Masonry Magazine November 2005 Page. 46
OSHA
Deciding Whether to
Contest an OSHA Violation,
Part I
James F. Laboe, Esq.
Orr & Reno
A few months ago, Hal Engel wrote an article for SafetyXChange, an online community for safety professionals, explaining how to file a Notice of Contest if you want to challenge a U.S. Department of Labor Occupational Safety and Health Administration (OSHA) citation (see "Hang onto Your Right to Challenge an OSHA Citation," SafetyXChange Compliance Weekly, www.safetyxchange.org. July 11 and 18, 2005.) As a follow-up to Engel's piece, I'd like to address the following questions:
Should employers even bother to make the effort to contest a citation in the first place? When does a challenge make sense? And when is it simply better to accept the citation and move on?
To Challenge or Not to
Challenge
The decision about whether to contest an OSHA citation is one that employers need to approach with care and deliberation. Contesting an OSHA citation isn't easy it takes time, money and effort. And success is far from guaranteed. But some employers will rush into a contest without fully understanding what's involved.
Conversely, failing to challenge an OSHA citation can lead to unforeseen The decision about whether to contest an OSHA citation is one that employers need to approach with care and deliberation.
and adverse consequences down the road. Many employers fail to recognize, let alone analyze, these consequences. This is especially true when the size of the civil penalty isn't significant. Many employers will simply accept the citation and "pay the two dollars in an effort to make nice" with their local OSHA area office and/or labor unions.
The Canadian Perspective
With the exception of the technical details, such as penalty amounts and statutory citations, this article is relevant to Canadians as well.
Canada's Occupational Safety and Health (OSH) laws also afford employers the right to contest the laying of charges or issuing of orders. Thus, employers in Canada confront the same decision as their American counterparts: to contest or not to contest. Although the deadlines and procedures aren't exactly the same as they are in the United States (and vary from province to province), contesting an OSH charge or order entails a serious commitment of time and energy just as it does in the United States.
The factors that the author analyzes in this series are the same ones that Canadian attorneys would counsel their clients to consider in deciding whether to fight back or accept the penalty.
In Canada, the standard of proving an OSH violation is also by preponderance of the evidence (over 50%). In addition, there are affirmative defenses Canadian employers can use to contest a charge or order, most notably due diligence. Thus, the author's analysis also applies to Canadian contractors.
Of course, employers in Canada need to consider the penalty amounts when making their decision as well.
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Masonry
November 2005