© 2014 Armstrong Teasdale LLP OSHA DEFENSES FROM THE EMPLOYER’S PERSPECTIVE for SAFECON EXPO Julie O’Keefe May 19, 2016

© 2014 Armstrong Teasdale LLP Penalties Will Increase August 1, 2016  1990 – OSHA Became Exempt From Increasing Penalties Due To Inflation  Bi-Partisan Budget Act of 2016 (BBA)- Directed OSHA to Issue Interim Rule Increasing Penalties To Account For Inflation  Expect Penalties to Increase About 80% 2

© 2014 Armstrong Teasdale LLP Penalties  CurrentBBA of 2015 (Approx.) Serious$12,700 Other-than-serious - $7,000 Repeat or Willful - $70,000$127,000 Failure to Abate - $7,000/day$12,700/day 3

© 2014 Armstrong Teasdale LLP Elements Required To Establish a Violation of a Standard 1.Standard Applies. −Not every surface is a “work platform” −LOTO applies where “unexpected energization could cause injury” 2.Terms of the Standard Were Violated. −e.g., PPE Hazard Assessment – missing a hazard does not equal violation −Not every dent or crack in forklift is a hazard 4

© 2014 Armstrong Teasdale LLP Elements Required To Establish a Violation of a Standard (Cont.) 3.Employer Knowledge of Violative Condition. −Actual Knowledge – Supervisor knowledge imputed −Who is a supervisor −Constructive Knowledge – “Should have known” 4.Employee Access to the Hazard. −Not every moving part must be guarded, especially automated equipment 5

© 2014 Armstrong Teasdale LLP Affirmative Defense of Employee Misconduct – (AKA, Pavlov’s Dogs)  Employer had a work rule designed to prevent the violation  Rule was adequately communicated to employees  Employer took reasonable steps to discover violations  Employer effectively enforced the rules when violations were discovered 6

© 2014 Armstrong Teasdale LLP Progressive Disciplinary Program – Required For Employee Misconduct Defense  You need a disciplinary program  “Verbal Warnings” not enough, but okay as a first step for minor violations if they are tracked in writing  Written Warnings Crucial  If you have a program you need to follow it precisely  Site Supervisors must be expected to issue written warnings or report of safety – Can’t Just Rely Upon Safety Staff 7

© 2014 Armstrong Teasdale LLP Review of Law - Willfulness  Heightened Awareness of Illegality  Plain Indifference  Supervisor Presence = May or may not Equal Willfulness  Serious Citation of 20 Years Ago = Willfulness Today  Good Faith Defense  Can’t Substitute Your Judgment for Standard  Excavations – Still Lagging But Getting Better  Fall Protection – Getting Much Better 8

© 2014 Armstrong Teasdale LLP Other Lesser Used Defenses  The Secretary Failed to Provide Fair Notice of His Interpretation of the Regulation − Previous citation and outcome − Did OSHA allow creative resolution and later disavow? − Failure to certify – OSHA Directive CPL says OSHA Does Not Issue Citatins For Failure to Cerify − Meer Case. PSM “connected to a process.”  Infeasibility - Difficult 9

© 2014 Armstrong Teasdale LLP Other Lesser Used Defenses (Con’t)  Greater Hazard – Very Difficult  6 Month Statute of Limitations − OSHA record keeping Volks case can’t cite record keeping violations more than 6 months old − Delek Refining case – Violation never fixed – OSHA could go back years 10

© 2014 Armstrong Teasdale LLP Repeat Citation  Must be “Substantially Similar” Prior Violation  OSHA Looks Back 5 Years  Other –Than-Serious Fair Game 11

© 2014 Armstrong Teasdale LLP Resolving Citations  Citation Is Only the Inspector’s Belief that Violation Exists.  Employer Can Challenge This Belief. 12

© 2014 Armstrong Teasdale LLP Opportunities to Challenge?  Informal Conference −Must be done within 15 working days of receipt of citation.  Contest −Must be done within same 15 working day period −Overwhelming majority of contested cases settle without hearing −Often hard to get OSHA to reverse itself during the 15 day period −Don’t hesitate to contest 13

© 2014 Armstrong Teasdale LLP Opportunities to Challenge? (Con’t) −Assistant Area Directors – “I can’t go any lower” −Solicitors – More willing to listen to defenses 14

© 2014 Armstrong Teasdale LLP Injury Reporting Update  Non-Mandatory Investigative Tool (NIT), site visit, or both  NIT Not Consistently Used By OSHA  Stick with Facts  Be Careful in “Root Cause” and “Corrective Action” Sections. Will be used against you. 15