Posts Tagged ‘OSHA citation’

A New Era for OSHA

Included in the budget signed by Congress and the President on November 2, 2015 was an increase in OSHA penalties. This is the first time OSHA penalties have increased in 25 years.

OSHA has yet to issue its interim final rule, clarifying the fine increases; however, it is anticipated that the standard fines will increase approximately 80 percent. Thus, the new fine schedule is anticipated to change as follows:

  • “Serious violations” and “other than serious violations” previously were a maximum fine of $7,000; they are likely to increase to a maximum fine of $12,600.
  • “Willful violations” and “repeat” violations previously were a maximum fine of $70,000; they are likely to increase to a maximum fine of $126,000.

These new fine amounts will go into effect once OSHA issues a final interim rule, confirming the new fine amounts. The rule will go into effect by August 1, 2016, at the latest.

In the meantime, OSHA has continued to vigilantly enforce the standards. This month, a Lancaster County residential homebuilder was cited $64,400 in proposed penalties. The majority of the fines arose from two willful citations. One willful citation for $28,000 arose from three separate uses of forklifts to create a scaffold without proper fall protection. A second willful citation of $28,000 was for employees installing roofing shingles without the proper use of fall protection.

Certain common sense techniques are the best protection from OSHA citations. Emphasize safety by routinely training employees; create a safety program, and hire a safety director, if within the budget; and always prioritize safety on the jobsite. Also ensure that employees are familiar with the most common safety issues and proper protection. In 2015, the top 3 OSHA (construction) standards frequently cited for penalties were as follows:

  1. Fall Protection.
  2. Scaffolding.
  3. Ladders.

When creating a safety program, it is best to rely upon specialized consultants. When resolving or defending OSHA citations, it is best to seek legal advice. Safety has always been a priority for construction companies; now, with the increase in fines, properly handling OSHA citations is too.

What’s Happening Now . . .

       12.3%

  • 2015 Increase in private construction spending.
  • 2015 had private construction spending of $806.1 billion.
  • 2014 had private construction spending of 717.7 billion.

Source: U.S. Census Bureau News, December 2015 Construction at $1,116.6 billion annual rate, US Dept. of Commerce (Feb. 1, 2016).

 

Newsletter written by Jeffrey C. Bright, Esq. , an attorney licensed in Pennsylvania and Maryland. For more information, contact an attorney at Harmon & Davies, P.C.

Employment          Construction           Business

2306 Columbia Ave. | Lancaster, PA 17603

T: 717.291.2236 | www.h-dlaw.com

 

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Employer Succeeds in Efforts to Have OSHA Citation Vacated

Sometimes it pays to contest an OSHA citation.  Take for example, the case of Sec’y of Labor v. K.E.R. Enters. Inc., where the Occupational Safety and Health Review Commission (“OSHRC”) recently vacated an OSHA citation for a serious violation.  In the K.E.R. Enterprises case, the employer was pressure-testing a water pipe as part of a waterline installation project.  The project foreman noticed a small leak near what is referred to as a restraining gland and instructed two workers to tighten the T-bolts on the restraining gland.  During this process, the pipe exploded, sending fragments flying.  Both of the foreman’s legs were broken and three other workers were injured as a result.

OSHA cited the employer with a serious violation of the Occupational Safety and Health Act’s general duty clause, which is basically the Act’s catchall provision, for exposing its employees to the hazard of being struck by pipe fragments.  Specifically, OSHA blamed the employer for failing to follow the restraining gland’s manufacturer’s installation instructions and for failing to adhere to guidelines in the American Water Works Association’s (“AWWA”)  standards.

The employer successfully contested the citation.  An administrative law judge ruled that the employer’s alleged failure to follow installation instructions and the AWWA’s guidelines did not render the employer liable for the pipe explosion.  Rather the judge found that the employer took proper actions and that there was insufficient evidence to support an assertion that anyone involved should have “recognized that it was a hazard to tighten T-bolts to stop a small leak without first depressurizing the pipe.”

Thereafter, in a petition for review, the Secretary of Labor unsuccessfully argued that the employer’s alleged failure to follow the manufacturer’s instructions or the AWWA’s guidelines  evidenced a violation of the Act’s general duty clause.  However, the commission reasoned that neither the instructions nor the standard contained a safety warning or suggested that failure to comply could lead to injury.  Rather, there was a lack of evidence establishing that the instructions or guidelines established that overtightening the T-bolts could create a hazard of being struck by pipe fragments during a pressure test.

