The Journal of The DuPage County Bar Association

Back Issues > Vol. 16 (2003-04)

Osha Is No Longer a Small Country Near Siberia
By Robert H. Brown

Years ago most employers and attorneys thought OSHA was a small and mysterious country near Siberia — or was it near Albania? Today, however, most realize that the Occupational Safety and Health Act of 19712  ("OSHA" or "Act") as enforced in Illinois by the United States Occupational Safety and Health Administration ("the Administration") is not a piece of real estate, but is a statute that employers must follow. However, to most business people and their employees, the OSHA mystery remains as dark as it was in OSHA’s early days.

This article will attempt to unravel questions of what is required by OSHA; how an employer can attempt to satisfy those requirements, including a discussion of the nuts and bolts of enforcement; what impact OSHA has on a business; and what role an attorney should play in safety matters, anyway.

What Is Required By OSHA

All employers, no matter what their size, are subject to OSHA jurisdiction. In Illinois and 25 other states, the Act is enforced by the federal Occupational Safety and Health Administration, a part of the U.S. Department of Labor. All other states, including Indiana, Minnesota, Michigan and Iowa, utilize "State Plan" enforcement by state agencies funded in part by federal OSHA.

Most federal and many (but not all) State Plan OSHA requirements are found in very specific and technical "standards" contained within the Code of Federal Regulations.3  Recordkeeping and procedural regulations and standards for nautical industries are found in other sections of chapter 29 of the Code of Federal Regulations.

The standards contain numerous specific requirements for physical safeguards, procedures, employee training, recordkeeping, and written programs, for virtually every type of machine and operation that might exist at a workplace. Health standards also contain employee exposure limits for noise and for hundreds of airborne contaminants.

The Administration has area offices populated by Industrial Hygiene and Safety Specialists who perform compliance inspections. OSHA’s North Aurora, Illinois Area Office has jurisdiction over employers in DuPage County.

Satisfying OSHA Requirements

Prevention — As in most business and legal matters, prevention of claims by employers should be preferred over defending the claim later. Prevention of OSHA claims also has a huge potential additional benefit. Compliance with OSHA standards usually creates a safer workplace. This leads to fewer employee injuries, lower workers’ compensation premiums, and higher productivity. For the average employer, cost savings realized from a safer workplace can be significant and far greater than cost savings realized from avoiding OSHA penalties.

The greatest service an attorney can perform for a business client on the preventative side of safety is to inform the client of safety professionals and other resources to help it create or improve safety programs. Consulting resources include consultants employed by insurance brokers or carriers, other independent consultants, and the Illinois Department of Commerce and Community Affairs’ ("DCCA") free consulting service. The DCCA consultants usually are thorough and efficient. Unless a business client is a large one that can afford to hire competent in-house safety professionals, such outside help is a must for OSHA prevention.4 

Finally, many OSHA standards are so complex and unclear that just reading them is not enough. Sometimes a standard’s requirements can only be determined by consulting OSHA regulatory history, OSHA directives or opinion letters or decisions by the Occupational Safety and Health Review Commission. This is research that an attorney is uniquely qualified to handle.

The Nuts and Bolts of OSHA Enforcement

OSHA Enforcement — Despite its high profile, the Administration is a small agency with limited resources. Most employers won’t be inspected for years; some have never been inspected. However, much like lightning, one never knows when OSHA will strike. If OSHA does strike, like lightning, its effects will be traumatic.

The biggest causes of OSHA inspections, in approximate order of importance, are: employee complaints, local and national enforcement programs, serious accidents, and follow-ups to prior inspections. The enforcement programs change periodically, but tend to focus on higher hazard industries or employers (as demonstrated by illness and injury statistics). Since good safety programs often will minimize most of these causes of inspections, employers with good programs are less likely to be inspected. Inspections take two possible forms.

"The Letter" — To save resources, OSHA will often conduct a complaint inspection by sending "The Letter," rather than showing up in person. "The Letter" states that unsafe conditions X, Y and Z have been reported to exist at the workplace. It will demand a written response within a few days. An in-person inspection usually will not occur if the response is timely, factual and credibly demonstrates that the hazard does not exist or that it will be corrected by a specific date. An experienced OSHA attorney should be consulted to assist employers in responding. His or her advice can often make the difference between a response letter that prevents an inspection and one that causes an inspection.

On-Site Inspections — The other form of inspection is in person. If OSHA actually shows up at an employer’s door, the employer can insist on a warrant. However, since early cooperation with the inspector can cause favorable exercise of his or her considerable discretion later, forcing OSHA to get a warrant should be very rare and only be for a truly compelling reason.

During an inspection, the investigator can interview employees (non-management employees will be interviewed in private), speak with any union officials for their input, take photos, observe processes, review records, and take environmental samples. Employers should be advised to monitor inspections closely. (Perform a "shadow inspection.") After the inspection, the investigator will hold a closing conference and will discuss areas of concern.

The employer’s lawyer can participate in an inspection at any stage. However, a lawyer will usually be a fifth wheel unless the investigation is a very high stakes/high profile one (e.g., a fatality investigation). Then lawyers should accompany the inspector on his or her walk-around of the facility; should prepare witnesses; review and filter documents; be present during interviews of management personnel; and be the employer’s chief spokesperson during meetings.

