OSHA citations create a number of short- and long-term risks that can jeopardize employers and the futures of their businesses. When it comes to protecting your business’ interests following a citation, knowing how they work is critical to understanding your options, the need to act quickly, and the importance of working with experienced legal counsel when pursuing a defense and positive resolution.
At Hendershot, Cannon & Hisey, P.C., our OSHA defense attorneys have earned a reputation for our work protecting the rights of employers facing a range of OSHA-related matters – from proactive compliance to responsive representation and defense against all types of citations. Our attorneys know the far-reaching impact of OSHA citations, and leverage over a century of collective experience to craft tailored strategies that help resolve these high stakes cases.
Educating clients about the OSHA citation process is a critical component of our work. To help ensure you have the facts you need to better understand these proceedings and what lies ahead, we have outlined the most important aspects below:
- Elements required to issue a citation
- Timely action when responding
- Options for resolution and defense
- Future compliance and risk-reduction
Elements Required for a Citation
OSHA functions for the purpose of enforcing various standards that ensure employers provide safe and health working conditions. As such, they can issue citations to those who violate any number of standards and classify those citations based on their severity. In order for OSHA compliance officers to issue these citations, a few general elements must exist. These include:
- An alleged hazard – Alleged hazardous conditions, equipment, or operations must be documented.
- An OSHA standard – There must exist an established OSHA standard in order for any citation to be issued. While compliance officers may cite any number of specific standards, they may also choose to cite OSHA’s general duty clause in the absence of an applicable standard.
- Nature of the violation - OSHA must illustrate how an alleged hazardous condition violated an established OSHA standard. This means they must document which part of the standard was violated and provide evidence illustration the violation.
- Employee exposure – Compliance officers must also be able to demonstrate that workers were exposed to any alleged hazardous conditions. If exposure cannot be shown, citations cannot be issued, or may be subject to dismissal or reclassification upon an appeal. Proof of employee exposure may entail evidence such as photos or employee interviews.
- Employer knowledge – The presence of an employer’s knowledge is one of the most critical elements needed for issuing citations. Generally, this means that an employer, or any of its representatives or managers, knew or should have known about a hazardous condition in their workplace, yet failed to address it.
Understanding these elements is critical to helping employers understand not only how citations are issued, but what OSHA needs to prove in order for a citation to be valid. As such, these elements can provide direction when it comes to raising any challenges.
Timely Action & Response
No matter how a citation arises, time is a critical factor. By taking immediate action and opening doors for communication, employers can maximize their opportunities for a successful resolution, and ensure they comply with strict time limitations – including the 15 days they have from the date of a citation notice to file an appeal. Our firm responds immediately to clients that have received OSHA citations precisely for these reasons, and can help employers assess the nature of the alleged violation and their options for a response.
Options for Defense / Resolution
While every case is unique and response strategies dependent on the unique facts involved, there are a options employers may explore when it comes to defending against OSHA citations and seeking positive resolution. Generally, these may include:
Informal Settlement Conferences – Following citations, employers may have the option to request informal settlement conferences with an OSHA official. These informal proceedings allow employers to better understand the specifics of a citation prior to moving forward, if at all, with an appeal. For example, employers who meet with local OSHA directors at settlement conferences can obtain important information about the nature of alleged violations, assessment of evidence OSHA has to prove the violations, and specific information about the OSHA standards being applied.
This information can help employers identify any issues or discrepancies that can shape their options and course of action. For example, negotiations based on these issues and essential elements may allow for negotiations and reasonable settlements involving:
- Reclassification of citations
- Mitigation of fines and other penalties
- Avoidance of the Severe Violator Enforcement Program (SVEP)
- Negotiation over required abatement of alleged hazards
- Creation of compliance plans
- Citation dismissals
Contesting OSHA Citations – In some cases, waging a defense to contest an OSHA citation may be the most appropriate option. This can be the case in situations where the cumulative impact of potential penalties and future consequences (i.e. willful or repeat violations, future litigation, loss of contracts, and repeat citations that carry elevated fines) could threaten the future of businesses, their reputation, or their solvency, or when there are critical flaws or inaccuracies in the citations.
When contesting an appeal, employers must do so immediately (within 15 business days of citation date). They must also determine whether they will raise issues with the entirety of the citation or specific parts, such as:
- The classification of the citation
- Imposed fines
- Nature of required abatement
- Date by which corrective actions must be taken
Whether contesting the validity of a citation or challenging certain aspects, employers will have the burden of proving their claims and presenting a case backed by evidence before an administrative judge. Because these are case-specific matters, whether or not your business should pursue an appeal will depend on the unique facts involved and a comprehensive evaluation of risks and options.
However a resolution is reached, employers will want to address the issues which led to the alleged violations and citation they received from OSHA as they resolve the citation and move forward. This means taking proactive measures to ensure safe working conditions and ensure compliance beyond having a guidebook on the shelf. Our legal team at Hendershot, Cannon & Hisey, P.C. has the experience and depth of knowledge to help businesses in a range of industries address matters relating to compliance plans, training guidelines, catastrophe management, and more.
If you wish to discuss an OSHA citation and how Hendershot, Cannon & Hisey, P.C. can help you, do not hesitate to call (713) 489-2028 or contact us online as soon as possible. Our OSHA defense lawyers serve clients throughout Houston, Texas, and beyond.