If you are an employer who has been cited for an OSHA violation, the attorneys at Harmon & Davies can assist you with contesting a citation.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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A Canonsburg, Pennsylvania based painting contractor faces nearly half a million dollars in proposed OSHA penalties for alleged safety violations at three of its projects.  The large citation includes 38 alleged violations, including 14 willful and 11 repeat violations at worksites in Slatington, Harrisburg, and Slatedale, Pennsylvania.

The alleged willful violations include failing to properly protect workers from lead exposure and failing to provide fall protection.  The repeat violations relate to employee exposure to lead above the permissible exposure level, a lack of warning signs posted in lead work areas, failure to ensure workers showered at the end of each shift, and failure to provide medical evaluations and fit tests for respirator users.

Additional alleged violations include:

  1. Failure to notify employees of the results of lead monitoring;
  2. Failure to provide employees with initial medical surveillance for lead;
  3. Failure to provide periodic blood tests for employees exposed to lead;
  4. Allowing workers to have or consume food in an area where lead exposure was above the permissible level;
  5. Failing to notify employees in writing of blood lead test results within five days;
  6. A lack of guarding on electrical wiring to prevent accidental contact; and
  7. Failure to ensure that workers wore respirators while blasting with glass media or when exposed to lead in excess of permissible limits.

 

The cited company has been under OSHA’s scrutiny for the past several years, having been inspected five times in the past five years with four of the inspections resulting in citations for serious violations.  As a result of the painting contractor’s alleged refusal to correct hazards, it has been placed on OSHA’s Severe Violator Enforcement Program, which requires targeted follow-up inspections to ensure compliance with OSHA regulations.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Why Employers Might Want to Contest “Willful” OSHA Citations

A recent federal court decision in a case referred to as Dayton Tire v. Secretary of Labor, gives employers an even stronger basis from which to contest “Willful” OSHA citations.   Specifically, the recent decision holds that Willful OSHA violations require more than a showing of “mere negligence.”  What this means is that as long as an employer is acting in good faith to comply with OSHA regulations, even if OSHA later determines that the employer’s actions fell short of what was required under OSHA regulations, the employer should not be cited for a Willful violation.

By way of background, OSHA violations are classified as:  Willful, Repeat, Serious, or Other than Serious.  Willful and Repeat violations are the most severe and I usually cringe when clients come to me with Willful and Repeat violations because the fines associated with such violations are substantially greater than the fines associated with Serious or Other than Serious violations and, if the citation sticks, Repeat and Willful violations really put a black mark on the company.  Where the basis for classifying the violation as Willful or Repeat is questionable, Harmon & Davies has frequently counseled our clients to contest the classification of the violation and we have reached favorable results for our clients in terms of having the classification of the violation reduced.

As stated above, the decision in Dayton Tire v. Secretary of Labor gives employers even more grounds upon which to contest a Willful violation.  In challenging a citation, the law says that regardless of the classification of the violation, OSHA must be able to prove that the employer had knowledge of the violative condition.  This standard protects employers from the rouge employee who, despite the employer’s best efforts to create a safe and compliant workplace, violates an OSHA regulation without the employer having any knowledge of it.

Even though the employer’s knowledge of the violation is required for every level of citation, a Willful violation requires that OSHA not only show that the employer had knowledge of the violation, but that an employer committed the violation voluntarily with either an intentional disregard of or plain indifference to OSHA regulations.  To prove that the violation was properly classified as Willful, the Secretary of Labor must show that the employer was actually aware, at the time of the violative act, that the act was unlawful, or that the employer possessed a state of mind that if it were informed that it was violating an OSHA standard, the employer would not care.  In other words, it takes a lot to show that an employer was plainly indifferent.  Accordingly, in the Dayton Tire case, the U.S. Court of Appeals for the District of Columbia Circuit held that based upon the Secretary of Labor’s failure to cite to a single piece of evidence indicating that the company’s manager was actually aware that the company’s actions were unlawful, the Secretary of Labor could not prove that the violation was Willful.  Thus, the Court vacated the penalties assessed against the employer.

In so ruling, the DC Circuit court (a federal appellate court) remarked that findings of plain indifference have only been upheld where the evidence shows that a company made no effort to address repeated warnings from employees or OSHA that the company was in violation of safety standards.  The allegations involved in the Dayton Tire case failed to reach that level.  Rather, the evidence in Dayton Tire showed that one of the safety managers made an attempt to respond to safety concerns involving Lockout/Tagout procedures when such concerns were raised.  Although the safety manager might have done more, she did not utterly fail to act.  As such, the safety manager’s responses reflected negligence at most, which evidence is insufficient for a finding of a Willful violation.  Accordingly,under the precedence established in Dayton Tire, so long as employers act in good faith, even if they are wrong, , such employers should not be cited for Willful violations.

