Challenging An OSHA Citation: The “Unavoidable Employee Misconduct” Defense

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As an employer, you must follow hundreds of guidelines to remain compliant with the Occupational Safety and Health Administration’s (OSHA) regulations. Through voluntary training and thorough planning, you can do everything reasonably possible to ensure your employees have a safe work environment. However, in some cases, employee misconduct may still lead to a violation of OSHA standards.

You did everything right; your employee made the mistake. Can you challenge the OSHA citation in this event?

Employee Misconduct and OSHA

If you receive an OSHA violation, even after you have taken all reasonable measures to comply with OSHA’s standards and run a safe work site, you can challenge the citation. OSHA recognizes such a defense and calls it “unpreventable employee misconduct”.

To claim such a defense and prove misconduct, you must show:

  • An established work rule, if followed, would have prevented the violation;
  • Employees were properly trained on the work rule;
  • You have taken steps to enforce the rule and violations have been uniformly disciplined (and documented); and
  • There was no way for you as the employer to know about or prevent the alleged violation on the date the citation was issued.

To establish the first two conditions, you must show that the work rule existed, was mandatory and was clearly communicated to all employees—not just supervisors. According to OSHA, a work rule is “an employer directive that requires or proscribes certain conduct and that is communicated to employees in such a manner that its mandatory nature is made explicit and its scope clearly understood.”

It is generally a good idea to document health and safety training, including the names of those in attendance (with signatures). Employees may forget a training session and the work rules covered; good recordkeeping helps ensure your bases are covered during an OSHA inspection.

Next, you must prove that you have routinely monitored for and uniformly enforced health and safety violations. Conduct frequent inspections on equipment and processes. Use checklists or audits to monitor the workplace and address violations promptly. Document all disciplinary actions—both verbal and written. Again, recordkeeping is key.

Finally, if the violation was unknown to you on the date of the citation, in spite of regular monitoring, and if all of the above conditions are met, you may have grounds to challenge the citation. With sufficient evidence, the citation may be vacated, reclassified, have reduced penalties, or modified by the Occupational Safety and Health Review Commission.

Challenging a Citation

What's next? According to OSHA rules, if you wish to contest any portion of your citation, you must submit a Notice of Intent to Contest in writing to your local area OSHA office within 15 working days after receipt of the Citation and Notification of Penalty. Telephone calls or a conversation during the inspection are not sufficient. Once you submit your notice of intent, your case is officially in litigation. The most important thing an employer can do at this point is to seek skilled legal representation to ensure you follow the correct legal procedure to protect your company’s best interests.

Representing Employers Throughout Texas with OSHA Compliance

No matter how fastidious you are in complying with OSHA standards, it is still possible to have an employee who violates an OSHA standard. Again, in anticipation of such an event, conduct effective training, regularly monitor and address violations, and keep records of all your efforts. In the event of an unexpected citation caused by an employee, you have evidence of your compliance and can prove employee misconduct.

In making an “unpreventable employee misconduct” defense, you acknowledge that the OSHA violation occurred. However, you have the opportunity to present evidence that—even with persistent and uniform effort on your part—there was no way that you could have prevented the employee’s conduct and subsequent violation.

If your company was changed with an OSHA citation, do not hesitate to contact the OSHA defense attorneys at Hendershot Cowart P.C. today. We will ensure you follow the correct legal procedure and apply the best possible defense strategy to vacate, reduce or modify the citation.

Call our skilled Houston OSHA defense lawyers today at (713) 909-7323 if you have questions or concerns regarding OSHA citations against your business.

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