hospitalization and requiring only minor supportive treatment.

Low

Probability: The probability of an injury or illness occurring is categorized either as greater or lesser. OSHA FIRM IV-C-2-f-1.
Greater Lesser The likelihood of injury or illness is relatively high. The likelihood of injury or illness is relatively low.

The Compliance Officer will examine a variety of factors to determine whether the probability of injury is relatively high or low: ------number of employees exposed, frequency and duration of exposure, proximity of employees to the hazardous conditions, the use of personal protective equipment (PPE), whether the employer has a medical surveillance program, other pertinent working conditions.

Accordingly, it is very important during the inspection for the employer to point out those factors which reduce the probability of an accident occurring - e.g., few employees exposed, limited exposure during the day, limited access to the hazard, etc. Page 30

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Gravity-Based Penalty (GBP)

The Compliance Officer, after considering severity and probability factors, will arrive at an unadjusted gravity-based penalty (GBP). The Table below illustrates: GRAVITY-BASED PENALTY (GBP) TABLE unadjusted GBP OTHER THAN SERIOUS Probability No Severity Rating Lesser $0 Greater $1,000 -$7,000 SERIOUS Severity Rating Low Medium High $1,500 $2,000 $2,500 $2,500 $3,500 $5,000 -$7,000

Probability Lesser Greater

OSHA defines the gravity of a violation by the GBP. High Gravity Moderate Gravity Low Gravity GBP of $5,000 or greater GBP of $2,000 to $3,500 GBP of $1,500

Penalty Reductions
The OSH Act states that other penalty factors to consider are the size of the business, the good faith of the employer and the employers history of previous violations. 29 U.S.C. 666 (j). These other factors can result in adjustments (i.e., reductions) to the unadjusted gravity-based penalty (GBP). After deducting adjustments, the Compliance Officer then arrives at the final GBP.

Size of the Employer

OSHAs Field Inspection Reference Manual (FIRM) allows penalty reductions based on the size of the employer. OSHA FIRM IV-C-2-i-(5)-(a). Employees 1-25 26-100 101-250 251 or more Percent Reduction 60% 40% 20% None

Good Faith
Penalty reductions are also allowed based on the Compliance Officers determination of the employers good faith. OSHA FIRM IV-C-2-i-(5)-(b). The employer can receive a 25% reduction if it has implemented an Page 31

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efficient safety and health program or the safety program has deficiencies that are only incidental. The safety program must be written but in exceptional cases small employers (1-25 employees) can receive a 25% reduction if they have an efficient safety program which has not yet been reduced to writing. A 15% reduction is allowed if the employer has a written safety program that is overall effective but has more than just incidental deficiencies.

History of Previous Violations

A 10% reduction is allowed for employers who have not been cited by OSHA for any serious, willful or repeated violations in the past three years. OSHA FIRM IV-C-2-i-(5)-(c).

Calculating Repeat & Willful Penalties

Penalties for Repeat Violations
The penalty for a repeat violation is based on the unadjusted gravity-based penalty (GBP) of the underlying violation which is classified as Serious or Other Than Serious. OSHA FIRM IV-C-2-l-(1); See GBP Table at Page 30. Repeat violations are only eligible for a penalty adjustment based on size of the employer. Penalties for Repeat of a Serious Violation Smaller Employers (250 or less employees) 1st Repeat GBP x 2 Larger Employers (more than 250 employees) 1st 2nd Repeat Repeat GBP x GBP x 10 $70,000 max. 5

2nd Repeat GBP x 4 If more deterrence GBPx 10 needed $70,000 max.

For example, if the GBP for a Serious violation found during the current inspection is $3,500 (greater probability medium severity), the penalty for a smaller employer violating the same standard for the third time (2nd repeat) would be $14,000 ($3,500 GBP x 4). However, the OSHA Area Director still has the authority to multiply the GBP by 10 for a smaller employer if the increase is appropriate to achieve the necessary deterrent effect. Penalties for Repeat of an Other Than Serious Violation 1st Repeat 2nd Repeat 3rd Repeat $200 $500 $1,000

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Penalties for Willful Violations

OSHA calculates the penalty of a willful violation based upon the gravity of the underlying Serious violation. OSHA FIRM IV-C-2-m-(1); See GBP Table at Page 29. High Gravity Moderate Gravity Low Gravity GBP of $5,000 or greater GBP of $2,000 to $3,500 GBP of $1,500

However, size adjustments are at one-half of the normal amount. Good faith adjustments are not allowed at all. History adjustments are at the normal rate. Thus, for willful violations, the adjustments are as follows: Size Adjustment 1-25 employees 26-100 101-250 251 or more Good Faith Adjustment History Adjustment 30% 20% 10% None None 10%

For willful Serious violations, OSHA uses a $25,000 minimum penalty. For willful Other Than Serious violations, OSHA uses the $5,000 minimum penalty mandated by the OSH Act. In practice, Compliance Officers just refer to the following Table in the OSHA FIRM to determine the penalty for willful serious violations: Penalties to be Proposed for Willful Serious Violations Reduction Percentage 0% 10% 20% 30% 40% High $70,000 $63,000 $56,000 $49,000 $42,000 Moderate $55,000 $49,500 $44,000 $38,500 $33,000 Low $40,000 $36,000 $32,000 $28,000 $25,000 Gravity

Combining & Grouping Violations

Combined or grouped violations are normally considered as one violation and are assessed one gravity-based penalty (GBP). OSHA FIRM IV-C-2-h.

Combined Violations
Combining refers to OSHAs practice of taking multiple violations of a single standard having the same classification and combining it into one alleged citation item. OSHA FIRM III-C-5-a. However, each instance of the violation is still separately set out within that item of the citation. Id. A citation item is listed on the face of the citation for each violation. Each item on the citation has a corresponding penalty and correction date. For Page 33

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example, a single item on a citation might have the heading, Item 1-1 Failure to Bolt 29 CFR 1926.120 $2,500.00 Correct by 10/15/03. Below the heading will be a paragraph describing the conduct that resulted in the violation. When multiple violations of the same standard are combined into a single item, on the face of the citation there is one heading with a corresponding penalty and correction date. However, instead of one paragraph below the heading describing the violation, there will be multiple paragraphs one paragraph for each instance of the violation. The term instance is not defined but when read in context with other provisions of the OSHA FIRM using that term, it is evident that instance refers to each time a particular standard is violated. For example, if there are five separate violations of the same machine guarding standard (e.g., five separate machines left unguarded in the same manner), those five violations will be combined to form a single citation item. The item heading on the citation will cite the machine guarding standard only once and there will be one penalty and one correction date. Below the item heading will be five separate paragraphs, one for each of the five machines, detailing how the guarding standard was violated on that particular machine.

Grouped Violations
Grouping refers to OSHAs practice of lumping together violations of different standards into a single citation item if those violations all contribute to form a single hazard. OSHA FIRM III-C-5-b. In practice, grouping usually results in a higher gravity-based penalty (GBP) because it raises the level of probability and/or severity. For example, violations of different standards, if taken individually, might result in a low severity rating. However, if those violations all contribute to form a single hazard, the Compliance Officer can look at all of the violations collectively to determine the gravity of harm. Perhaps an analogy would be an airplane crash. The crash might be the result of many small mistakes. Individually, each of those mistakes would not result in an accident. However, those same mistakes taken together result in the airplanes crash. Thus, the gravity of harm is much greater when the mistakes are grouped together.

Egregious Penalties
In egregious cases, OSHA will fine the employer for each instance of the violation even though they apply to the same standard. OSHA FIRM IV-C-3; OSHA FIRM III-C-5-c-(4). The egregious penalty structure is also referred to as per-instance or violation-by-violation penalties. The egregious penalty structure is the mirror opposite of the penalty procedure for combined violations. In both cases the same safety standard is involved. However, combined violations result in a single citation item (and one penalty) whereas egregious violations result in multiple citation items thereby multiplying the number of penalties. Page 34

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For example, a willful violation of a particular standard might result in a penalty of $70,000. Multiple instances of violating the same standard, would normally be combined to form a single citation item with one penalty of $70,000. However, if the employers conduct is determined to be egregious, then each instance of the violation will result in a separate citation item. If there were eleven instances, then the total penalty arising from just that one standard would be $770,000 ($70,000 x 11). If willful penalties can be called OSHAs enforcement hammer then the egregious penalty structure is OSHAs sledge hammer. The factors that OSHA examines in determining whether egregious penalties should be applied are found in OSHA Instruction CPL 2.80, which provides that the violations under consideration must be willful AND at least one of the following other categories must also apply: 1. 2. 3. 4. 5. 6. The violations resulted in worker fatalities, a work-site catastrophe, or a large number of injuries or illnesses. The violations resulted in persistently high rates of worker injuries or illnesses. The employer has an extensive history of prior violations of the Act. The employer has intentionally disregarded its safety and health responsibilities. The employers conduct taken as a whole amounts to clear bad faith in the performance of his or her duties under the Act. The employer has committed a large number of violations so as to undermine significantly the effectiveness of any safety and health plan that might be in place.

