IN 2017, OSHA ISSUED MORE THAN 150 CITATIONS IN EXCESS OF $100K

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

According to OSHA’s website, more than 150 citations issued by the agency in 2017 proposed fines in excess of $100,000. More than 30 of these citations proposed fines in excess of $200,000.

An increase in the number of OSHA inspections resulting in six-figure penalties was predicted in a previous article by this author. After all, the Federal Civil Penalties Inflation Adjustment Improvements Act of 2015 specifically authorized increased penalties by many federal agencies, including OSHA.

For employers, there are nevertheless three important takeaways from the enforcement data published by OSHA. First, any questions as to how OSHA would use its new penalty authority are being answered. The agency has regularly embraced and used its new authority.

Second, OSHA’s enforcement philosophy has continued despite the change in administration. Citations and fines remain cornerstones of the agency’s approach to workplace safety. Employers which may have hoped for a more collaborative approach in the new administration saw nothing in 2017 to buttress this hope.

Finally, the financial stakes for employers in OSHA inspections have been raised. One of the purposes of this author’s blog, How to Survive an OSHA Inspection, is to alert employers to the benefits of being prepared for an OSHA inspection and being diligent during an inspection. These benefits can include avoided citations or reduced penalties. The more OSHA penalties rise, the more sense it makes for employers to be prepared for, and be diligent during, OSHA inspections.

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WHAT DOES AN EMPLOYER NEED TO KNOW ABOUT AN OSHA CLOSING CONFERENCE?

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje & Ladik, PLLC.

At the conclusion of an inspection, OSHA generally conducts a closing conference. The closing conference may be conducted in person at the employer’s worksite or by telephone. Most closing conferences are conducted by telephone.

What is the Purpose of the Closing Conference?

The closing conference provides the OSHA Compliance Safety & Health Officer (“CSHO”) the opportunity to review apparent violations and other pertinent issues, if any, found during the inspection, including input for establishing abatement dates.

Who Can Attend the Closing Conference?

OSHA conducts the closing conference with the employer and employee representatives, if any. As with the opening conference, the employer can be represented by legal counsel at the closing conference.

What Should an Employer Do at the Closing Conference?

An employer should generally do three things at a closing conference. First, the employer should listen carefully to OSHA’s findings. Depending upon the circumstances, it may be worthwhile to inquire as to specific information supporting an alleged violation. The employer can then use this information to formulate a strategy for responding to the anticipated citation. Getting a head start on this strategy avoids the time crunch presented by the short period – 15 working days – to respond to the citation once issued.

Second, the employer should endeavor to determine whether OSHA has all the information requested during the inspection. OSHA citations are often based misunderstandings as to what was or was not provided to OSHA. The closing conference provides the opportunity to avoid citations based upon such misunderstandings.

Finally, the employer should ask about hazards that need to be abated. Prompt abatement of hazards identified by OSHA has two advantages. First, prompt abatement can be cited as a basis for reducing a proposed penalty. Second, getting a head start on abatement avoids the time crunch which can be presented by the short abatement deadlines typically found in citations.

What Should an Employer Not Do at the Closing Conference?

Generally, an employer should avoid arguments with the CSHO as to alleged violations. As with other components of an OSHA inspection, what the employer says during a closing conference can be used against it in issuing citations and proposed penalties.

The authority of a CSHO to modify a finding during the closing conference, moreover, is limited. See Field Operations Manual pp. 3-20-23. More authority to modify citations is vested with the Area Director or Assistant Area Director during the informal settlement conference.

How Long after the Closing Conference Will Citations Be Issued, if at All?

The Occupational Safety & Health Act provides “no citation may be issued … after the expiration of six months following the occurrence of any violation.” 29 U.S.C. § 658(c). Accordingly, a citation may be issued several days or several months after an OSHA inspection.