If you are an employer who has been issued an OSHA citation, the attorneys at Harmon & Davies are here to assist you with evaluating the merits of your citation and determining whether you should contest the citation.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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Last month the owner of a Pennsylvania painting company plead guilty to a single misdemeanor count of a “willful violation of an Occupational Safety and Health Administration regulation causing the death of an employee” and was sentenced to a year of probation.  The charge stemmed from the 2010 death of one of the owner’s employees who was sadly electrocuted while using a paint roller at the end of a fiberglass extension pole to reach an upper section of a 30-foot-tall commercial building when the pole came into contact with electrical wires.  Although the owner had warned the employee that the lines were “very dangerous” and to be “extra careful,” he failed to provide any safety related training to the employee and took no steps to protect the employee from the energized lines.  The contractor was cited by federal prosecutors for violating 29 C.F.R. §1926.416(a)(1), which requires employers to prevent workers from laboring close to any part of an electric power circuit unless they are protected against electric shock through insulation of the circuit or de-energizing and grounding of the circuit.

In addition to the criminal charge, OSHA had already fined the contractor $57,400 for one willful and two serious violations stemming from the agency’s investigation into the 2010 death.  May this case serve as a reminder of how important safety related training truly is and how every effort should be made to protect employees from danger.

However, if you ever find yourself in the unfortunate situation of having to contest an OSHA citation, the attorneys at Harmon & Davies, P.C. are here to assist you.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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OSHA’s Severe Violators List Nearly Doubles in a Year

The Severe Violator Enforcement Program that OSHA started nearly two years ago continues to grow as the number of severe violators nearly doubled since last year.  According to OSHA data, as of June 30, 2011, 330 establishments are designated as “severe violators” and as of July 2011, 182 employers have been sited under the enforcement program. To be declared a severe violator, a company must have experienced a fatality or an accident that hospitalized at least three workers or have been cited for significant violations of OSHA standards.

A majority of the establishments on the list were placed there as a result of inspections producing two or more willful, repeat, or failure-to-abate citations for “high-gravity” violations related to hazards classified as “high emphasis” by OSHA.  High-emphasis hazards include falls, amputations, entrapment in excavations, combustible dust, shipbreaking, grain handling, and overexposure to lead or silica.

Construction Companies Make Up Majority of the List.  Sadly, construction companies account for 52 percent of the businesses on the severe violators list (down from 61% last year).   Manufacturing makes up the next largest chunk of severe violators with 3 percent.  One possible reason why construction companies account for over half of the businesses on the severe violators list is because the construction industry involves high emphasis hazards.  For example, citations for hazards such as lockout/tagout or crowded exits do not trigger Severe Violator Enforcement Program designation.  Thus, a small roofing company cited for repeat fall prevention violations might be on the list while a retain chain store cited for repeat violations of improperly stacked boxes won’t be.

How to Handle Being Placed On the Severe Violators List.  If your company is placed on the severe violators list it has four options:  (1) contest the citation; (2) enter into an informal settlement with OSHA; (3) enter into an enhanced settlement agreement with OSHA; and (4) choose not to challenge the citation.  Since June 2010, 59 companies have been removed from the list after successfully appealing the citations that landed them on the list.  Currently, 34 percent of the companies on the list are contesting the OSHA allegations.  A quarter of the sited businesses have settled with OSHA with 22 signing an “enhanced settlement agreement” and 3 percent agreeing to informal settlements.  An enhanced settlement could involve any of several options such as: hiring safety and health consultants, making the settlement apply to all the company’s sites, and submitting quarterly injury and illness reports to OSHA.  Finally another forty-four percent of the companies on the list are not challenging their citations.

If you need assistance with contesting an OSHA citation, the attorneys at Harmon & Davies, P.C. can assist you.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

 

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Construction Contractor Gets OSHA Citations Vacated

In November 2006, the Occupational Safety and Health Administration (“OSHA”) cited and fined Volks Constructors, a full service heavy industrial contractor, $13,300 for failing to properly record certain workplace injuries and for failing to properly maintain its injury log between January 2002 and April 2006.  The contractor contested the citations on the grounds that they were untimely because they were issued at least six months after the last recorded injury occurred.  Pursuant to OSHA regulations, no citation may be issued after the expiration of six months following the occurrence of any violation.