The egregious penalty structure has come under increased scrutiny because of a relatively recent court decision by the Occupational Safety & Health Review Commission (OSHRC). Eric K. Ho, _____ OSHC _______ (Sept. 29, 2003). In the Ho decision, OSHA deemed the employers conduct egregious and assessed per-instance penalties on a per-employee basis which resulted in a citation totaling 1.5 million dollars. The underlying violations which served as the basis for the egregious penalties concerned: (1) the employers failure to provide respirators to eleven employees during a Class I asbestos job, and (2) failure to provide employee training under the asbestos standard to those same eleven employees.1 The OSHRC held that per-instance penalties on a per-employee basis
1

The cited standards were former 29 CFR 1926.1101(h)(1)(i) which pertained to the 11 alleged respirator violations and 29 CFR 1926.1101(k)(9)(i) and (k)(9)(viii) which pertained to the 11 alleged failure to train violations.

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were not appropriate in this particular case. There was no dispute that the employer was what one could only charitably call a bad actor. The OSHRC used even stronger language and stated: While we agree that Ho is one of the worst employers the Commission has had come before it, we cannot allow harsh facts to result in bad law a result which would clearly follow should we accept the Secretarys proposed penalties. The OSHRC ruled against per-employee penalties for the following reasons: 1. OSHA misinterpreted two of the lead cases discussing per-instance penalties, Caterpillar and Hartford Roofing.2 OSHA relied on both cases as supporting penalties on a per-employee basis. The OSHRC distinguished Caterpillar because it was one of the early per-instance cases assessing penalties for individual record keeping infractions. However, Caterpillar had nothing to do at all with tying per-instance penalties to the alleged egregious conduct of the employer. The employers conduct was not egregious and penalties were assessed perinstance not per-employee. Hartford Roofing was distinguished because it did not support penalties on a per-employee basis. In fact, Hartford Roofing held just the opposite and stated, where a single practice method or condition affects multiple employees, there can be only one violation of the standard. 2. The plain language of the respirator and employee training standards addressed employees as a group, not individually. Thus, the standards by their plain terms do not provide employers with fair notice that they may be penalized on a per-employee basis. The respirator standard merely stated that the employer shall provide respirators and ensure their use during all Class 1 asbestos jobs. One of the employee training standards was specifically addressed to employees as a group by stating that the employer should institute a training program for all employees. The other employee training standard did use the phrase each such employee. However, the OSHRC felt that this was a phrase of inclusiveness referring to all employees within the protected class. In determining whether the underlying standards were addressed to employees as a class or individually, the OSHRC was persuaded by the fact that a single act of abatement (providing respirators or providing a training program) would abate each of the eleven per-employee violations. 3. OSHA was unable to provide a consistent interpretation as to what constituted an individual instance of the violation. On the one hand, OSHA contended that separate violations occurred per employee. On the other hand, OSHA contended that separate violations occurred each time a worker began working without being trained or without
2

The full citations for both cases are Caterpillar, Inc., 15 OSHC 2153 (1993) and Hartford Roofing, Inc., 17 OSHC 1361 (1995).

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respiratory protection. The OSHRC felt that OSHAs interpretations conflicted because under the latter interpretation, OSHA could conceivably cite an employer on a per-employee, per-day basis. 4. In the absence of a consistently applied interpretation, employers are penalized differently for the same violative conduct merely because OSHA determines some of them to be bad actors. [Although not expressly stated by the Commission, it appears that the egregious policy, as currently applied, may run afoul of their sense of equal treatment under the law.] 5. OSHA was incorrect that the OSHRC must defer to the agencys decision to prosecute a case on a per-employee basis. The OSHRC noted that they were not bound by OSHAs proposed penalties. Quite the contrary. The fines are called Proposed Penalties because they are just that, proposals by OSHA. Congress expressly granted to the OSHRC the sole authority to determine penalties. On December 8, 2003, OSHA Administrator John Henshaw issued a statement announcing that OSHA was appealing the Ho decision to the Fifth Circuit, U.S. Court of Appeals. Condor OSHA Guides will discuss the Fifth Circuits decision when it becomes available and the reaction to that decision by the other federal circuit courts in future editions of this manual.

CRIMINAL PENALTIES
Under the OSH Act, employers are also subject to criminal penalties in certain situations. General Duty Clause violations are exempt from criminal liability. However, employers can be criminally prosecuted if they willfully violate a specific safety standard that causes the death of an employee. This is commonly referred to as a criminal willful violation. The OSH Act imposes criminal liability for each of the following:

Willful violation causes the death of an employee

If a willful violation causes the death of an employee, the employer may be liable for a fine of up to $10,000, six months in prison, or both. A second conviction is punishable by a fine of up to $20,000, imprisonment up to one year, or both. 29 U.S.C. 666 (e).

Giving advance notice of an inspection

Any person who gives advance notice of an inspection can be fined up to $1,000, imprisoned up to one year, or both. 29 U.S.C. 666 (f).

False statements, representations or certifications to OSHA

Criminal penalties of $10,000 or six months imprisonment, or both, can be imposed for knowingly making any false statement, Page 37

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representation, or certification in any application, record, plan or other document required by the OSH Act. 29 U.S.C. 666 (g).

Forcibly Resisting or Assaulting a Compliance Officer

Any person who forcibly resists or assaults Department of Labor personnel (e.g. OSHA Compliance Officers) can be fined up to $5,000, impris0ned up to three years, or both. The criminal sanctions can double if a dangerous weapon is used. Employers may also be subject to criminal liability under State statutes in addition to the criminal sanctions imposed under the OSH Act. In States with federally approved State Plans prosecutors enforce the criminal sanctions of those plans. In States which opted out of federal enforcement but do not have approved State Plans, liability is based on general criminal statutes. Criminal prosecution under the federal OSH Act is relatively rare but may increase as a result of OSHAs Enhanced Enforcement Program (EEP), described more fully in the prior section of the manual discussing EEPs. More common is criminal prosecution in States with State Plans. Some employers have argued that the criminal provisions of the OSH Act preempt State criminal statutes. However, courts have been rejecting such preemption arguments. See Illinois v. Chicago Magnet Wire Corp., 126 Ill.2d 356, 128 Ill. Dec. 517, 534 NE2d 962 (1989), reversed on other grounds 510 NE2d 1173 (Ill. App. 1987), cert. denied 493 US 809 (1989.

CONTESTING A CITATION
Filing the Notice of Contest
If the Compliance Officer observes safety or health violations, a citation will be issued setting dates of correction for each of the violations. A civil monetary penalty for each of the violations will also likely be assessed. The citation document is formally called a Citation and Notification of Penalty. The employer has the right to contest the citation if it disagrees with any of the following: (1) the alleged violations; (2) the abatement period, or; (3) the penalty amounts. The employer must give OSHA written notice that it disagrees with the citation. 29 CFR 1903.17 (a). The employers written notification is formally called a Notice of Contest. THE EMPLOYER MUST FILE A WRITTEN NOTICE OF CONTEST WITHIN FIFTEEN (15) WORKING DAYS OF THE EMPLOYERS RECEIPT OF THE CITATION AND NOTIFICATION OF PENALTY. 29 U.S.C. 659 (a) . The term working days excludes Saturdays, Sundays and federal holidays. 29 CFR 1903.21 (c). The Notice of Contest is submitted to the OSHA Area Director. The filing is timely if it is postmarked within the 15-day period. 29 CFR 1903.17 (a). Page 38

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Regular first-class mail is sufficient for filing. A better practice is to send the Notice of Contest by certified mail, return receipt requested. The written Notice of Contest does not need to be in any particular format. However, it must clearly identify the employers basis for filing the Notice of Contest i.e., whether the employer disagrees with the citation, abatement period, and/or proposed penalties. Failure to contest part of citation can be considered a waiver of any defenses to that portion of the citation. Thus, many employers favor broadly worded Notices of Contest. An example of broad, general contest language is, (Insert employer name) disagrees with and contests all alleged violations, citations, abatement dates and proposed penalties contained in the Citation and Notification of Proposed Penalties issued on (insert date) with respect to (insert facility) at (insert location.) WARNING: Many jurisdictions NOT regulated by federal OSHA, most notably California, do not accept broad contest language. If the citation is contested, abatement is placed on hold as long as employers notice of contest was made in good faith and not solely for delay or avoidance of penalties. 29 U.S.C. 659(b); 29 CFR 1903.18 (a). However, the employer is still required to abate the violations within the specified abatement period if it is only contesting the penalty amounts.

