OSHA DEFENSES FROM THE
EMPLOYER’S PERSPECTIVE
for SAFECON EXPO
May 19, 2016
Julie O’Keefe
© 2014 Armstrong
© 2014 Armstrong
Teasdale Teasdale
LLP
LLP
Penalties Will Increase August 1,
2016
 1990 – OSHA Became Exempt From
Increasing Penalties Due To Inflation
 Bi-Partisan Budget Act of 2016 (BBA)Directed OSHA to Issue Interim Rule
Increasing Penalties To Account For Inflation
 Expect Penalties to Increase About 80%
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© 2014 Armstrong Teasdale
LLP
Penalties
 Current
Serious
Other-than-serious - $7,000
Repeat or Willful - $70,000
BBA of 2015 (Approx.)
$12,700
$127,000
Failure to Abate - $7,000/day $12,700/day
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© 2014 Armstrong Teasdale
LLP
Elements Required To Establish a
Violation of a Standard
1. Standard Applies.
− Not every surface is a “work platform”
− LOTO applies where “unexpected
energization could cause injury”
2. Terms of the Standard Were Violated.
− e.g., PPE Hazard Assessment – 1910.132
missing a hazard does not equal violation
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− Not every dent or crack in forklift is a
hazard
© 2014 Armstrong Teasdale
LLP
Elements Required To Establish a
Violation of a Standard (Cont.)
3. Employer Knowledge of Violative
Condition.
− Actual Knowledge – Supervisor knowledge
imputed
− Who is a supervisor
−Constructive Knowledge – “Should have
known”
4. Employee Access to the Hazard.
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− Not every moving part must be guarded,
especially automated equipment
© 2014 Armstrong Teasdale
LLP
Affirmative Defense of Employee
Misconduct –
(AKA, Pavlov’s Dogs)
 Employer had a work rule designed to
prevent the violation
 Rule was adequately communicated to
employees
 Employer took reasonable steps to
discover violations
 Employer effectively enforced the rules
when violations were discovered
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LLP
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Progressive Disciplinary Program –
Required For Employee Misconduct
Defense
 You need a disciplinary program
 “Verbal Warnings” not enough, but okay
as a first step for minor violations if
they are tracked in writing
 Written Warnings Crucial
 If you have a program you need to
follow it precisely
 Site Supervisors must be expected to
issue written warnings or report of
safety – Can’t Just Rely Upon Safety
Staff
© 2014 Armstrong Teasdale
LLP
Review of Law - Willfulness
 Heightened Awareness of Illegality
 Plain Indifference
 Supervisor Presence = May or may not
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Equal Willfulness
 Serious Citation of 20 Years Ago =
Willfulness Today
 Good Faith Defense
 Can’t Substitute Your Judgment for
Standard
 Excavations – Still Lagging But Getting
Better
 Fall Protection – Getting Much Better
© 2014 Armstrong Teasdale
LLP
Other Lesser Used Defenses
 The Secretary Failed to Provide Fair Notice
of His Interpretation of the Regulation
− Previous citation and outcome
− Did OSHA allow creative resolution and
later disavow?
− Failure to certify – OSHA Directive CPL0200-111 says OSHA Does Not Issue Citatins
For Failure to Cerify
− Meer Case. PSM “connected to a process.”
 Infeasibility - Difficult
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© 2014 Armstrong Teasdale
LLP
Other Lesser Used Defenses (Con’t)
 Greater Hazard – Very Difficult
 6 Month Statute of Limitations
− OSHA record keeping Volks case
can’t cite record keeping violations
more than 6 months old
− Delek Refining case – Violation never
fixed – OSHA could go back years
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LLP
Repeat Citation
 Must be “Substantially Similar” Prior
Violation
 OSHA Looks Back 5 Years
 Other –Than-Serious Fair Game
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LLP
Resolving Citations
 Citation Is Only the Inspector’s
Belief that Violation Exists.
 Employer Can Challenge This
Belief.
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LLP
Opportunities to Challenge?
 Informal Conference
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−Must be done within 15 working days of
receipt of citation.
 Contest
−Must be done within same 15 working
day period
−Overwhelming majority of contested
cases settle without hearing
−Often hard to get OSHA to reverse itself
during the 15 day period
−Don’t hesitate to contest
© 2014 Armstrong Teasdale
LLP
Opportunities to Challenge? (Con’t)
−Assistant Area Directors – “I can’t go
any lower”
−Solicitors – More willing to listen to
defenses
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© 2014 Armstrong Teasdale
LLP
Injury Reporting Update
 Non-Mandatory Investigative Tool
(NIT), site visit, or both
 NIT Not Consistently Used By
OSHA
 Stick with Facts
 Be Careful in “Root Cause” and
“Corrective Action” Sections. Will
be used against you.
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LLP