By way of background, the Occupational Safety and Health Act provides that each employer shall make, keep and preserve records of workplace injuries and illnesses.  OSHA regulations require employers to record information about work-related injuries and illnesses in three ways:

(1)               employers must prepare an incident report and a separate injury log within seven calendar days of receiving information that a recordable injury or illness has occurred;

(2)               employers must prepare a year-end summary report of all recordable injuries during the calendar year, which summary must be certified by a company executive; and

(3)               the employer must save all of these documents for five years from the end of the calendar year that those records cover.

In the case of Volks Constructors, OSHA began an inspection of Volks in May 2006 and discovered that Volks had not been diligent in completing its logs, forms, and summaries between 2002 and 2006.  OSHA then took approximately six months to issue a set of citations to Volks for violations related to Volks’ failure to fully complete incident report forms, its failure to enter injuries in the log, its failure to conduct year-end reviews between 2002 and 2005 and, in at least one instance, its failure to have the proper person certify the year-end review.  Notably, Volks was not cited for any violation of the requirement that it save the forms and the log for five years.

Volks’ improperly recorded injuries occurred between January 11, 2002 at the earliest and April 22, 2006 at the latest.  By the time OSHA issued the citations in November, however, the citations were issued a maximum of 54 months after the earliest improperly recorded injury and a minimum of six months, plus ten days, after the latest improperly recorded injury.

Volks moved to dismiss the citations as untimely because OSHA regulations state that no citation may be issued after the expiration of six months following the occurrence of any violation and the injuries giving rise to Volks’ recording failures took place more than six months before the issuance of the citations.  An OSHA Administrative Law Judge (“ALJ”) ruled in favor of OSHA and Volks appealed to the Occupational Safety and Health Review Commission (“OSHRC”).  On appeal the Secretary of Labor argued that Volks’ violations were continuing violations that prevented the six month statute of limitations from expiring until the end of the five-year document retention period.  The Secretary essentially argued that because Volks’ violations were still occurring on May 10, 2006 when the inspection began, the citations were timely because they were issued within six months of May 10, 2006.  The Commission agreed with the Secretary and affirmed the citations.  Volks then filed a petition for review with the United States Court of Appeals for the District of Columbia Circuit.

On review, the District of Columbia Circuit was asked to decide whether OSHA’s record-keeping requirement, in conjunction with the five-year regulatory retention period permits OSHA to subvert the six-month statute of limitations.

In reviewing the Commission’s decision, the Circuit Court noted that pursuant to OSHA regulations, OSHA may cite employers for violations within six months of the violation’s occurrence; meaning if an injury is reported on May 1, OSHA can cite an employer for the failure to create a record beginning on May 8, and may issue a valid citation for such failure anytime within the following six months, and only the following six months.  Moreover, once an employer has made such a record, it must also retain it for five years.  If the employer loses or destroys a record before the end of the five year record retention period this is another violation.   OSHA may cite employers for violations of the five year record retention requirement within six months of the violation’s occurrence.  In other words, OSHA may cite a company for failure to maintain its records for the required five years for six months after the fifth year, and only for six months after the fifth year.  In the Volks case, OSHA never cited Volks for a violation of the five year record retention requirement because it could not cite Volks for the loss or destruction of a record that Volks never made.  Rather, OSHA only cited Volks for the failure to create a record.

Thus, the DC Circuit Court concluded that the citations were issued far too late and therefore had to be vacated.  The court concluded that the statutory language which deals with record keeping is not authorization for OSHA to cite the employer for a record-making violation more than six months after the recording failure. Rather, OSHA must enforce record-making violations swiftly or else forfeit the chance to do so.

In reaching this decision, the DC Circuit Court strongly disagreed with the Secretary’s argument that the five year record keeping requirement extended the statute of limitations by noting that the Secretary’s interpretation incorrectly assumed that the obligation to maintain an existing record expands the scope of an otherwise discrete obligation to make the record in the first place.  The Circuit Court viewed the two obligations as distinct stating “one cannot keep what never existed; a company cannot retain a record it never created.”

Notably, the DC Circuit Court distinguished the Volks case as a case of inaction ( i.e., Volks failed to properly create certain reports) from a case of continuing action.  For example, the court noted that where a company continues to subject its employees to unsafe machines, or continues to send its employees into dangerous situations without appropriate training, OSHA may be able to toll the statute of limitations on a continuing violations theory because the dangers created by the violations persist.

Based on the decision reached in the Volks case, if you receive an OSHA citation more than six months after a discrete violation of an OSHA regulation, you should strongly consider contesting the citation on the grounds of timeliness.  The attorneys at Harmon & Davies can assist you with contesting OSHA citations.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice.  Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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