Informal Conference
After receiving the citation, the employer can request an informal conference with OSHA. The request should be submitted to the OSHA Area Director. 29 CFR 1903.15 (a), 1903.17 (a). The primary purpose of the informal conference is to discuss the alleged violations, proposed penalties, abatement dates, and to correct errors contained in the citation. However, most employers use the informal conference to negotiate an informal settlement agreement with OSHA. To facilitate settlement, employers will often present mitigating factual information that was not brought to light or focused on during the inspection. The informal conference will not stay the 15-working-day period in which to file a Notice of Contest. 29 CFR 1903.20. Thus, OSHA will hold the informal conference before the expiration of the 15working-day contest period. Even so, the employer must make sure that the Notice of Contest is timely filed even if settlement appears close. If the employer concedes that the violations occurred, it can use the informal conference to extend the abatement dates. Employers also will sometimes request that a general violation be reclassified as a specific violation. This is because a general violation is more subject to providing the foundation for a repeat violation.

Case Referral & Pleadings

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The OSHA Area Director within 15 days of receiving the Notice of Contest, will refer the case to the Occupational Safety Health & Review Commission (OSHRC). 29 CFR 2200.33. The OSHRC is an independent agency not affiliated with OSHA or the Department of Labor. It provides the initial forum for hearing contested cases under the OSH Act. Within 20 days of receiving the Notice of Contest, OSHA must file a complaint with the OSHRC. 29 CFR 2200.34 (a). The complaint sets forth the alleged violations and the rationale behind the abatement period and penalty amounts. 29 CFR 2200.34 (a)(2). The employer must file a written answer within 20 days of being served with OSHAs complaint. 29 CFR 2200.34 (b)(1). The employers answer is a plain statement denying all allegations in the complaint that it wishes to contest. 29 CFR 2200.34 (b)(2). The employers answer must also include any affirmative defenses that it wishes to raise- e.g., employee misconduct, greater hazard, etc. 29 CFR 2200.34 (b)(3). Failure to raise affirmative defenses in the answer may prevent the employer from relying on them at hearing unless the judge finds that the employer raised the defense as soon as practicable. 29 CFR 2200.34 (b)(4).

Hearing Procedure
The OSHRC assigns the case to an Administrative Law Judge (ALJ) who schedule and preside at the hearing. A few weeks following the answer, the ALJ will mail the parties a Notice of Hearing and Instructions. This document advises the parties of the hearing date, time and location. It also gives the parties instructions for the conduct of the hearing including the exchange of evidence, etc. The parties are entitled to 30 days advance notice of any hearing. 29 CFR 2200.60. There is no formal mediation under the OSH Act or the procedural rules of the OSHRC. However, the parties can sometimes accomplish much the same purpose by requesting a pre-hearing conference with the ALJ. 29 CFR 2200.51 (b). The OSHRC encourages settlement at this level. Employers and employees both have the right to participate in the hearing. Employers can represent themselves or be represented by attorneys. However, litigation of contested citations is becoming increasingly complex and hearings are conducted pursuant to the procedural rules set forth by the OSHRC. In the absence of OSHRC rules, the Federal Rules of Evidence apply. 29 U.S.C. 661 (f); 29 CFR 2200.2. Rulings concerning the admission of evidence and on submitted motions can seriously affect the outcome of a particular case. Attorneys represent OSHA. Accordingly, the employer might wish to have an attorney present to ensure a level playing field. Legal representation is especially advisable if the employer has a problem with repeat violations, or the citation involves a serious injury or willful violation. At hearing, OSHA has the burden of proving each of the elements of the violations listed in the citation. The employer has the burden of proving any Page 40

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affirmative defenses. The party with the burden of proof must establish the fact by a preponderance of evidence (more probable than not). Each of the parties can call witnesses, introduce evidence and conduct cross-examination. 29 CFR 2200.69. The parties can file written briefs with the ALJ and request transcripts of the hearing to facilitate preparation of the briefs. 29 CFR 2200.66. After considering the evidence, the ALJ makes a recommended decision that is transmitted to the parties. The ALJ can recommend that the citation items and/or penalties be affirmed, modified or eliminated. The ALJs recommended decision is also filed with the OSHRC. The OSHRC then has 30 days to adopt the ALJs decision or recommend review by the full Commission. 29 U.S.C. 661 (j); 29 CFR 2200.90. The ALJs decision either becomes a final order of the OSHRC (if it is adopted or no review is requested within 30 days) or the OSHRC conducts a review and issues it own decision which becomes a final order. The employer can also file a Petition for Discretionary Review by the OSHRC. 29 CFR 2200.91. The petition must be filed within 10 days of when the ALJs recommended decision was transmitted to the parties or 20 days after the ALJ has docketed his report. 29 CFR 2200.91 (b). The grounds for review are as follows: 1. The ALJ made findings of fact not supported by a preponderance of the evidence; 2. The ALJs decision is contrary to law; 3. A substantial question of law, policy or abuse of discretion is involved; or 4. A prejudicial error was committed. If the employer disagrees with the final order, it has 60 days to appeal the order to the appropriate U.S. Circuit Court of Appeals. 29 U.S.C. 660 (a).

E-Z Trial
In 1995, the OSHRC introduced the E-Z Trial procedure. 29 CFR 2200.200 (a). Its purpose is to provide a simpler and less expensive method of resolving less complex contested citations. To be eligible, cases must not involve complex factual or legal issues. Such cases generally include one or more of the following characteristics: 1. 2. 3. 4. 5. Relatively few citation items; Proposed penalty less than $10,000; No willful or repeat violations; No fatality; Hearing expected to take less than two days. Page 41

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E-Z Trial procedures are simplified in a number of ways: Complaints and answers are not required; Discovery is not permitted except as ordered by the ALJ; OSHA provides employer with documents early in the proceeding; Hearings are less formal; Federal Rules of Evidence do not apply; Oral arguments instead of written briefs; ALJ usually issues decision from the bench.

EMPLOYER DEFENSES
Attacking OSHAs Burden of Proof
The best defense is a weak offense . . . by OSHA. OSHA must prove the following elements by a preponderance of the evidence to establish a violation: 1. the cited standard applies; 2. the employer failed to comply with the cited standard; 3. employees were exposed or had access to the hazard, and; 4. the employer knew, or with reasonable diligence should have known, of the hazardous condition. Astra Pharmaceutical Products, Inc., 9 OSHC 2126 (1981), affirmed in part 681 F.2d 69 (1st Cir. 1982); D.A. Collins Construction Co. v. Secretary of Labor, 117 F.3d 691 (2d Cir. 1997); N & N Contractors, Inc., v. OSHRC, 255 F.3d 122 (4th Cir. 2001); R.P. Carbone Construction Co. v. OSHRC, 166 F.3d 815 (6th Cir. 1998). The above items are not defenses that the employer has to prove. Rather, they are elements that OSHA must prove to establish a violation. Thus, the most effective defense is to demonstrate that OSHA failed to produce sufficient evidence of one or more of the elements -- i.e., applicability of the standard, non-compliance with the standard, employee exposure to the hazard, and employer knowledge.

