Masonry Magazine January 2006 Page. 44
OSHA
Deciding Whether to Contest an OSHA Violation, Part 3
James F. Laboe, Esq.
Orr & Reno
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.
In Parts 1 and 2 of this series, I discussed four of the seven factors for employers to consider when deciding whether to contest a U.S. Department of Labor Occupational Safety and Health Administration (OSHA) violation. Now we'll look at the final three. There's a checklist of all seven factors at the end of this article in case you missed one of the earlier installments.
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.
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