If you’re running a dangerous construction business where people can get injured or even killed easily, OSHA citations might be a needed wake-up call. However, if you’re like most small to mid-size businesses, you may not have given OSHA much thought at all. After all, only about one percent of workplaces get inspected each year. Besides, all those regulations can be a big pain to decipher.
Undoubtedly, it’s easier to accept getting cited for an OSHA violation when you’re in the wrong. However, there’s an enormous difference between a ‘willful violation’ and ‘unpreventable employee misconduct’ when it comes to punishment. If you aren’t a lawyer and up-to-speed on OSHA cases, you’ll be hard-pressed to get the best outcome by going it alone. That’s why your first—and only—step should be to get expert help after getting cited for an OSHA violation.
Choose Counsel Carefully
Your general business attorney may have a wealth of experience and skills related to OSHA citations, particularly if they’ve represented not just construction companies but also manufacturing and mining.
However, if their experience with OSHA isn’t recent and fairly extensive, you might consider working with counsel that specializes in OSHA cases. OSHA typically cites a business with more than one violation, and the fines are getting larger, according to Paul J. Schumacher, managing director at Dickie, McCamey & Chilcote, P.C. He says that experienced OSHA lawyers know the regulations and often negotiate lower penalties.
Still convinced you can go it alone? Maybe these points will add perspective.
You’ve Probably Been Overly Cooperative During Inspections
You or your representative will probably provide more information than needed during an inspection. It’s common for small businesses to assume if they establish a nice rapport with an inspector, little things won’t become an issue. Yet, as claims Jason Mills, labor and employment partner with Morgan Lewis, it’s unwise to get misled by an inspector’s reasonableness. You should assume that if there is a violation, you’ll get a citation.
Poorly controlled information flow leads to more difficulties when it’s time to settle, according to Stephen Yohay at Arent, Fox, Kintner, Plotkin & Kahn. Don’t provide information not asked for, and do keep a record of everything you provide. When you don’t provide requested information, you should have good reasons.
It’s generally best to have the job site safety specialist (or the closest role you have to that) accompany the inspector. They know the safety program and can supply the most appropriate records. On surprise inspections, however, the right person might not be immediately available, so others may feel a sense of urgency and decide to work with the inspector. Worse still, they might just allow the inspector to wander the job site alone.
A surprise inspection should have a specific stated purpose and should stay focused on that purpose without straying into other areas. Without knowledgeable people assisting the inspector, you may have already lost some of your legal rights.
Inspectors Might Have Made Mistakes
If you spend time reading OSHA regulations, you’ll see there are often exemptions and exceptions to rules. If all the conditions don’t apply, then it’s possible you’re not in violation. Someone well-acquainted with the regulations can spot these issues quickly and deal with them before a post-inspection, or at a scheduled informal conference. When you don’t know OSHA regulations, you’ll likely miss little details like the wrong regulation being cited.
You’ll Slip Up in the Informal Conference
Even though it’s called an informal conference, it’s still a legally binding event.
“This is not the time to make any admissions, concede on any points, or acknowledge the company has violated any rules or regulations,” writes Anthony Tilton, construction law associate at Trent Cotney, P.A.
The value of informal conferences is that they provide ways to improve the outcomes for you. This can be tricky, though. Talking about deleting or reclassifying citations, for instance, requires legal finesse to avoid admitting guilt or making concessions.
You’ll Underperform in Your Notice of Contest
A Notice of Contest is a way for you to have your day in court when you think the citations aren’t right. Knowing you have this option though is just the first step. Next, you’ve got to build your case.
You’ll have to work out your defense on the citations and deal with citation classifications, abatement methodologies, time periods, penalties, and a host of other legalities. If you don’t get it right, you’ll not only compromise your day in court, but you’ll also miss the chance for OSHA to agree to a settlement more in line with your interests and forego the court action altogether. Bottom line: Get an attorney who knows OSHA when you get cited for an OSHA violation. Let them work with you so that you get the least punitive outcome possible.