Applicability of the Standard & Non-compliance

Applicability of the Standard: OSHA must show that the cited standard is applicable. Precision Concrete Construcion, 19 OSHC 1404 (2001); Saugus Construction Corp., 19 OSHC 1431 (2001). There are times when the Compliance Officer may not properly understand the applicable rules. This is understandable because the rules are vast and cover several industries and innumerable processes. A Compliance Page 42

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Officer is by nature a generalist and cannot be expected to be an expert in all fields. Some Compliance Officers may have prior experience in private industry but not usually to the extent that their testimony would be considered expert testimony. On the other hand, the employer will often have several experts within its own company (e.g., licensed engineers, certified safety professionals, etc.). An employer expert can sometimes show that the cited standard did not apply. Essentially, this becomes a battle of the experts between the Compliance Officer and the employer expert. The Compliance Officer often has less comparative expertise than the employer expert in the employers particular field. After all, this is their business. Accordingly, the employer can often use expert testimony to its advantage. Non-compliance with the Standard: Employer experts can sometimes show that, even if the standard applied, it was not actually violated. For example, experts can demonstrate that the employer was actually in compliance given the employers particular set of circumstances. Likewise, experts can explain that the employer was in compliance given a correct interpretation of the standard. In other words, employer experts might show that OSHA interpreted the standard incorrectly. There are also situations where non-compliance is based on faulty factual information. OSHA generally relies on testimony from the Compliance Officer and the officers inspection report to establish its case. The inspection report often contains employee statements paraphrased in written notes by the Compliance Officer. However, the paraphrased statements might be inaccurate or incomplete. There have been instances where machines were misidentified, training dates omitted, etc. Accordingly, it is always recommended that the employer review the inspection report with the employees interviewed by OSHA to check for errors. Errors in the inspection report will sometimes establish that the employer was actually in compliance with the standard.

Employee Exposure
Traditionally, the issue has been whether OSHA must show actual employee exposure versus potential employee exposure. Early federal cases held that in order for employee exposure to exist there must be direct physical endangerment - i.e. evidence that the employee was actually in the zone of danger. The early cases often focused on employee access to the area and the boundaries of the danger zone. The more recent trend is that OSHA need only show that it is reasonably predictable that employees have contacted, or will contact, the zone of danger. N&N Contractors, Inc. v. OSHRC, 255 F.3d 122 (4th Cir. 2001); S&G Packaging Co., 19 OSHC 1503 (2001); D.T. Construction Co., 19 OHSC 1305 (2000). Thus, potential exposure is gaining more acceptance. Even so, lack of employee access still bears on whether exposure was reasonably predictable. Lack of employee exposure can sometimes be established by showing that employees did Page 43

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not have access to the area of the alleged hazard because it was protected by guards, barriers, warning signs, etc.

Employer Knowledge
OSHA must prove that the employer knew, or with the exercise of reasonable diligence should have known, of the violative condition. 29 U.S.C. 666 (k); 29 CFR 2200.73 (a). The employer knowledge requirement does not refer to employer knowledge of the applicable safety codes. Rather, the issue is whether the employer had knowledge, or constructive knowledge, of the violative condition. N & N Contractors Inc., 18 OSHC 2121 (2000). An employer cannot defeat the knowledge requirement by being willfully ignorant of his surroundings. Accordingly, an employer will be presumed to have constructive knowledge if the condition could have been discovered with reasonable diligence. Ingram Plastering Co., 19 OSHC 2001 (2002). The constructive knowledge problem presents something of a Catch-22 for the employer. If he knew of the condition he had knowledge. If he did not know of the condition he may come across as uninvolved or exhibiting a failure to train and supervise. Thus, employer knowledge defenses generally only succeed if the lack of knowledge was reasonable. The lack of employer knowledge can sometimes be established if the employer (including supervisory staff) were unaware of the hazard. In this situation, the employer must show that it conducted adequate safety inspections but still failed to discover the violative condition. OSHA then has the burden of showing that the employers failure to discover the condition was due to a lack of reasonable diligence. Trinity Marine Nashville Inc., 19 OSHC 1015 (2000); Ragnar Benson Inc., 18 OSHC 1937 (1999). OSHAs Failure to Cite the Same Violation During Prior Inspections: Some employers have argued that OSHAs failure to cite the same violation during prior inspections amounted to tacit approval of the employers practice. The essence of this argument is that OSHAs failure to cite on prior occasions lulled the employer into believing that it was in compliance with OSHA standards. In other words, OSHA led the employer down the garden path by letting it believe that it was in compliance. The courts have been rejecting such arguments. Fluor Daniel v. OSHRC, 295 F.3d 1232 (11th Cir. 2002); See also Secretary of Labor v. S&G Packaging Co., 19 OSHC 1503 (2001).

Procedural Defenses
Defective Inspection
OSHA must follow certain procedures when it performs an inspection. It has been argued OSHAs failure to follow its own procedural rules when conducting an inspection should result in the dismissal of the entire citation or the exclusion of evidence. Procedural arguments usually fail unless OSHA did Page 44

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not substantially comply with procedural requirements and, further, OSHAs failure to comply prejudiced the employer. Improper Presentation of Credentials: The OSH Act conditions an inspection upon the proper presentation of credentials to the owner, operator, or agent in charge of the workplace. 29 U.S.C. 657 (a). Upon arrival, the Compliance Officer will present his or her credentials which usually consists of an official badge or OSHA identification card. In practice, the presentation of OSHA credentials is similar to a police officer flashing his badge to prove his identity. Some employers have argued that an improper inspection resulted if the Compliance Officer presented credentials to the wrong person. This issue most often arises in cases where the premises owner and/or senior management officials are absent from the workplace. The Compliance Officer then grabs a foreman and conducts the inspection anyway. OSHA contends that such inspections are permissible because the Compliance Officer presented credentials to the agent in charge of the workplace. 29 U.S.C. 657 (a). The courts tend to agree by holding that the term agent in charge of the workplace encompasses anyone with apparent authority at the work site. Dorey Electric Co. v. OSHRC, 553 F.2d 357 (4th Cir. 1977) (foreman was deemed agent in charge); Marshall v. C.F. & I. Steel Corp., 576 F.2d 809 (10th Cir. 1978) (most senior employee left at the site deemed agent in charge). A similar issue involves the late presentation of credentials after the beginning of the inspection. The OSHRC has held that, although the presentation occurred one hour after the inspection began, the Compliance Officer substantially complied with the credentials requirement. Accu-Namics, Inc., 1 OSHC 1751 (1974), Accu-Namics, Inc., v. OSHRC, 516 F.2d 828 (5th Cir. 1975) cert. denied 425 U.S. 903 (1976). Thus, an employer could conceivably argue that there was no substantial compliance if credentials were presented well after the inspection began. If no credentials were presented at all, the courts will examine whether this failure resulted in substantial prejudice to the employer. In order for prejudice to occur, the Fourth Amendment right to privacy must apply. Inspections are still proper, despite the failure to present credentials, because there is no right to privacy if the violations occurred in public or in plain view of the Compliance Officer. Accu-Namics, Inc., supra; Drum Construction Co., Inc., 18 OSHC 1927 (1999). [See this manuals prior discussion of privacy interests in the section Warrant Exceptions.] Impairing the Employers Walkaround Rights: The OSH Act provides that an employer representative shall be given an opportunity to accompany the Compliance Officer during the inspection for the purpose of aiding such inspection. 29 U.S.C. 657 (e). Early cases focused on whether the employers right of accompaniment, a.k.a. walkaround rights, were mandatory or optional. The courts never reached a clear consensus on this Page 45

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issue. Instead, the emphasis shifted to whether there was substantial compliance by OSHA and whether the employer was prejudiced. Prejudice is normally considered the employers opportunity to present mitigating factual information during the inspection. Presumably, prejudice would occur if the employer was unaware of the inspection and, therefore, unable to assert its walkaround rights and present mitigating information. However, the lack of employer prejudice appears to outweigh the Compliance Officers failure to substantially comply with inspection procedures. In one recent case, the Compliance Officer took photographs from the parking lot before presenting himself to the company office. The OSHRC rejected the employers argument that its walkaround rights were violated on the grounds that the employer was not prejudiced. Secretary of Labor v. C.E. Wylie Construction Co., 19 OSHC 2060 (2002). Apparently, there was no mitigating information that could explain away the photographs. One court also has held that there is no prejudice if the employer can present the same mitigating factual information at the hearing. Accu-Namics, Inc., 1 OSHC 1751 (1974), Accu-Namics, Inc., v. OSHRC, 516 F.2d 828 (5th Cir. 1975) cert. denied 425 U.S. 903 (1976). There also would be no prejudice if the employer affirmatively waived its walkaround rights by declining to participate in the inspection. Likewise, there would be no prejudice if the employer constructively waived its walkaround rights. A constructive waiver would occur if the employer was aware of the inspection but refused to cooperate or participate in the inspection. Marshall v. Western Waterproofing Co., 560 F.2d 947 (8th Cir. 1977); Chicago Bridge & Iron Co. v. OSHRC, 535 F.2d 371 (7th Cir. 1976). On the other hand, the cases also suggest that the employer would be prejudiced if OSHA refused the employers request to participate in the inspection. Even so, the employer would be unlikely to prevail if OSHAs refusal was based on lack of cooperation or obstruction of the inspection.

