Employers subject to Occupational Safety and Health Administration (OSHA) inspections commonly believe that the investigators need to find something to cite to justify the time and resources spent on the investigation.

A North Carolina company took this belief a step further, filing a lawsuit in federal court accusing the North Carolina Occupational Safety and Health Administration of improperly incentivizing its investigators to cite companies subject to safety inspections. The lawsuit followed a fire at the employer’s facility that resulted in two employee deaths and $112,000 in penalties. The company alleged that NCOSHA investigators’ performance evaluations are based in part on the number and severity of citations they recommend, in violation of the federal OSH Act.

On Monday, the magistrate judge assigned to the case recommended its dismissal following a motion by NCOSHA. The judge agreed that the company was subject to the safety citations issued even in the absence of any alleged incentive program. In other words, the plaintiffs lacked legal standing because they could not demonstrate that an injury would not have occurred but for the alleged illegal conduct.

This recommendation now goes to the federal district court judge who can agree or disagree with its reasoning. If the claim is dismissed and not reinstated on appeal, this would signify the end to a fairly unusual facial challenge to the way NCOSHA evaluates its inspection personnel.

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