OSHA: FEDERAL AGENCY
Part of the Department of Labor (“DOL”)
Enforces Occupational Safety & Health Act of 1970 (29 U.S.C. § 650 et seq.
Current OSHA enforcement trends:
A. Increased budget for OSHA inspectors/programs
B. More aggressive penalties
C. National emphasis program on injury/illness recordkeeping
D. Pending legislation: Protecting America’s Workers Act of 2009
Protecting America’s Workers Act (pending)
1. Amends OSH Act
2. Increases protections for whistleblowers
3. Increases penalties for certain violations• $50,000 per violation – fatalities or serious injuries
• $250,000 max. penalty (increased from $70,000)
4. Felony sanctions for willful violations causing death or serious injury
Several states have
similar agencies which enforce
state safety laws, e.g. California
(“Cal OSHA”)
STATE OSH AGENCIES
OSHA issues rules, regulations,
safety standards and conducts
workplace safety inspections.
WHAT OSHA DOES
HEALTH AND SAFETY STANDARDS
Nearly all OSHA health and
safety standards are located
at 29 C.F.R. Parts 1910
(General Industry)
“General Duty Clause”
Section 5(a)(1) of OSH Act “catch-all” provision prohibits employers from exposing
employees to recognized hazards that can cause death or serious physical harm
OSHA: Sect’y of Labor Ass’t Sect’y of Labor Occ. Safety & Health Review Commission Regional Administrators Area Office Directors Compliance Safety & Health Officers Solicitor of Labor (OSHA’s attorney) Administrative Law Judges (“ALJs”)
(decide contested cases)
Programmed Inspections
Targets “high hazard” industries
Site-Specific Targets (“SSTs”) (“high-incident” employers)
Enhanced Enforcement Program (employers who repeatedly ignore OSHA)
Non-Programmed Inspections Employee complaint Referral from another agency Report of death or serious injury “Drive-bys”: OSH detects imminent danger or condition
Other Targeting Programs Alliances (e.g., AESC alliance): industry-
wide standards Consultations: small business/on-site
compliance help SHARP: recognition program for small-
employers Strategic Partnerships: agreements to
prevent specific hazards VPP: Voluntary Protection Program
FIRE RESISTANT CLOTHING (FRC)
29 C.F.R. § 1910.132(a): PPE, including FRCs required when employee exposed to recognized fire hazard (usually welding, grinding, “hot work” in the presence of flammable or combustible liquids/gases)
FRC STANDARDS
See “Recommended Practices and Guidelines” for Oil and Gas Well Drilling, Servicing and Storage (www.osha.gov/SLTC/oilgaswelldrilling/drillingservicing.html)
Viewed as “industry standards” (not regulations)
Denim/cotton clothing recommended
WORK-SITE INSPECTIONS
Usually involves six steps:
1. Compliance officer announces presence
2. Opening conference
3. “Walk around” tour of site
4. Employee interviews
5. Officer reviews employer’s records
6. Closing conference
POSTING
Citation must be posted near work-site at least 3 days or until violation abated whichever is later - $7,000 fine
INFORMAL CONFERENCE
“Last chance” to settle before litigation
Employer must request
Must be held before notice of contest deadline (within 15 working days)
INFORMAL SETTLEMENT AGREEMENT
Contains settlement terms reached at informal conference – request “no admission of liability” clause to prevent agreement from being used as an admission in subsequent litigation.
UNCONTESTED CITATIONS
Uncontested citation becomes final order Employer must abate the hazard cited Employer must pay penalty assessed
CONTESTED CITATIONS
“Notice of Contest”: Within 15 business days
Solicitor of Labor will file complaint Case will be assigned to ALJ
SIMPLIFIED PROCEEDINGS
Lesser citations involved Penalties less than $20,000 Fatality not involved Small employer (less than 40 employees) Not willful or repeat citation
SETTLEMENT
ALJ will encourage settlements Settlement conference required Citations/penalties are negotiable Penalties: Up to $7,000/violation or 10x
amount for repeat/willful violations
TRIAL
Conducted by ALJ (non-jury) Similar to civil court trial procedures Employer defenses are case specific
COMMON DEFENSES
Statute of Limitations (6 months) Unpreventable employee misconduct “Greater hazard” (if comply with standard) Cited standard does not apply
CRIMINAL PENALTIES (§17 OSH ACT)
Willful violation resulting in employee’s death
Giving advance, unauthorized notice of OSHA inspections
Making false statements or false records Assaulting/killing OSHA investigator
conducting an inspection
RESOURCES OSHA website: www.osha.gov DOL website: www.dol.gov American National Standards Institute: www.ansi.org National Safety Council: www.nsc.org Health and Safety regs.: 29 C.F.R. Part 1910 OSHA “E-Tool” for Oil and Gas Well-Drilling and
Servicing: www.osha.gov/SLTC/etools/oilandgas/generalsafety