Defective Citation
Late Citation Statute of Limitations: A citation cannot be issued more than six months following the occurrence of any violation. 29 U.S.C. 658 (c). Accordingly, a longstanding violation can be cited as long as employees were exposed to the hazard in the six months preceding the citation. Conversely, a citation could be untimely if OSHA failed to produce evidence that the standard was violated in the six-month period prior to the citation date. General Electric Co. v. OSHRC, 540 F.2d 67 (2nd Cir. 1976). For example it may be the case that, even though a hazard existed, employees did not have access to the hazard during the six-month period. It appears that the most common method of computing the six-month period is to count forward from the date of the inspection. Thus, a citation would be untimely if OSHA failed to produce evidence that the standard was violated in the six-month period between the inspection and the citation. Thomas A. Galante & Sons, Inc., 7 OSHC 2232 (1979). It is insufficient for the Compliance Officer merely to surmise that employees were probably exposed to the hazard. Id. In practice, the six-month period generally begins to run on the day that the Page 46

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Compliance Officer arrives and conducts the inspection and either observes employee exposure to the hazard or obtains information sufficient to show that exposure occurred. Employers should be aware that the six-month statute of limitations for citations does not apply to criminal violations of the OSH Act. Rather, the criminal statute of limitations applies which is usually the five-year statute of limitations for federal non-capital crimes. 18 U.S.C. 3238. Lack of Particularity Citation Too Vague: The citation must describe with particularity the nature of the violation, including a reference to the provision of the Act, standard, rule, regulation, or order alleged to have been violated. 29 U.S.C. 658 (a). In short, the citation must reference the safety standard and describe how the standard was violated. This satisfies the due process requirement that the employer have fair notice of the alleged violations so that it can prepare an adequate defense. L.E. Meyers Co., 3 OSHC 1026 (1975). The employer must show prejudice to assert the lack of particularity defense. In this situation, prejudice would mean that the citation was too vague and, therefore, hampered the employers ability to prepare a defense. Brock v. Dow Chemical U.S.A., 801 F.2d 926 (7th Cir. 1986); L & B Products Corp., 18 OSHC 1323 (1998). Citing the standard and providing a description of the violation also provides the employer with sufficient information for abatement. In other words, the citation must describe the hazardous condition sufficiently enough to put the employer on notice of what must be corrected. Alden Leeds, Inc., v. OSHRC, 298 F.3d 256 (3d Cir. 2002). Similarly, an employer also might be able to argue lack of particularity in the original citation in a subsequent citation for failure to abate. See Marshall v. B.W. Harrison Lumber Co., 569 F.2d 1303 (5th Cir. 1978).

Affirmative Defenses
An Affirmative Defense means that the employer has the burden of proof. Accordingly, the employer has the burden of proving the following affirmative defenses: 1. 2. 3. 4. The violation is the result of employee misconduct; Implementing the safety standard is not feasible; Compliance increases the hazard, and; More specific safety standards apply.

Employee Misconduct
The most frequently used and, perhaps, the strongest affirmative defense is Employee Misconduct. This defense also goes by several other names such as Unpreventable Employee Misconduct, Isolated Incident Defense, etc. The Page 47

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essence of this affirmative defense is that the employee violated company safety policies and that such conduct was not preventable. To establish an employee misconduct defense, the employer must prove: (1) it had work rules designed to prevent such conduct, (2) the work rules were effectively communicated to the employees, (3) the employer took steps to discover violations of the work rules, and (4) the work rules were adequately enforced when they were violated. P. Gioioso & Sons, Inc. v. OSHRC, 115 F.3d 100 (1st Cir. 1997); General Dynamics Corp. v. OSHRC, 599 F.2d 453 (1st Cir. 1979); D.A. Collins Construction Co. v. Secretary of Labor, 117 F.3d 691 (2nd Cir. 1997); CMC Electric, Inc., v. OSHA, 221 F.3d 861 (6th Cir. 2000); Raytheon Constructors, Inc., 19 OSHC 1311 (2000); Pride Oil Well Serv., 15 OSHC 1809 (1992); Jensen Construction Co., 7 OSHC 1477 (1979). In practice, this means that the employers safety program goes on trial. It is not enough that the employer has a safety program written on paper. There must be some evidence that the employer actually enforced the safety program when it was violated. Supervisor Misconduct: A supervisors misconduct will very rarely shield the employer from safety violations. There are two reasons for this. The first reason is that supervisor misconduct can be evidence that the employers safety program was not effective or adequately enforced. Reynolds Inc., 19 OHSC 1653 (2001); Stevedoring Services of America, 18 OSHC 1815 (1999). The second reason is that the actions of the supervisor are often imputed to the employer. George Campbell Painting Corp., 18 OHSC 1929 (1999). Southern Soya Corp. of Leesville, 1 OSHC 1412 (1973). The net effect is that employers face greater liability for supervisory misconduct. As a result, some employers have argued that the disobedient supervisor was actually an employee in order to take advantage of the employee misconduct defense.

Infeasibility/Impossibility
This defense requires the employer to prove that compliance with the standard is not feasible. The essence of this defense is that compliance would make it functionally impossible or infeasible to perform the work and that alternative means of employee protection were either used or not available. E&R Erectors, Inc., v. Secretary of Labor, 107 F.3d 157 (3rd Cir. 1997); Brock v. DunPar Engineered Form Co., 843 F.2d 1135 (8th Cir. 1988). There are three types of infeasibility. Practical Infeasibility means that compliance would not be practical because it would be impossible to perform the work - e.g. cannot erect guards because of limited work space. Technological Infeasibility means that it is technologically impossible to make a machine or process comply with current standards. Economic Infeasibility means that the cost of compliance would be prohibitive. Infeasibility/impossibility is a tough burden for the employer to meet. The defense fails if compliance is possible. Similarly, mere inconvenience or added Page 48

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expense is not sufficient. Loomis Cabinet Co. v. OSHRC, 20 F.3d 938 (9th Cir. 1994).

Greater Hazard
This defense requires the employer to prove that compliance would be more hazardous than noncompliance. In addition to proving the greater hazard, the employer must establish that there are no alternative means of employee protection and that a variance application was inappropriate or rejected. Bancker Construction Corp. v. Reich, 31 F.3d 32 (2nd Cir. 1994); Caterpillar Inc. v. Herman, 131 F.3d 666 (7th Cir. 1997); Dole v. Williams Enterprises Inc., 876 F.2d 186 (D.C. Cir. 1989).

Preemption by Another Federal Agency

A citation may also be invalid because OSHA does not have jurisdiction over the employer. OSHA does not have jurisdiction where the federal government has maintained control over employee safety and conditions. 29 U.S.C. 653 (b)(1). In that case, the employer is subject to safety and health regulations promulgated by the other federal agency instead of OSHA. This is known as preemption. Even if preemption does not apply, employers may have a defense if they reasonably believed that other federal regulation applied. Diebold Inc. v. Marshall, 585 F.2d 1327 (6th Cir. 1978); Pennsuco Cement & Aggregates, Inc., 8 OSHC 1378 (1980);

OSHA v. U.S. Military, USPS, & Others

Early on, OSHA and several units of the federal government developed an understanding concerning those areas over which OSHA would have jurisdiction. These Memoranda of Understanding can be viewed on OSHAs website. However, despite these memoranda of understanding, the general trend has been for OSHA to assume more control over occupational safety and health. For example, OSHA now has jurisdiction over all military facilities in the state of New Mexico. OSHA even issued a citation to West Point the military academy for the U.S. Army. OSHA also has jurisdiction over the U.S. Postal Service pursuant to the Postal Employees Safety Enhancement Act of 1998. It is expected that OSHAs enforcement powers will continue to expand in relation to the federal government. The U.S. Supreme Court held that preemption only applies if the federal agencys standards address occupational safety and health and the federal regulations at issue address the same working conditions as the OSHA standards. Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235, 122 S.Ct. 738 (2002) (Coast Guard general marine safety regulations did not preempt OSHA standards). The court will also examine the degree to which the federal agency actually exercises its authority over safety and health. Thus, it appears that federal agency preemption only applies where federal agency standards and OSHA standards address the same conditions. In areas where no federal standards exist, OSHA can enforce its own safety standards. Page 49

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LOSS PREVENTION SERVICES

If the employer wishes to take some precautionary measures prior to an inspection, there are a number of services provided:

Services Provided by OSHA

* The following quoted information is taken directly from OSHA Publication 3000 (Rev. 2002).

