Mid Atlantic Real Estate Journal — Pennsylvania — June 14 - 27, 2013 — C
www.marejournal.com
C entral PA By Shannon O. Young, Harmon & Davies Contesting OSHA citations may be worth your while
S
ummer is the season of building, but booming construction projects
In fact, a fairly recent fed- eral court decision held that Willful violations require more than a showing of “mere negligence.” What this means is that as long as an employer is acting in good faith to comply with OSHA regulations, even if OSHA later determines that the employer’s actions fell short of what was required under OSHA regulations, the em- ployer should not be sited for a Willful violation. The case of Sec’y of Labor v. K.E.R. Enters. Inc. illus- trates how contesting an
OSHA citation may payoff. In the K.E.R. Enterprises case, the employer was pres- sure-testing a water pipe. The project foreman noticed a small leak near what is referred to as a restraining gland and instructed two workers to tighten certain T-bolts on the restraining gland. During this process, the pipe exploded, sending fragments flying. Both of the foreman’s legs were broken and three other workers were injured as a result. OSHA cited the employer with a Serious violation of
the Occupational Safety and Health Act for exposing its employees to the hazard of being struck by pipe frag- ments. The employer suc- cessfully contested the cita- tion, resulting in the Serious violation being vacated. An administrative law judge found that the employer took proper actions and that there was insufficient evidence to support an as- sertion that anyone involved should have recognized that it was a hazard to tighten T-bolts to stop a small leak without first depressurizing the pipe.
In sum, contesting an OSHA citation may be eas- ier than you think and the benefits may pay for them- selves. If you are considering contesting an OSHAcitation, consult with an attorney who has experience handling OSHA citations. This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a gen- eral understanding of the law only, not to provide specific legal advice. n
al so mean OSHA i n - s p e c t i o n s and possible citations. As a construc- tion law and emp l o y e r - s ide l abor and employ-
Shannon O. Young
ment law firm, our office routinely advises clients who have received OSHA citations. Where the cir- cumstances warrant it, we advise clients to contest the citation, which contest may result in a reduction in the classification of the violation, a reduction in the penalty, or both. Contesting an OSHA cita- tion isn’t an overly compli- cated process, but it is time sensitive in that a notice of intent to contest must be submitted within 15 working days after receipt of the cita- tion. There are two main rea- sons why we advise clients with a basis for challenging the citation to contest it: (1) to have the dollar amount of their penalty reduced; and (2) to have the classification of the violation reduced. There are four levels of violations with the worst be- ing Willful and Repeat and the other two being Serious and Other than Serious. Fines associated with Will- ful or Repeat violations are substantially greater than fines associated with Serious or Other than Serious viola- tions. If a Willful or Repeat violation sticks, it can ad- versely affect the company in the future. Even if a com- pany is tempted to accept the classification of a violation as Willful or Repeat and pay the penalty, due to the cumula- tive nature of violations, this decision may prove costlier than the company antici- pated because future penal- ties may be steeper because of the classification of past violations. In deciding to contest a citation, keep in mind that OSHA sometimes misclas- sifies a violation. By chal- lenging the citation, the penalty, the classification, or both might be reduced.
If keeping up with legal issues that affect your business is at the bottom of your list, don’t worry. It’s at the top of ours.
With decades of experience in representing businesses, we know the fine points of federal and state regulations and policies affecting your company. We understand the importance of deadlines, details, and proper disclosures. Our expertise can help ensure that you achieve both legal compliance and your business goals. Find out how our sound legal guidance and proven practical advice can meet the needs of your business.
2306 Columbia Ave., Lancaster, PA 17603 717.291.2236 www.h-dlaw.com
Let’s Work TogeTher
Made with FlippingBook Annual report