Transcript Document 7448273

OSHA – Brief Overview
“WHAT IS OSHA?”
OSHA: FEDERAL AGENCY
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Part of the Department of Labor (“DOL”)
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Enforces Occupational Safety & Health
Act of 1970 (29 U.S.C. § 650 et seq.
NEW ADMINISTRATION
Obama Administration
intends to make OSHA
compliance a top
enforcement priority
Current OSHA enforcement trends:
A.
B.
C.
D.
Increased budget for OSHA
inspectors/programs
More aggressive penalties
National emphasis program on
injury/illness recordkeeping
Pending legislation: Protecting
America’s Workers Act of 2009
Protecting America’s Workers Act (pending)
1.
2.
3.
Amends OSH Act
Increases protections for whistleblowers
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
STATE OSH AGENCIES
Several states have
similar agencies which enforce
state safety laws, e.g. California
(“Cal OSHA”)
WHAT OSHA DOES
OSHA issues rules, regulations,
safety standards and conducts
workplace safety inspections.
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
OSH ACT CASE LAW
“Multi-employer Worksite Doctrine”
OSHA:
“WHO ARE THESE GUYS?”
OSHA:
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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)
TYPES OF INSPECTIONS
“WHY ARE THEY HERE?”
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
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Other Targeting Programs
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Alliances (e.g., AESC alliance): industrywide standards
Consultations: small business/on-site
compliance help
SHARP: recognition program for smallemployers
Strategic Partnerships: agreements to
prevent specific hazards
VPP: Voluntary Protection Program
SCOPE OF INSPECTION
“WHAT ARE THEY LOOKING FOR?”
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
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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
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WORK-SITE INSPECTIONS
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
CITATIONS
“De Minimus”
 “Other Than Serious”
 “Serious”
 “Willful”
 “Failure To Abate” Hazard
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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
FOLLOW-UP INSPECTIONS
OSHA may check to verify
violation has been corrected
CONTESTED CITATIONS
“Notice of Contest”: Within 15 business
days
 Solicitor of Labor will file complaint
 Case will be assigned to ALJ
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SIMPLIFIED PROCEEDINGS
Lesser citations involved
 Penalties less than $20,000
 Fatality not involved
 Small employer (less than 40 employees)
 Not willful or repeat citation
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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
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TRIAL
Conducted by ALJ (non-jury)
 Similar to civil court trial procedures
 Employer defenses are case specific
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COMMON DEFENSES
Statute of Limitations (6 months)
 Unpreventable employee misconduct
 “Greater hazard” (if comply with standard)
 Cited standard does not apply
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RETALIATION/CRIMINAL
CONSIDERATIONS
§11: Retaliation prohibited
 Criminal penalties may apply
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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
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RESOURCES
“Where Can We Find Help?”
RESOURCES
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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
CONCLUSION
New enforcement emphasis + new laws
+ stiffer penalties = Greater $$ Risk