CMAdvisor - January/February 2010 - 19

Following the inspection, a closing conference with the affected employers and union representatives (if applicable) will provide for discussion about any apparent violations, the employers’ rights and responsibilities, as well as the handling of any citations that may be issued or penalties imposed. Any noted violations should be abated promptly and, upon the CSHO’s departure, a safety meeting should be convened to address whatever violations, issues or concerns were identified during the inspection. Although citations and proposed penalties may be forthcoming, (both of which can be addressed through established legal processes), knowing what to expect and appropriately managing an OSHA inspection may minimize hefty penalties and projectdelaying sanctions. Construction Managers need to be proactive and prepared to be visited by OSHA because all indications are that they’ll be coming! John Heuer is an equity partner in the Los Angeles-based firm of Gibbs, Giden, Locher, Turner & Senet LLP and is the current National Chair of CMAA’s Legal Committee. He can be reached at jheuer@gglts.com. Waiting for the shoe to drop By Raoul M. Ilaw It’s not what you wanted to hear: the OSHA compliance officer at the closing conference tells you that you have a number of apparent violations. Now what? Days pass and you either wait patiently for some communication from OSHA, or you may mentally cast aside the experience of being inspected. Then one day, an envelope arrives from OSHA. You’ve just been handed your list of citations and penalties. Welcome to OSHA’s enforcement system. OSHA has six months from the end of the inspection to serve you the citation. Your rights begin with a 15-day period in which you may meet with the OSHA area director at his office to discuss the citation and penalties. You’d be smart to request this conference. You’ll be given an opportunity to get the details and explanation of why and what caused OSHA to come down on you. You’ll also have a clearer understanding of what standards mean. You’ll have an opportunity to attempt a settlement. And you can request an extension in order to abate (correct) violations, and correct them in the proper way to maintain a safe and healthful workplace. The penalties you receive are based on your history with OSHA, the size of your business, how severe the violations were, and the way you acted during the inspection (your good faith). In trying to come to terms with OSHA, try to reduce the classification of the violation, which is either egregious, willful, serious or other-than-serious. Penalties for willful violations start at $70,000, and a serious violation starts at $7,000. These violations can be re-classified to a lesser classification if the OSHA official agrees with you. “In trying to come to terms with OSHA, try to reduce the classification of the violation.” If you can’t reach an agreement, you may within that 15-day period contest the citation, or penalties, or both. Your case is then sent to the Occupational Safety and Health Review Commission, a separate group composed of several hearing judges, and the case is set for a trial. You might have several possible defenses: Noncompliance was due to employee misconduct, and you trained every employee and communicated the specific information to that employee. Or, you investigated and attempted to correct any potential hazard and you enforced your company policy. However, you must have clear, concise documentation to prove your case. Raoul M. Ilaw is a former OSHA Administrator and OSHA/FEMA, Safety & Health Manager. This advice is excerpted from an article he wrote in 2005. January/February

CMAdvisor - January/February 2010

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