Deciding Whether to Contest an OSHA Violation, Part 3

5. The Potential for Repeat Violations
Not all OSHA violations carry the same consequences. It depends on how OSHA characterizes the violation.

A repeat violation can carry a fine of up to $70,000 per violation. To establish a repeat violation under section 17(a) of the OSH Act, the Secretary of Labor ("Secretary") must prove that:

• The cited employer is the same one that was cited previously.
• The previously cited employer was cited at least once before, and within three years of the time that the previous violation became a final order.
• The earlier citation became a final order of the Occupational Safety and Health Review Commission.
• The earlier citation was for a substantially similar violation.

Given the harsh penalty range for repeat violations, employers must take care to evaluate the potential for future repeat violations. This is especially true since "substantially similar violations" may be committed at different locations or job sites of the same company. It is also worth noting that if the past and present violations are of the same OSHA standard, then the burden to prove the "substantially similar" element shifts from the Secretary to the employer.

6. The Risk of Collateral Litigation
All employers must be aware of the laws of the states where they conduct business. These laws will often dictate the type of collateral litigation an employer may face, directly or indirectly, as the result of OSHA violations and/or workplace accidents.

State workers' compensation statutes generally prohibit personal injury actions by employees against employers. However, third-party lawsuits (e.g., those against architects, engineers and property owners, products liability lawsuits, etc.) are a very common byproduct to workplace accidents. In addition, some states impose heightened damages against employers in connection with workplace accidents.

For example, in Massachusetts, employees may receive double compensation if their injuries are the result of "serious and willful misconduct" (see M.G.L.A. c. 152, §28). Under this statute, the employer - not his or her insurer (if any) - must pay the extra compensation. Thus, employers affected by such statutes must be especially careful to avoid "willful" OSHA citations.

7. The Impact on Labor Relations
When employers evaluate whether and how they contest OSHA citations, they must also consider their relationship with respective labor unions. Maintaining a positive relationship with labor unions is a goal that should be shared by all employers. Contesting OSHA citations may have an adverse impact on these relationships. Employers must be aware of such impacts and govern themselves accordingly.

While the list of seven factors I've outlined is certainly not exhaustive, it briefly covers the issues every employer should consider when deciding to contest OSHA citations.

Seven Factors to Consider When Deciding Whether to Contest an OSHA Violation

• The strength of the citation
• The potential fine
• The abatement requirements and their associated costs
• Whether there's an adverse effect on your competitive position
• The potential for repeat violations
• The risk of collateral litigation
• The potential impact on labor relations

The Canadian Perspective
The author's analysis is completely relevant to Canadian companies, even if the terminology he uses isn't. As we noted last month, Canadian employers, like their American counterparts, have a right to contest Canadian Occupational Health and Safety (OSH) violations. The factors the author sets out in his series are the same ones Canadian employers should consider when deciding whether to exercise this right.