Masonry Magazine August 1997 Page. 14
Inspections
The CSHO will request that you show them the jobsite and may direct you to a specific concern. Since you or your representative are familiar with the jobsite, selection of the route through the jobsite is yours. Do not direct your tour through areas you are concerned about. The CSHO may video or photograph the jobsite and employees may also be questioned during the jobsite tour. They should be aware that they do not have to speak to the CSHO. Be careful, this is merely a matter of informing them of their rights. If you interfere with the investigation or the comment is misinterpreted, you may be cited. If photographs are taken, you should take photos for your records. Make sure the view supports your position of an alleged violation.
During the inspection the CSHO will note hazards. If possible, correct alleged violations. By doing so you demonstrate good faith and may qualify for additional penalty reductions. Other-than-serious hazards that are corrected during a focused inspection will not be cited. Correcting the alleged hazard does not admit guilt. Never comment about the action taken. You may wish to contest the violation and/or penalty received.
When the inspection is finished the CSHO will hold a Closing Conference to review the hazards found. Penalties will not be discussed at this time.
Penalties and Appeal
Penalties are determined by the Area Director and CSHO. Employers are informed by certified mail. Although Serious and Other-than-serious penalties may range up to $7,000, they are based on the Director's and CSHO's opinion of the severity of the potential injury and probability that injury will occur. The base penalty is usually under $5,000 which is reduced depending on the size of the employer, good faith effort and violation experience. However, if OSHA believes the violation was deliberate, voluntary or intentional, it may be considered willful. Willful violations carry penalties up to $70,000.
Upon receipt of the notice, post the violation. Contact the OSHA area office and request an informal meeting as soon as possible. Be prepared to present your opinion of why the condition was not a violation or that it did not warrant the severity or probability as suggested by OSHA.
If you do not receive satisfaction, file a written Notice of Contest with the Area Office. It must be submitted within 15 days of the citation. Your request will be forwarded to the OSHA Review Commission and assigned to an administrative law judge. Legal representation is not required, but may be wise at formal contest levels and beyond. Consult your association for advice at any level, they may be able to offer support with technical issues facing the industry.
The decision to appeal is difficult. Many cases amount to only a few hundred dollars. The fees and time lost must be considered against the penalty. You should consider other factors which may affect your business. A second violation for the same hazard within three years will be a Repeat Violation. Penalties for Repeat Violations may be imposed up to $70,000. A reduction of 10% off all penalties is allowed if you have not received a serious citation in the past three years. A current citation may disqualify you from this reduction during future inspections. Finally, keep in mind as you incur legal costs and lost time, the government incurs costs and time lost as well. OSHA solicitors must select cases they feel are worthy. The stronger your case and less significant the citation, the greater the likelihood it will be settled in your favor. You may even avoid formal contest situations by presenting a strong case at your informal meeting.
Summary
There are no definitive responses to an OSHA inspection. Each employer must develop their own strategy based on the style of business they find most effective. However, using the case presented in the opening of this article. The following should have taken place.
1. Establish a policy for responding to OSHA Inspections. Prohibit access until an official employer representative is present.
2. Inform employees of your OSHA policy. Let employees know how to respond when OSHA arrives, but do not interfere with their rights. Notify them when OSHA is on site.
3. Implement an effective safety program. Make sure a safety program is in place which addresses all safety hazards and OSHA mandates.
4. Maintain proper records.
5. Be prepared to contest alleged violations that you do not agree with.
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14 MASONRY-JULY/AUGUST, 1997