Occupational Safety and Health (OSHA)

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Overview

Our Occupational Safety and Health Practice provides comprehensive services to businesses, employers, and trade associations in relation to the Occupational Safety and Health Act (“OSHA”).

We have handled scores of contested cases before the Occupational Safety and Health Review Commission (“OSHRC”) and we offer training to employers on how to manage OSHA inspections. We also have experience in representing businesses before the Office of Administrative Law Judges (“OALJ”), the Administrative Review Board (“ARB”), and the federal courts.

Representative Matters

  • Successfully represented a small arms manufacturer that received 54 willful, egregious, and serious citations from OSHA related to an explosion that resulted in the death of two employees and the largest OSHA fine in New Hampshire history ($1.2M). The bulk of the citations involved OSHA’s process safety management (PSM) standards. The employer’s owner avoided the threat of personal liability.
  • Successfully represented a painting contractor that received 20 willful and serious citations from OSHA related to the death of a worker who fell 90 feet from a water tower resulting in $187,000 in fines. The employer was primarily cited for inadequate fall protection. OSHA reduced the fines by more than one-third.
  • Successfully represented a large national manufacturer that experienced a flash fire/explosion causing second degree burns to one of its employees. OSHA cited the company for violating the General Duty Clause and subsequently withdrew the citation because the hazard of fire and/or explosion was not “known” to the employer or the employer’s industry.
  • Successfully represented a privately held power producer that received 12 serious citations related to an industrial accident that resulted in the amputation of an employee’s arm. OSHA withdrew all but 3 citations and reduced the total penalty from $33,750 to $7,000.
  • Successfully represented a national framing contractor that received OSHA citations (including a repeat) for allegedly failing to have adequate fall protection. OSHA withdrew half of the citations and reduced the fines by two thirds.
  • Successfully represented one of the largest energy providers in North America that received multiple OSHA citations (including a repeat) for alleged fall and drowning hazards. OSHA withdrew half of the citations (including the repeat) and reduced the total penalty from $17,500 to $4,500.
  • Following a trial and an appeal, the OSHRC upheld the administrative law judge’s decision to vacate OSHA’s attempt to require the employer to adopt machine specific lock-out/tag-out (“LOTO”) procedures. In addition, the employer successfully asserted the unpreventable employee misconduct defense by a supervisor. All citations had been vacated against the employer. Secretary of Labor v. Interstate Brands Corporation, Docket No. 00-1077 (April 24, 2003).

Industries Represented

  • Blasting
  • Commercial Motor Carriers
  • Energy Companies
  • Health care
  • Manufacturing, heavy and light
  • Power Transmission and Distribution
  • Printing
  • Retail

FAQs

Should legal counsel assist in the inspection?
Each inspection is different, so the need for counsel will depend on the circumstances. Also, the level of counsel’s involvement will vary with the circumstances. It is important to understand that an OSHA inspection is the equivalent of the beginning of the litigation discovery process. OSHA has the right to obtain documents and other evidence, and interview witnesses. It also has the right to physically inspect the facility, and to take photographs and videotapes.

Is OSHA entitled to the requested documents as a matter of law?
Under OSHA standards and regulations, there are certain documents that an employer is required to make available to OSHA upon request. Failure to produce them can be a separate violation.

Is any of the information privileged or trade secret/business confidential?
Privileged documents may be withheld from production. Trade secret or business confidential information should be marked as such.

How does a witness prepare for an interview by OSHA?
Prior to the interview, counsel or a management representative should meet with the employee if the employee is willing to have such a meeting, and the meeting does not create labor relations problems.

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