In the summer of 2018, someone snapped a photo of a construction worker in Ithaca, NY. He was working without a harness or guardrails to protect him from falling, and he was photographed walking across scaffolding while holding a wooden board. That photo was sent to OSHA, which launched an investigation into the incident shortly thereafter. By January 2019, citations for serious violations were assessed on the general contractor and the scaffolding company, a subcontractor. Tompkins County Workers’ Center has since claimed responsibility for submitting report to OSHA.
William H. Lane, a construction management company in Binghamton, NY, was cited for inadequate protection from falling objects and assessed a fine of $6,630. CFI Sales and Service, the scaffolding subcontractor from Brackney, PA, was cited for inadequate overhead protection, a lack of safe access to scaffolding, and inadequate fall protection and assessed a fine of $22,542.
Lane settled, reducing fine to $4,000. It’s expected that OSHA will close the case against the contractor once payment is received, along with proof that the problem has been fixed. CFI decided to appeal the citation and fine to the Occupational Safety and Health Review Commission. In 2018, the top five most frequently cited OSHA violations were: fall protection, hazard communication standard, scaffolding, respiratory protection and the control of hazardous energy (lockout/tagout).
How OSHA Receives Cases
OSHA picked up this case as a referral; that is, someone took the photo, and someone (not necessarily the same person) decided to report it to OSHA. The agency accepts referrals from other federal agencies as well as third-parties. It’s a sobering reminder that even if an employer is not watching closely what’s going on at a worksite, someone else might be. Anyone can make a referral to OSHA.
While OSHA doesn’t open an inspection for every referral, in cases like this, where the violation is considered serious and an employee could be gravely injured or killed on the job, it’s reasonable to expect that the agency will look into it, especially if a photo like this is widely publicized or shared on social media.
Settlement vs Appeal
Newspaper analysis shows that employers stand a roughly 50-50 chance of having the penalties that came with their citation reduced if they settle the citation but rarely without remediation of the initial issue, at least. If an employer wants to appeal the citation instead, they appeal to the Occupational Safety and Health Review Commission (OSHRC).
There are two types of reviews possible, and at two levels. Very broadly speaking, conventional proceedings happen like a court case while simplified proceedings look a lot more like arbitration, although not every case is eligible for the simplified proceedings. Employers may have legal counsel represent their interests although it isn’t required; the Department of Labor does have legal counsel represent the interests of the Secretary of Labor.
Initially, the judge who hears the case can affirm, modify or vacate the citation with a written decision. If either party is not satisfied, that decision can be appealed to a 3-commissioner panel, who may or may not take the case. Additional legal remedies may be available through the U.S. courts. Either party that believes itself to be adversely affected or aggrieved may also appeal the decision of the three OSHRC Commissioners to the Circuit Court of Appeals or the U.S. Court of Appeals, depending on the circumstances of the case.
Penalties as Deterrents?
There is a concern among some that employers may see OSHA penalties as simply comparable to ordinary operating costs instead of being punitive in nature. There’s also the publicity that may factor into an employer’s point of view. This point of view makes the case that if other employers are aware of what could happen because one employer is made an example of, other employers will be less likely to make the same mistakes. OSHA’s approach may be to increase awareness of an issue even though it appears to be public shaming. OSHA maximum penalties increased in January 2019 and are expected to do so in keeping with inflation on an ongoing basis at the beginning of each year.
How Employers Can Protect Themselves
Know the OSHA regulations that affect your industry. Stay on top of changes to regulations as well as penalties. Take advantage of the compliance assistance outreach that OSHA offers. Participate fully in OSHA inspections, and correct violations as soon as possible if not immediately. Follow all reporting rules and procedures in the event of workplace illness or injury. Remember, there are deadlines for filing reports in the event of a serious workplace injury, illness or fatality. If cited, consider your options, whether that’s to pursue a settlement and reduced fine or appeal to the OSHRC. The circumstances of different incidents may require different courses of action.
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