Common Defense Strategies

​Common Defense Strategies for OSHA Citations

Avoiding Serious Repercussions Following Alleged Violations

From collateral costs and considerable fines to reputational harm and exposure to civil liability, OSHA violations pack consequences that can threaten a company’s future.

If your business has been cited for violating an OSHA standard or is subject to an OSHA inspection, seeking the best possible outcome will require a carefully planned and deployed defense.

At Hendershot Cowart P.C., our OSHA law team has decades of experience defending clients against OSHA enforcement actions. We are available to discuss your situation, available defenses, and how we can help you proceed.

Contact us to speak with a lawyer – call (713) 909-7323 or contact us online.

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A Tailored Approach to Defending Against OSHA Citations

OSHA citations are fact-specific matters that require defense strategies tailored to the circumstances at hand. Although every workplace and employer are different, you may be able to raise one of the following affirmative defenses:

1. Employee Misconduct

Also referred to as an isolated occurrence or incident defense, an employee misconduct defense focuses on the scope of an employer’s culpability for incidents caused by workers who have been provided ample opportunities and resources to ensure compliance. It is among the most common defenses.

Establishing an employee misconduct defense requires an employer to show the following:

  • The regulatory violation was a direct and exclusive result of an employee’s conduct;
  • The employer / supervisors did not participate in, observe, or know about the violation;
  • The employee’s conduct violated internal company policies in place at the time of the violation.

2. Impossibility of Compliance

Though not always the case, there are times when compliance with a specific OSHA standard would be impossible, imprudent, or unsafe given the nature of the employer’s business and / or their working environment. This may be a viable defense, for example, when a roofing contractor cannot comply with conventional means of roof installation given a project’s unique proportion, anchorage, and material.

In arguing the impossibility of compliance, employers will need to demonstrate how compliance under given conditions is functionally not possible (or a potential greater risk to employers). Employers should have site-specific compliance plans outlining alternative safety measures and means.

3. Equipment Not in Use

Employers may challenge citations when violations target equipment not in use.

This would require an employer to show that steps were taken to remove a piece of equipment and clearly mark it as inoperable or out of order. It may also apply to equipment or tools that, although observed in an OSHA inspection, were inoperable and being repaired.

4. No Risk to Employee

OSHA has the burden of proving that alleged violations pose immediate or direct dangers to workers.

In cases where such as defense is possible, providing documentation or arguments that no such risk existed, even at an informal conference at the contest stage, could produce a favorable resolution.

5. Not in Scope of Employment

OSHA oversees workplace safety, so if incidents arise outside the scope of employment, employers may have the option to raise a defense.

This would require employers to produce documentation and evidence regarding the duties of personnel and any compliance plans and policies that address or explicitly prohibit the specific type of conduct which led to the incident.

6. Multi-Employer Worksite

If there are multiple employers on a job site, is it possible that the wrong employer was cited due to confusion about the role of each contractor at a job site? If an employer can show that it neither created nor exposed employees to the cited hazard, that employer may be able to invalidate the citation.

The first step is defining the role of each employer on a worksite. OSHA’s Multi-Employer Worksite Policy defines four categories: the creating, exposing, correcting, and controlling employer. Simply stated, the creating employer created the hazard, the exposing employer exposed their employees to the hazard, the correcting employer had responsibility for identifying and correcting the hazard, and the controlling employer hold general supervisory authority over the worksite. An employer may fall into one or more – or none – of these roles.

Once employer roles are defined, step two is to determine the duties and obligations of each employer and whether they failed to meet those obligations. Both steps present opportunities to challenge OSHA’s interpretation of the roles and actions of an employer in relation to the cited hazard.

Multi-employer sites are not restricted to the construction industry but may include any worksite at which two or more entities are working on a common project.

A Comprehensive Approach to OSHA Compliance

Effective handling of an OSHA citation involves more than raising an affirmative defense. It requires a comprehensive approach to compliance that focuses on both timely interventions and preventative measures.

Some of the most important steps employers can take when facing any OSHA enforcement action include:

  • Acting immediately to enlist counsel, conduct independent investigations, and preserve evidence for use in negotiations, hearings, informal settlement conference, or civil trial.
  • Collecting and preparing documentation, including essential documents like compliance plans, training programs, employee attendance records, proof of risk-mitigating measures such as language translation or one-on-one training, site inspection / enforcement records, catastrophe management policies, and job hazard assessments.
  • Deploying immediate interventions to define the scope of inspections and abatement requirements, implement corrective action, and mitigate costs and time consumption.
  • Contesting the classification of the citation rather than the fine, especially in cases involving serious, willful, and repeat violations that enhance penalties or increase exposure to significant liability in the future, including the Severe Violator Enforcement Program (SVEP).
  • Auditing current compliance programs and refining processes to address areas at issue, establish good faith with regulators, and reduce risks of future violations.

Hendershot Cowart P.C. has extensive experience counseling businesses throughout Texas, Oklahoma, Louisiana, Colorado, and beyond in a range of OSHA compliance matters – from the creation and implementation of compliance plans to immediate response and defense strategies. If you have questions about our services, contact us online or call (713) 909-7323 to request a consultation.

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