OSHA Update: Aggressive OSHA Enforcement and "OSHA Jail"

by Baker Donelson

OSHA has proposed its budget for fiscal year 2015 and there are already many contentious positions being taken regarding what had been hailed as overly aggressive enforcement positions by OSHA. Examples of overzealous enforcement have ranged from a proposed rule on silica to an enforcement memo issued in 2013 related to union representatives being permitted to participate in OSHA inspections at non-unionized workplaces. Secretary of Labor Thomas Perez answered questions related to both of these specific concerns while presenting the 2015 budget to the house appropriations committee with oversight over the Labor Department's budget.

The 2013 enforcement memorandum permitting union representatives to accompany OSHA inspectors at non-union workplaces is one of the more polarizing topics. Non-union employers have feared that this enforcement memorandum simply served as an aid to union organizing by allowing union organizers access to places of employment that they would otherwise not have. Currently, there is a lot of speculation that an appropriations rider could be added to OSHA's budget that would not permit OSHA to follow this memorandum. What that means for employers is that close attention should be paid to OSHA's budget for 2015. If such a rider were affixed to OSHA's budget, then any employer faced with this type of issue during an OSHA inspection could challenge the scope of the inspection with high confidence of prevailing in Court.

As another example of aggressive OSHA enforcement, consider the issue of "OSHA Jail." No, there isn't really a place called OSHA Jail, but there is an opportunity for criminal enforcement under the Occupational Safety and Health Act. The Act allows for up to six months in jail for any person found guilty of violating a safety standard that results in the death of an employee, as well as additional criminal fines. 29 U.S.C. §666(e). This is in addition to typical civil OSHA penalties. Just this past month, a United States Attorney in Montana filed such an action against the owner of a company. The owner and his company were charged with a criminal violation of the Act for permitting an employee to walk on an unguarded platform that allowed the employee to be subjected to falling thirteen feet to the ground. In September 2012, an employee fell to his death while walking on this platform. The company was quite small, with only 13 employees and operations that were seasonal from about April to November each year. The company had not been inspected previously by OSHA. Yet, the company was charged with a willful violation of the standard requiring guardrails for locations with elevations greater than four feet. A willful violation requires that a company demonstrate either plain indifference or reckless disregard for compliance with OSHA regulations. The company resolved the willful OSHA citation fairly quickly by accepting a reduced fine from $54,000 to $36,500.  In resolving the OSHA citation, the company likely had no idea that this settlement could result in criminal prosecution. Now, the company faces up to a $500,000 criminal fine and the owner, possibly six months in jail.

April's tip:  Be careful of OSHA settlements. Quickly resolving an OSHA citation may seem like the best resolution, especially with the quick and easy "expedited informal settlement agreement" that OSHA offers with most OSHA citations, but it may not be the best course of action for your company. While a criminal action is not the prospect that most employers will ever face, building a history with OSHA can create problems. Carefully consider every OSHA citation before accepting it and remember – even a citation other than "serious" can be the basis for a repeat citation with even greater penalties.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Baker Donelson | Attorney Advertising

Written by:

Baker Donelson

Baker Donelson on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.