May 8, 2016

Industry Backs ‘Abatement Before Citation’ Bill, But Says Right To Contest Should Be Preserved

Industry advocates are voicing strong support for a measure put forth by Rep. Vickly Hartzler (R-MO) to alter OSHA enforcement by letting employers sidestep citations for non-serious regulatory violations as long as the alleged hazards are abated during a “grace period,” but there is also concern that the bill if enacted might discourage employers from contesting citations they believe are flawed.Agreeing to abate citations for minor concerns if compliance officers are believed to be wrong on either the conditions in the facility or the relevant regulatory code, or both, could have the unintended consequence of setting up the employer for claims of “repeat” violations if OSHA comes around again, one attorney says.Hartzler’s bill provides for a period to abate alleged violations before OSHA issues proposed penalties that can run up to $7,000 each (see related story).

The measure amends Section 10(a) of the OSH Act by inserting the text: “No such penalty may be assessed for a violation that is determined not to be willful, repeated, or serious as described in section 17(k), during the period of time fixed for abatement of the violation in the citation issued under section 9(a) or final order issued under this section, as the case may be, and no such penalty may be assessed for such a violation if such violation shall have been abated by the employer in accordance with such citation or final order before the end of such time period.”

Hartzler calls the change a common-sense measure, but worker advocates wonder if the issue prompting Hartzler’s legislation may be illusory without more evidence that OSHA is using up scarce resources by nitpicking small violations.

One industry lawyer tells Inside OSHA Online the problem is real, and “that’s something I’ve been talking about for a long time. It makes no sense to pound people with OSHA’s interpretation of the statute with penalties” and then tell them OSHA has discretion authority over what to cite. “There’s a need for enforcement, but I think OSHA’s interpretation of the statute … is just flatly wrong.”

The attorney argues that OSHA need not cite up to its maximum penalties for non-serious violations and that there are many site-specific considerations when an inspector goes into a workplace. “You’ve got to take into account what’s going on in the place,” the sources says, but even then resources at OSHA are so constrained that “in reality we have to rely on voluntary compliance.”

A different attorney, Eric Conn, OSHA chair at the workplace safety group of Conn Maciel Carey, says Hartzler’s bill tackles “a real problem” and points to data showing that the percentage of “in-compliance” inspections, or those resulting in no citations, generally hovers around 25 percent. “When OSHA visits your facility there is a 75 percent chance they are going to issue at least one citation. They have to prove to their boss that they’re there,” he says, and that can mean “minor, trivial violations even if there is no real basis for it.”

Hartzler’s bill “creates a real incentive for employers to take abatement seriously,” Conn adds. “The purpose of the [OSH] Act and the purpose of OSHA is to help employees, and collecting penalties doesn’t help employees.” Still, Conn sees a bigger problem, saying, “OSHA too often inflates” how it characterizes infractions and thus, violations that “clearly” should be classified as other than serious, OSHA calls serious.

“I don’t think this is a huge deal,” he says, referring to the non-serious penalties. “Even though they can issue penalties up to $7,000 … you really never see that.”

Conn expresses concern, however, that the congresswoman’s bill could actually create a potential disincentive to contest flawed citations. That is because, he says, given the incentive of abatement without penalties, “you’re more likely to accept the violation that’s not valid,” thereby setting the employer up for repeat citations. “Perhaps the solution is that the bill allows for … preserving the right to contest a violation.” He suggests the bill be amended to permit employers to contest larger citations.

Steve Wodka, a labor-side attorney in Little Silver, NJ, expresses doubt that the problem cited by Hartzler rises to the level of requiring a legislative fix. “Federal OSHA simply doesn’t have the resources to go out and be citing the employer for minor things that, as the congresswoman says, don’t have any impact on worker health and safety,” he says. “There’s really an initial question here as to whether these things are going on” and whether OSHA is using limited resources effectively. Hartzler has contended that employers in her Missouri district see it as an issue.

“That’s really the first question, is this really happening, and if it is, OSHA ought to take those resources out there in Missouri and put them somewhere else where people are clamoring for inspections,” Wodka says.

Hartzler’s legislation awaits markup in the Education and the Workforce Committee. — Christopher Cole ()

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