The Citation — If violations were observed, citations will be issued; penalties will be assessed, and dates will be set for abatement of unsafe conditions. Most violations will be labeled "serious" and a penalty of between $750.00 and $5,000.00 for each will usually be assessed. The amount of penalty will vary with the size of the employer, the severity and extent of the violation, and with similar variables. Though rare, "willful" and "repeated" violations can be issued with penalties up to $70,000.00. Since the employer has 15 working days from receipt of a citation to contest it, the date of receipt must be noted.

The Informal Conference — Employers can often obtain reductions in penalties, extensions of abatement dates, and deletion of inaccurate violations at an informal conference with the Area Director or his or her designee. Employees and/or the Union can participate to provide their views on correction of the conditions cited. The informal conference must be within 15 working days of receipt of the citation. For most informal conferences, an experienced OSHA attorney with good negotiation skills is recommended. He or she will be able to effectively negotiate with the Administration, and will recognize reasons to drop or change violations or penalties. Often the employer has no clue about areas where the citation is wrong or weak or, for that matter, strong. On occasion, an attorney is not necessary in an informal conference if the citation is clearly correct, involves no abatement issues, and/or the penalties are relatively nominal.

The Contest — If the employer is unhappy with the result of the informal conference or has elected to not have one and to move directly to a formal appeal, it may file a Notice of Contest with the Area Director within 15 working days of receipt of the citation. Employees or the Union may also contest or may elect party status on employer contests in order to disagree with dates set for abatement of the violations. The 15 working day limit may not be extended for any reason. (Participation in an informal conference does not extend the 15 working day deadline.) After contest, the citation is transmitted to the United States Occupational Safety and Health Review Commission, a three-member independent agency, with its members appointed by the President. The Commission assigns an administrative law judge to the case. All current Commission judges are highly experienced, with at least two sitting since 1971 when the Act became law. The judge shepherds the case through pre-hearing discovery, motions, and eventually an evidentiary hearing where all the rules of evidence apply and the record is transcribed by a court reporter. Post hearing briefs are usually submitted and a written decision is eventually issued. Losing parties may appeal to the full Commission. Appeal of Commission rulings is to federal courts of appeals under the Administrative Procedure Act.

Pre-Hearing Negotiations — At the same time the citation is transmitted to the Review Commission, the Area Office file is transmitted to the Department of Labor’s Regional Solicitor’s office. An attorney there is responsible for prosecuting the case. However, the DOL attorneys place a high priority on settling contests and very few cases go to hearing. If the employer’s attorney is factual, persuasive and credible, the DOL attorney will consider reasonable settlement offers which may have been rejected earlier by the Area Director. If the employees or union are represented, their point of view on abatement dates and resolution of the case will be considered by the DOL.

Impact on Business

Safety matters can have a significant and direct impact on an employer’s bottom line. They can also have indirect impact on productivity, employee morale and even union organizing, e.g., unions will often make an issue of employer safety efforts when they attempt to organize a work force. Furthermore, few employers want to face the horrible human consequences of an on the job death or serious injury. Finally, there is personal and corporate criminal exposure for a willful OSHA violation of a standard that causes a fatality.

In addition, employers must consider potential liability for employee injuries Though normally injuries are compensable only through workers’ compensation, an OSHA citation can be a factor in an employee personal injury lawsuit against a third party, such as an equipment manufacturer. An OSHA violation or lack of violation regarding a relevant condition can be material to the existence of a duty and/or breach of that duty. The employer may be forced to defend its actions if brought in as a third party in such a suit. There is some ambiguous language in the Act about lack of admissibility of OSHA matters in private litigation. Therefore, admission or exclusion of such evidence is very much up to the trial judge’s discretion and is not assured.

The Attorney’s Role

Knowledgeable OSHA employer-side attorneys play an important role in preventing safety problems by making their clients aware of the risks of a bad safety program, and the benefits of a good one, as well as directing clients to professional resources. If problems do arise, knowledgeable attorneys can guide employers through OSHA’s complex legal maze and can reduce or eliminate legal exposure in a cost-effective manner.

Knowledgeable employee-side attorneys can guide employees and/or their unions on submitting effective complaints to OSHA if there are safety or health problems at the workplace. They can then participate during the inspection and post-inspection processes to attempt to advance their clients’ agenda. Also, if an employee believes the employer retaliated against him for complaining to OSHA or to the employer about safety, the attorney can assist in pursuing remedies for retaliation provided by the Act and/or by common law.

 2 29 U.S.C. 651 et seq.

 3 29 CFR §1910 (general industry) or 29 CFR §1926 (construction).

 4 For more information See e.g., www.OSHA.gov or www.illinoisbiz.biz/OSHA.

Robert H. Brown is a partner in the Chicago management-side labor law firm of Laner, Muchin, Dombrow, Becker, Levin and Tominberg, Ltd. He spent a major part of the first seven years of legal career prosecuting cases on behalf of OSHA in the Chicago regional office of the U.S. Department of Labor. For the past 25 years, a substantial part of his practice has consisted of defending construction, distribution, transportation and manufacturing employers against OSHA citations. Mr. Brown obtained his J.D. from University of Michigan Law School and his B.S. (journalism) from Northwestern University.


 
 
DCBA Brief