OSHAs Consultation Service

OSHAs consultation service provides free, onsite assistance in developing and implementing effective workplace safety and health management systems. A comprehensive consultation includes a hazard survey of the worksite and an appraisal of all aspects to the employers existing safety and health program. Employers may also receive training and education services, as well as limited assistance away from the worksite. Consultation assistance is available to small employers (with fewer than 250 employees at a fixed site and no more than 500 corporatewide). No penalties are proposed or citations issued for hazards identified by the consultant. The employers only obligation is to correct all identified serious hazards within the agreed upon correction time frame. OSHA consultation assistance will not provide the employers name or workplace information to OSHA enforcement.

VPP Program
OSHAs Voluntary Protection Program (VPP) is basically a more extensive safety consultation. The initial on-site visit will last two to four days and evaluate the effectiveness of the employers programs. OSHA will offer ways to upgrade the employers programs and will make periodic visits to monitor the employers progress. The frequency of the periodic visits depends on the employers VPP level. Demonstration level participants are evaluated annually. Merit level participants are evaluated every 18 months. Star level participants are evaluated every 3 to 5 years. One of the advantages is that VPP participants are exempt from routine programmed inspections during the period of their participation. Of course, accidents, complaints, etc., will still be investigated in the usual manner.

SHARP Program
OSHAs Safety and Health Achievement Recognition Program (SHARP) is basically a more extensive long-term version of the VPP program. The program is more demanding but in exchange the employer is granted deferral from all programmed inspections for a period of 1 year initially, or 2 years upon renewal. It appears that the deferral from inspections under the SHARP program can be renewed on an annual basis whereas the exemption under the VPP program appears to be a one-time event just through the period of participation. Again, accidents, complaints, etc., will still be investigated in the usual manner. Page 50

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OSHAs Strategic Partnership Program (OSPP)

OSHA Strategic Partnerships are alliances among labor, management, and government to foster improvements in workplace safety and health. These partnerships are voluntary, cooperative relationships between OSHA, employers, employee representatives, and others such as trade unions, trade and professional associations, universities and other government agencies. OSPPs are the newest of OSHAs cooperative programs. There are two types of OSPPs: Comprehensive and Limited. Comprehensive OSPPs concentrate on establishing comprehensive safety programs at partnering worksites. Limited OSPPs focus on specific safety and health issues. Since OSPP membership is corporate, rather than individual, there is no exemption from inspections for partnering worksites. The benefit is combining resources and knowledge within the group to reduce injuries, lower workers compensation premiums, etc.

Services Provided by Others

Workers Compensation Carriers
In some States the employers workers compensation carrier is required to provide free loss prevention services. These services are implemented by the carriers Loss Control Consultant. Loss Control Consultants are a good resource and can assist the employer in developing and implementing the required safety programs. Again, in some States, this is at no cost to the employer. Loss Control Consultants should be contacted in the event of an inspection. They keep a log of their contact with the employer and such information can be useful if an inspection occurs.

Independent Safety Consultants

Independent safety consultants are also a good resource. They are often used in cases requiring more in-depth assistance than can be provided with workers compensation loss prevention services. They are also used in cases where the employer wishes to retain a high degree of control or in cases where trade secrets are a concern. Of course, this type of specialized help does not come free but it is very often well worth the cost.

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GLOSSARY
Abatement - The OSHA term for correction of the violation. After the citation, the employer must notify OSHA that the hazard has been corrected or abated. OSHA has the option of doing a follow-up inspection to assure that the hazard was corrected. Penalties for failure to abate (or nonabatement) can be as high as $7,000 per day for each day past the correction dates set forth in the citation. Abatement Certification - OSHA now requires that the employer submit written Abatement Certification to the OSHA Area Director as proof of abatement. Criminal penalties of $10,000 or six months imprisonment, or both, can be imposed for knowingly making any false statement, representation, or certification in any application, record, plan or other document required by the OSH Act. 29 U.S.C. 666 (g). Thus, the employer should exercise extreme care when completing abatement certification documents. Abatement Inspection - An inspection following the citation to verify abatement of the violations listed in the citation. Accident Investigation - An unprogrammed (i.e., unscheduled) inspection made to determine the cause of an accident. Administrative Law Judge (ALJ) - The Occupational Safety & Health Review Commission (OSHRC) official who initially decides a contested citation hearing. ALJ decisions are reviewed by OSHRC which either adopts the ALJs opinion or issues a decision of its own. Affirmative Defense - A defense in which the employer has the burden of proof. Agent of the Employer - The manager, superintendent, foreperson or other person in charge or control of all or part of the place of employment. This person can consent on the employers behalf to a warrantless inspection or be the employer representative during an inspection. Amended Citation - A citation changed by OSHA. Amendments are liberally granted. However, the employer could argue that it was prejudiced if the citation was amended shortly before the hearing and it alleged different violations or raised new legal issues. Amended Notice of Contest - A Notice of Contest that is amended by the employer, usually to assert an affirmative defense. This should be filed as soon as the employer becomes aware of an affirmative defense. Answer - The employer must file a written answer within 20 days of being served with OSHAs complaint. 29 CFR 2200.34 (b)(1). The employers answer is a plain statement denying all allegations in the complaint that it Page 52

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wishes to contest. 29 CFR 2200.34 (b)(2). The employers answer must also include any affirmative defenses that it wishes to raise- e.g., employee misconduct, greater hazard, etc. 29 CFR 2200.34 (b)(3). Failure to raise affirmative defenses in the answer may prevent the employer from relying on them at trial unless the judge finds that the employer raised the defense as soon as practicable. 29 CFR 2200.34 (b)(4). Appeal - Another term for contesting a citation. The employer must file the appeal letter (i.e. Notice of Contest) within 15 days of its receipt of the citation. Area Director The Director of an OSHA Area Office. An OSHA Area Office is located in most States. You can go to the OSHA Links page at www.oshaguide.com to obtain contact information for all OSHA Area Offices. Burden of Proof - The legal standard for weighing the evidence. In the case of a contested citation, the standard is the preponderance of the evidence (more probable than not). OSHA always has the burden of proof in establishing a violation. The employer has the burden of proof when it is asserting an affirmative defense. Circuit Court One of the terms used to refer to the United States Courts of Appeal. The term Circuit Court is sometimes used because the U.S. Courts of Appeal are divided into 12 federal circuits 1st Circuit, 2nd Circuit, etc. The circuit courts are the forum for contested citations on appeal from the Occupational Safety & Health Review Commission (OSHRC). Circuit court decisions that are appealed go to the U.S. Supreme Court. Citation - The document issued by OSHA after the inspection to cite violations. It is more formally called a Citation and Notification of Penalty. The citation will usually include penalty amounts and set correction dates for the violations. Civil Penalties - The monetary fines assessed by OSHA for safety violations. Closing Conference - The conference between the Compliance Officer and the employer conducted after the inspection process is completed. The Compliance Officer will advise the employer about the specifics of the citation and other related matters. Combined Violation - This refers to the OSHA practice of combining multiple violations of the same standard into a single violation. For example, seven machines in violation of the same machine-guarding standard would result in only one violation of that standard. Complaint - Information received by OSHA that a safety standard is being violated. Such information may, and usually does, result in an inspection. The complainants identity will be kept confidential if the complainant so requested. If the complainant did not request confidentiality, and it is Page 53

