By Robert G. Chadwick, Jr.,  Partner, Freeman Mathis & Gary, LLP.

Can OSHA issue citations against an employer even without a formal inspection, and the requisite components of an opening conference, record inspection, walk-around inspection, employee interviews and closing conference? As demonstrated by citations recently issued by the agency against Great White Constructions, Inc., the answer to this question is yes. As long as violations are in plain view from outside the worksite, citations can be issued.

On February 3, 2017, a view from a public road allowed an OSHA inspector to observe two adjacent worksites in St. Augustine, Florida where Great White was a roofing contractor. From this vantage point, the inspector photographed 11 employees working on the roof tops. These photographs formed the basis for 8 citations on August 1, 2017 proposing $850,128.00 in fines as to one worksite, and 6 citations on August 1, 2017 proposing fines of $673,582.00 as to the other worksite.

Interestingly, separate citations were issued as to each of the employees exposed to fall hazards under 29 C.F.R. § 1926.501(b)(13). Each of 11 employees was identified by description, not name. For instance, six employees at one worksite were identified as follows:

* “male employee wearing a straw hat, white striped shirt, tennis type shoes, and tan cargo type pants”

* “male employee with black hair, smoking a cigarette, wearing a blue shirt, and blue jeans”

* “male employee with black hair, wearing a red baseball cap, a white long sleeve shirt, and blue jeans”

* “male employee with black hair, wearing a black baseball cap, a black color shirt, and blue jeans”

* “male employee wearing a straw hat, blue striped shirt, and blue jeans”

* “male employee with black hair, wearing a baseball cap turned around, an aqua color shirt, and tan cargo type pants”

The August 1st citations referenced 12 previous inspections for which Great White had been cited for similar violations. This history may not be typical for most employers.  The citations are also mere allegations, and not final orders of the Occupational Safety & Health Review Commission. Still, Great White’s experience on February 3, 2017 serves as a cautionary tale for other employers. Just because OSHA is not knocking on your door does not mean it is not watching you.