In its recent publication 16 Legal Tips: Handling OSHA Citations the Right Way, Intelivert asked 16 top legal experts for their tips to safety professionals who may find themselves on the receiving end of an OSHA citation. Three of those experts were Jackson Lewis attorneys – Carla Gunnin in our Atlanta office, as well as Tressi Cordaro and Nickole Winnett in the Washington, DC office.
Tressi Cordaro pointed out that “OSHA is not always right.” Her advice is to check whether the cited standard applies to your particular situation, read through the standard carefully looking for exceptions, checking definitions, and raising any concerns with OSHA during the informal conference. Her closing words of advice: “But don’t just assume the standard applies because OSHA cited it.”
Carla Gunnin cautions clients that OSHA needs to provide proof. Ms. Gunnin says that OSHA is increasingly issuing citations under the General Duty Clause. However, citing under the General Duty Clause increases OSHA’s burden of proof. OSHA must prove that not only was there a recognizable hazard but also that there is a feasible abatement method.
Nickole Winnett’s advice is to “Consider before you settle.” Ms. Winnett warns that however tempting OSHA’s settlement offer of a reduced penalty may be in the short term, it may prove costly in the long term. OSHA may use an organization’s citation history to support issuing Repeat and Wilful classifications and higher penalties in the future.