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disclosed that an employee made the complaint, the employer must remember that it is unlawful employment practice to discriminate against an employee for making a complaint. Complaint Inspection - An unprogrammed inspection made in response to a complaint. Compliance Officer (CSHO) - The OSHA employee who conducts the inspection, more formally called a Compliance Safety & Health Officer or CSHO. Congressional Federal Register (CFR) - OSHA can create and adopt specific safety standards regulating work practices and processes such as fall protection, machine guarding, etc. Those standards are found in the Congressional Federal Register (C.F.R.) and are referred to by their federal CFR number (e.g. 29 CFR 1910.001). Consultation Service - A free service provided by OSHA to employers below a certain size for the purposes of assessing work place hazards and to provide training and advice on how to eliminate such hazards. The consultation will not directly result in a citation or civil penalty. Contested Case - The term used to refer to the employers appeal, or contest, of the citation. Correction Order A seldom-used term to refer to a citation. This term is sometimes used because the citation requires abatement of the violations and contains correction dates for abatement. Court of Appeals - One of the terms used to refer to the United States Courts of Appeal. The term Circuit Court is also used because the U.S. Courts of Appeal are divided into 12 federal circuits 1st Circuit, 2nd Circuit, etc. The circuit courts are the forum for contested citations on appeal from the Occupational Safety & Health Review Commission (OSHRC). Circuit court decisions that are appealed go to the U.S. Supreme Court. Credentials - The Compliance Officers official OSHA identification card. It often bears a photograph of the Compliance Officer. The Compliance Officer must show his credentials to an owner, supervisor, or agent in charge before conducting the inspection. Criminal Penalties - Penalties resulting in imprisonment or criminal monetary fines under the Occupational Safety & Health Act. Several States also impose separate criminal penalties under State statutes addressing occupational safety and health. Defective Citation - A procedural defense available to the employer when the citation does not comply with statutory or administrative rule requirements. To prevail, the employer must usually show that OSHA failed to substantially comply with the regulation AND that OSHAs failure to comply prejudiced the employer. Page 54

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Defective Inspection - A procedural defense available to the employer when the inspection does not comply with statutory or administrative rule requirements. To prevail, the employer must usually show that OSHA failed to substantially comply with the regulation AND that OSHAs failure to comply prejudiced the employer. De Minimus Violation - A de minimus violation is one where a standard is technically violated but it has no direct or immediate relationship to safety or health. 29 U.S.C. 658 (a). No penalty is assessed because the violation is determined to be rather trivial. Due Process - The constitutional requirement that the government put citizens on notice of the specific requirements of a law before it imposes sanctions for violating that law. In the OSHA context, it means that an OSHA standard must be specific enough so that a reasonable person would be put on notice of its requirements. Similarly, a citation must be specific enough so that a reasonable person would know the manner in which the standards were allegedly violated. Egregious Penalty Structure - A penalty structure developed by OSHA to address extreme cases of willful violations. OSHA will examine several factors to determine whether a willful violation was also egregious. If a willful violation is deemed to be egregious then each instance of the violation can be cited separately. The net result is that the total penalty amount of the citation is significantly increased. Emphasis Inspection - A programmed comprehensive inspection triggered by a local or national Emphasis Program. Emphasis Program - Generally, an internal directive from federal OSHA stating that particular emphasis is going to be paid to an industry or practice because it is considered particularly hazardous. Employee - The broad category of persons afforded protection under the OSH Act. This category includes most private and public employees. Employee Misconduct Defense - An affirmative defense available to the employer. To establish an employee misconduct defense, the employer must prove: (1) it had work rules designed to prevent such conduct, (2) the work rules were effectively communicated to the employees, (3) the employer took steps to discover violations of the work rules, and (4) the work rules were adequately enforced when they were violated. . Employee Representative - A person designated by the employees to be their representative. The employee representative has the right to participate in the opening conference, the closing conference and the inspection. Employer - The broad category of persons subject to regulation under the OSH Act. Page 55

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Employer Representative - A person designated by the employer to be its representative when dealing with OSHA. It can also be the person in charge at the time of the inspection. (See Agent of the Employer above). The employer representative can request a warrant or consent to a warrantless inspection. The employer representative also has the right to be present at the opening conference, the closing conference and the inspection. E-Z Trial - In 1995, the OSHRC introduced the E-Z Trial procedure which is a simpler and less expensive method of resolving contested citations. To be eligible, cases must not involve complex factual or legal issues and the proposed penalty must be less than $10,000. E-Z Trial procedures are simplified in a number of ways: Complaints and answers are not required; Hearings are less formal; Federal Rules of Evidence do not apply; ALJ usually issues decision from the bench, etc. Fatality - A work accident resulting in an employees death. Field Inspection Reference Manual (FIRM) - OSHAs internal resource manual that instructs Compliance Officers on inspection procedures, probability and severity assessments, and other related matters. Field Notes - The term sometimes used by OSHA to describe the Compliance Officers inspection report or that portion of the inspection report containing the Compliance Officers handwritten notes. Fixed Place of Employment - An employer facility at one general location. IN some cases, a very long-term construction site could be considered a fixed place of employment. Follow-up Inspection Another term used for an abatement inspection which is an inspection following the citation to verify abatement of the violations listed in the citation. General Duty Clause - Employers have a general duty under the OSH Act to protect their employees from recognized hazards and to provide them with a safe place of employment. This is known as the General Duty Clause which provides: Each employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees. 29 U.S.C. 654 (a)(1). OSHA uses the general duty clause as a catch-all provision. OSHA will cite the employer for violations of the general duty clause when hazards exist that are not covered by specific standards. Gravity Based Penalty (GBP) - The Compliance Officer makes a Gravity Based Penalty (GBP) assessment to determine the amount of the penalty within the maximum and minimum range for each violation classification. The Compliance Officer determines the likely severity of harm if an accident were to occur and the probability of an accident occurring to arrive at the GBP. OSHA FIRM IV-C-2-d. If the employer qualifies for Page 56

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penalty reductions they will be deducted from the GBP to arrive at a final penalty amount. Greater Hazard Defense - An affirmative defense available to the employer. The employer must prove that compliance creates a greater hazard than noncompliance, that the employees were protected by alternative measures and that a variance application was futile or denied. Grouped Violation - This refers to OSHAs practice of grouping multiple violations of different standards that affect the same hazard into a single, more serious, violation. Hazard - A condition, practice or act that could result in an injury to illness to the employee. High Hazard Industry - Usually defined as an industry group, identified by SIC code, which has a lost workday incidence rate higher than the national average for all employers. OSHA puts high hazard industries near the top of the list for programmed inspections. Infeasibility/Impossibility Defense - An affirmative defense available to the employer. The employer must prove the compliance is virtually impossible due to practical, technological or economic considerations. The employer must also prove that there were no alternative means of employee protection available. Informal Conference - A conference between the employer and OSHA after the Notice of Contest is filed. The goal is to discuss the citation, resolve the issues and reach a settlement. Inspection - An official examination of the place of employment by the Compliance Officer to determine if the employer is in compliance with applicable occupational safety and health standards. Interim Order - A temporary order requested by the employer that will waive compliance with a specific standard while the employers variance request is being processed. Job Poster - This is also referred to as the OSHA Poster or the Safety Poster. It refers to the Safety and Health Protection on the Job poster which must be displayed in the workplace. It informs the employees of their rights under the Occupational Safety & Health (OSH) Act. Late Citation - A citation that is defective because it is issued more than six months following the occurrence of any violation. 29 U.S.C. 658 (c). Loss Control Consultant - The representative from the employers workers compensation carrier who assists the employer in developing and implementing safety programs and policies.

