OSHA Citations: Focusing on Contesting the Classification Over the Fine
OSHA citations are nothing to take lightly. Because citations have far-reaching consequences and long-term implications, a carefully structured defense strategy is as important as a swift and immediate response. While some may focus on the financial penalties that accompany OSHA citations – and which can be incredibly severe – mitigating exposure to repercussions is best achieved by targeting the classification of the citation itself.
OSHA Citations & Their Impact
OSHA citations are issued when employers are alleged to have violated any number of workplace health and safety regulations. With a recently revised penalty schedule that substantially increased fines for citations (including some by as much as 80%) and enhanced enforcement and oversight efforts under the newly implemented Severe Violation Enforcement Program (SVEP), OSHA has raised the stakes for employers who receive citations. For example, employers can face the following fines:
- Serious / Other-Than-Serious / Posting Requirements - $12,934 per violation
- Failure to Abate Prior Violation – $12,934 per day beyond the abatement date
- Willful / Repeated Violations - $129,336
While these sums are injurious, a citation means far more than having to pay a fine. Depending on the nature of a violation, citations can create exposure to consequences that have the potential to devastate employers, their brand and reputation, and the future of their business. These include:
- SVEP – Receiving a major citation can subject employers to OSHA’s Severe Violator Enforcement Program (SVEP), which can result in more frequent and disruption inspections. In the first six years since the SVEP was implemented, dozens of companies under its watch have gone out of business, declared bankruptcy, or experienced substantial losses.
- Abatement Expenses – Citations require employers to complete and certify abatement of any and all workplace hazards. This requires understanding what OSHA claims should be done to remedy the violative condition, and mounting the manpower, resources, time, and money to ensure full completion. While this may be as simple as providing employee training, it can also be as complex and costly as mandatory changes in equipment, materials, or practices used by employers that cut into production and profits.
- Future Liability Risks – With OSHA citations comes exposure to liabilities, including potential future civil litigation involving personal injury or wrongful death lawsuits, indemnification, workers’ compensation, and more. They may also result in parallel action involving the EPA, other regulatory agencies, or criminal culpability.
- Loss of Contracts – Citations, especially serious violations, are a blow to brand and reputation. This not only compromises employee or consumer trust, but also relationships with contractors and companies with whom an employer conducts business. Citations and poor safety records are not helpful when competing for new business, and they can harm current contracts. The potential for loss of contracts can be magnified in highly competitive industries, as some companies will refuse projects involving businesses with even “serious” violations. Companies with willful and repeat violations, as well as companies subject to the Severe Violation Enforcement Program, can take the greatest hit to reputation, which is why contesting the classification of the issue and alleged violation is very critical to future stability and success.
OSHA Citations Defense: Contesting the Classification
Defending against an OSHA citation demands tailored strategies that address the unique facts and circumstances at hand, including issues with all or some parts of the citation. From assessing whether incidents and alleged violations involved employee misconduct, arose outside of the scope of employment, were made against the wrong party (or involve the multiemployer enforcement policy), and whether compliance is feasible or even safe for employees, there are many potential avenues for mitigating and reducing the scope of a citation, penalties, abatement requirements, and the overall impact on employers.
These important defense evaluations can also provide the impetus for contesting the actual classification of a citation. While it may not be cost-efficient to contest certain violations (such as a de minimis violation), it may very well be vital that others are challenged, including:
- Serious Violations – Violations are classified as serious when hazards employers knew or should have known about, but failed to address, post substantial risks of injury or death. Arguing the main elements of this violation – such as the risks any workplace condition allegedly creates – can provide opportunity for reducing the violation to other-than-serious, or dismissing it altogether.
- Willful Violations – Willful violations can be immensely consequential for employees. Because they are serious allegations, they involve concepts of intent, meaning employers must have known about hazards, willfully ignored regulations and requirements, and failed to remedy issues. Contesting willful violations on the facts, as good faith is not a factor as it is for other violations, is vital to not only avoiding large fines, but also protecting a company’s reputation and potentially shielding it from related insurance issues and litigation or liability, including criminal charges.
- Repeat Violations – An employer’s safety record is a significant factor in how citations will impact their business. Because it is OSHA’s policy to classify any new violation involving similar conditions or hazards as repeat violations, employers can face substantially increased fines and losses, particularly when they operate multiple locations. As such, contesting a citation classified as a repeat violation can protect employers from substantial penalties and consequences in the short- and long-term.
In any OSHA violation case, time is of the essence as there are time limits in place for launching an appeal. Acting fast after a citation of any classification level, and especially more serious violations, can also ensure proper steps are taken to conduct independent investigations, preserve evidence, and gather documentation that can prove vital during hearings, or any informal settlement conference, negotiation, trial, or appeal. Addressing any potential hazards, implementing effective and compliant policies, and avoiding missteps that can compromise a case or open the door to retaliation claims is also crucially important.
Trust Proven Texas OSHA Attorneys with Your Citation Defense
Hendershot, Cannon & Hisey, P.C. has represented a wide range of employers throughout Texas and the U.S. in both proactive matters related to OSHA compliance, inspection preparation, and training programs and immediately pressing and high stakes cases following catastrophes and citations. Because we leverage over a century of collective experience, we’re able to provide the insight-driven defense needed to contest citations, represent clients before administrative law judges at OSHA hearings, and implement the customized strategies that can reduce classifications and consequences. We can also provide the counsel and support to help businesses ensure compliant workplaces and policies moving forward.
If you wish to learn more about contesting the classification of an OSHA citation, or would like to speak personally with an attorney about a potential case, do not hesitate to call (713) 489-2028 or contact us online today.