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How to Handle OSHA Violations After a Complaint is Filed

ConstructLitig

Recently we wrote about how to handle the initial stages of an OSHA complaint. But assuming you do not want to agree to the violation, pay the fine, and of course fix whatever you were cited with—which may be a viable option, depending on the severity of the violation, and the cost of fighting it–it may be time to fight the violation. If you do contest the violation, and are not able to work out a resolution with OSHA, it is a good idea to understand how to handle the next stages of an OSHA complaint.

A Complaint is Filed

If you timely contest the OSHA complaint, OSHA will file a complaint against your construction business within the twenty day time period as required by law. The case is filed with and handled by an administrative law judge. However, most of the same federal rules apply to the case. For example, just like with the Federal Rules of Procedure, your response and defenses to the allegations in the complaint are due within 20 days.

You also have the option of filing a motion to dismiss. This motion is appropriate where even if OSHA’s allegations against your business are 100% true, the allegations still would not warrant a finding that a violation has occurred.

Just like with a case filed in Federal Court, both sides have the right to collect documents, ask questions, and take depositions (discovery).

Defenses to the Allegations

There are viable defenses to many OSHA violations. In many cases, understanding what these defenses are can help you establish them even before a violation has occurred.

Some common defenses include:

  • Because of the nature of the job or construction, OSHA’s requirements would have been impossible to comply with and still complete the job (or complete it properly). You must establish that your business took other protective measures or that alternative measures were unavailable.
  • The inspection made by OSHA that lead to the violation was done without a warrant, and in the absence of any permission to enter the property. OSHA has no right to immediate access to your property, or to “sneak around” looking for violations or information.
  • That your business established policies and procedures for workplace safety and that your business’ contractors and employees were made aware of these rules. This means that the violation was either an isolated incident, or resulted from an employee acting in violation of established company safety policy. This is an example of a defense that is good to know now, before any violation, so that your company can establish these rules, enforce them, and make them known to employees.

Retaliation

Remember that your business can get in trouble for retaliating against employees who complain to OSHA. Of course, you can punish workers who don’t follow your safety rules—you just can’t punish employees for reporting safety or OSHA violations.

We can help you with legal problems that arise on your construction sites. Call our Fort Lauderdale construction attorneys at Sweeney Law P.A. at 954 440-3993 for a consultation.

Resource:

opm.gov/services-for-agencies/administrative-law-judges/

https://www.sweeneylawpa.com/floridas-consultants-competitive-negotiation-act/

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