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Loss Prevention Services - The free consulting services provided by many workers compensation carriers. (See Loss Control Consultant above). Lost Workday Injury (LWDI) Rate - The statistic used by the Compliance Officer to determine employer trends in injuries and illnesses. The statistic is intended to reflect the number of lost workday injuries experienced by 100 full-time workers. The formula for calculating the employers LWDI Rate is: the sum of lost workday injuries (LWDIs) in the reference years x 200,000 divided by the sum of employee hours worked in the reference years. The number of LWDIs can be obtained from the employers OSHA 300 log. For an exact calculation the employer should contact its workers compensation carrier Loss Control Consultant. Non-abatement - The employers failure to correct the violations within the correction dates set forth in the citation. Penalties for failure to correct (or non-abatement) can be as high as $7,000 per day for each day past the correction date. Notice of Contest - The employer has the right to contest the citation if it disagrees with any of the following: (1) the alleged violations; (2) the abatement period, or; (3) the penalty amounts. The employer must give OSHA written notice that it disagrees with the citation. The employers written notification is formally called a Notice of Contest. THE EMPLOYER MUST FILE A WRITTEN NOTICE OF CONTEST WITHIN FIFTEEN (15) WORKING DAYS OF THE EMPLOYERS RECEIPT OF THE CITATION AND NOTIFICATION OF PENALTY. 29 U.S.C. 659 (a). The Notice of Contest is submitted to the OSHA Area Director. Occupational Safety & Health Review Commission (OSHRC) The OSHRC is a body independent from OSHA and the U.S. Department of Labor that reviews the decisions of the Administrative Law Judge (ALJ) that presided over the contested case hearing. The OSHRC either adopts the ALJs opinion or issues a decision of its own. Appeals of OSHRC decisions are heard by the U.S. Courts of Appeal - also referred to as circuit courts. Opening Conference - The preliminary conference between the employer and the Compliance Officer prior to the start of the inspection. The Compliance Officer will explain the purpose of his visit and identify the persons to accompany him during the inspection. Other Than Serious Violation - An Other Than Serious Violation is a violation that will not result in death or serious physical harm. 29 U.S.C. 666 (k). An Other Than Serious Violation is more serious than a de minimus violation but less serious than a Serious Violation. The maximum penalty for an Other Than Serious violation is $7,000, but it is usually much less than that. 29 U.S.C. 666 (c). OSH Act - The OSH Act refers to the federal Occupational and Safety and Health Act of 1970. It is also referred to as The Williams-Steiger Occupational Safety & Health Act of 1970. Public Law 91-596; 29 U.S.C. 651 et seq. Page 58

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The purpose of the OSH Act is to assure as far as possible, every working man and woman in the Nation safe and healthful working conditions . . . . 29 U.S.C. 651 (b). Employers are subject to civil and sometimes criminal penalties if they violate the OSH Act. OSHA - The federal agency responsible for enforcing the Occupational Safety & Health Act. OSHA 300 Log This replaces the OSHA 200 log. The OSHA 300 log technically refers to OSHA Form 300. However, the term OSHA 300 Log is also used collectively to refer to the following three forms required by OSHA: (1) OSHA Form 300, Log of Work-Related Injuries and Illnesses, is a log of each recordable injury and illness; (2) OSHA Form 300-A, Summary of Work-Related Injuries and Illnesses, is the employers annual summary of occupational injuries and illnesses of its employees; (3) OSHA Form 301, Injury and Illness Report, is an incident report form that must be completed for every recordable injury or illness entered on OSHA Form 300. The Compliance Office will review these forms during an inspection and verify that they have been posted properly. The forms and instructions can be downloaded from OSHAs website. OSHA Area Director - The Director of an OSHA Area Office. An OSHA Area Office is located in most States. You can go to the OSHA Links page at www.oshaguide.com to obtain contact information for all OSHA Area Offices. Penalty - A penalty generally refers to a civil monetary penalty assessed against an employer by OSHA for violation of the OSH Act. Criminal penalties can also be assessed in certain situations. (See Criminal Penalties above). Penalty Adjustment - The general term encompassing penalty reductions and penalty increases. Reductions can never be below the minimum penalty amount set forth by statute or administrative rule. Likewise, increases can never be above the maximum penalty amount set forth by statute or administrative rule. Penalty Reduction - A reduction in the penalty amount for meeting certain criteria set forth in the Penalty Reductions section of this manual. Petition for Modification of Abatement (PMA) - Petitions for Modification of Abatement (PMAs) are used if the employer does not contest the citation but needs more time to correct the violations. 29 U.S.C. 659 (c). PMAs are filed with the OSHA Area Director. They must be filed before the close of the next working day following the date on which abatement was originally required. 29 CFR 1903.14 a (c); 29 CFR 2200.37 (c). Preemption - A defense available to certain employers if another governmental agency regulates the same conduct cited by OSHA. The other federal regulation preempts the OSHA standard. OSHA has an understanding with many governmental units that are set forth in Memorandum(s) of Page 59

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Understanding that can be viewed on OSHAs website. memoranda often address when preemption applies.

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Probability Rating - One of the factors considered by the Compliance Officer in assessing the gravity-based penalty (GBP) amount for a violation. The probability ratings are Greater and Lesser depending on whether the likelihood of injury or illness is high or low. Programmed Inspection - A comprehensive inspection scheduled on the basis of neutral administrative criteria such as location, accident statistics, etc. Referral Inspection - An unprogrammed inspection triggered when another government employee observes a safety violation and reports it to OSHA. Repeat Violation - An employers second or subsequent violation of a standard previously cited by OSHA inspection in the previous three years. For a repeat, OSHA will multiply the current penalty according the formula set forth in the Penalties for Repeat Violations section of this manual. Safety Codes - Specific safety standards regulating work practices and processes such as fall protection, machine guarding, etc., are found in the Code of Federal Regulations (CFR) and are referred to by their federal CFR number (e.g. 29 CFR 1910.001). The standards are divided into four broad categories: (1) General Industry, 29 CFR Part 1910; (2) Construction, 29 CFR Part 1926; (3) Maritime & Longshoring, 29 CFR Part 1915, 1917, 1918, and; (4) Agriculture, 29 CFR Part 1928. Serious Violation - A Serious Violation is a violation where there is a substantial probability that death or serious physical harm could result. 29 U.S.C. 666 (k). Examples of serious physical harm are amputations, fractures, disabling burns, etc. The maximum penalty for a Serious Violation is $7,000. 29 U.S.C. 666 (b). Severity Assessment - One of the factors considered by the Compliance Officer in assessing the penalty amount for a violation. The severity assessment is based on the most serious injury or illness which could reasonably be expected to result from the employees exposure. OSHA FIRM IV-C-2-e. The severity assessment is ranked High, Medium and Low. Standard Industrial Classification (SIC) - The federal classification system, which classifies employers by an industry code representing the type of activity performed. Each industry is assigned an SIC code, and OSHA will sometimes refer to accident statistics for the employers SIC code to determine whether the employer is in a high hazard industry. Unabated Violation - A violation that is not corrected by the correction date listed on the citation. (See Non-abatement above).

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United States Code (U.S.C.) - The United States Code (U.S.C.) is the body of law created by the United States Congress. The OSH Act is contained in U.S.C. Title 29, Chapter 15, Sections 651 to 678. Unprogrammed Inspection - An inspection in response to an event that cannot be scheduled (i.e., programmed) such as an accident, complaint, referral by another government employee or in follow-up to a previous inspection. Variance (Application for) - Upon the issuance of a new rule, if the employer foresees that it will be unable to comply, or that it will be unable to comply in time, the employer can apply to OSHA for a variance. 29 U.S.C. 655 (b)(6). A variance means that the employer is excused from complying with the specific health standard. OSHAs Office of Variance Determinations processes variance applications. While variance applications are pending employers can also request an interim order. An interim order grants to employers temporary authority to use alternative means of employee protection, other than compliance with the safety standard, until a final determination is made on the variance application. Violation - OSHA must prove the following elements by a preponderance of the evidence to establish a violation: (1) the cited standard applies; (2) the employer failed to comply with the cited standard; (3) employees were exposed or had access to the hazard, and; (4) the employer knew, or with reasonable diligence should have known, of the hazardous condition. Walk-Through - After completion of the opening conference, the Compliance Officer will conduct a tour of the business premises. This is referred to as a walk-through or walkaround. The Compliance Officer is authorized to conduct an inspection during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner. 29 U.S.C. 657 (a)(1). During the walk-through, the Compliance Officer will be attempting to identify safety code violations. Warrant - The document obtained by OSHA if the employer denies entry to all or part of the premises for the purpose of an inspection. The warrant must set forth probable cause for the inspection. Willful Violation - A Willful Violation does not require malicious intent or an obstinate refusal to comply. A willful violation exists if the employer knowingly decided not to comply with the safety standard. Other jurisdictions have more recently defined a willful violation as one committed with intentional disregard or plain indifference to the requirements of the OSH Act. A willful violation will be assessed a penalty of $5,000 to $70,000. Criminal sanctions can be imposed if a willful violation causes the death of an employee. Withdrawal - The term used when OSHA decides to abandon all or part of the citation. It can also refer to the employers withdrawal of a Notice of Contest. Page 61