Jose M. Chanfrau IV and Zayra W. Taupier, “Knock, Knock!

The OSHA Inspection Survival Guide,”

ACC Docket 23, no. 10 (November/December 2005): 58-72.

KNOCK,
KNOCK! The OSHA Inspection
SURVIVAL GUIDE
By Jose M. Chanfrau IV and Zayra W. Taupier

58 ACC Docket November/December 2005

 No matter how well you think your company runs its safety program,
sooner or later you will get a frantic phone call: OSHA inspectors are at the
door. Worse yet, you will hear that an inspection has occurred without your
knowledge. Even to the most senior management, there is nothing more
frightening than OSHA inspectors arriving unannounced. And they
will always be unannounced—OSHA is prohibited from giving
advance notice of inspections, except as authorized by the
Secretary of Labor or the Secretary’s designee.
Your best defense to the inevitable OSHA inspection is a
thorough preparation. Of course that preparation should
include a systematic adherence to OSHA’s rules
(and its sometimes surprising interpretations
of those rules). But it should also include a
solid understanding of your procedural
rights—including your right to insist that the
inspectors have a warrant for any search of
your property and records. Insisting that an
agency follow proper procedure (and, of course,
following it yourself) is a common-sense way of reduc-
ing your risk of conflict with governmental regulators.

November/December 2005 ACC Docket 59

 Jose M. Chanfrau IV graduated from the Alabama
University School of Law in 1985. He is the
general counsel for Downrite Engineering Corp.
and its affiliates, Hurricane Waste, Hurricane
Electric, Hurricane Landscaping, and American
Environmental Recycling. He also represents a
related entity, Shores Development, Inc., a large
residential homebuilder in south Miami-Dade
County specializing in luxury homes. He can be
reached at jchanfrau@downrite.com.
Zayra W. Taupier is a human resources generalist
in transition in the Miami, FL area. She has over
12 years of broad strategic and operational HR
experience in fast-paced, high-tech, and
construction environments. She can be reached
at ZVTaupier@aol.com.
PREPARING FOR THE INEVITABLE
It is more useful to prepare for an OSHA inspec-
tion than to sit back and react to the aftermath. Your
most critical preparations will fall into two broad
categories: putting boundaries around OSHA’s access
to your worksite and files, and ensuring that key
OSHA records are always in perfect order.
Post Trespass Warning Signs
An employer has a right to require that an OSHA
inspector obtain an inspection warrant before enter-
ing an establishment, in the absence of one of the rec-
ognized exceptions to the requirement. Consent to the
search, of course, is one such exception. (See the dis-
cussion below, “Knowing Your Rights.”) Employers
should therefore mark all private property with “No
Trespassing” signs that advise visitors to contact man-
agement before entering private property. These signs
will help limit an OSHA inspector’s ability to argue
that a low-level or unauthorized employee gave effec-
tive consent to the search.
Create an OSHA Response Team
Every employer should appoint an OSHA
response team trained to deal with OSHA inspec-
tions. Notify all employees that if OSHA shows up
on a job site, only the members of the OSHA
response team have the authority to allow entry
60 ACC Docket
onto the employer’s property or to participate in an
inspection. In this way, only the most knowledge-
able personnel will be responsible for decisions that
could cost the company thousands of dollars.
Delineate Clear Duties for the OSHA
Response Team
The OSHA response team should:
• Call the company’s legal counsel or risk manager
immediately.
• Determine whether or not a search warrant will
be required, if OSHA does not have one already.
In most circumstances you should not waive the
warrant requirement.
• Examine the credentials of the OSHA inspectors
and of anyone who accompanies them. Under no
circumstances should anyone other than an
OSHA inspector be allowed to enter the premises
for an OSHA inspection, even with a warrant.
• Ensure that the legal counsel or risk manager is
present before any document or evidence is
turned over to OSHA inspectors, even if they
have a warrant. If legal counsel cannot be pre-
sent, bring only those documents outlined in the
warrant to the inspector. Do not let the inspector
go on a fishing expedition with your files.
• Control company documents. Although there is
no requirement that you copy any documents for
OSHA, you are better off reaching an agreement
to copy the documents being surrendered to
OSHA than you are letting it take the originals.1
Once you lose control of the originals, the risk
escalates that you and/or OSHA will lose track of
documents or have an inaccurate record of what
was taken.
• Get a detailed inventory of any documents or evi-
dence seized.
• Have a camera, video camera, or CCTV system
and any appropriate measuring instruments to
duplicate the images or readings taken by the
OSHA inspector.
• Avoid ad hoc procedures in dealing with OSHA.
Standardizing your OSHA procedures and reports
throughout your locations is a critical step in en-
suring that all your employees use best practices.
Keep and Update Material Safety Data Sheets and
Hazard Communication Information
The transmittal of material safety data sheets
November/December 2005
 (MSDS) is required under OSHA’s Hazard
Communication Standard (HCS)2 and is the single
largest source of OSHA violations by employers.
Employers that “use” hazardous chemicals must have
a program to ensure the information is provided to
exposed employees. “Use” means to package, handle,
react, or transfer. According to OSHA, this standard
is intentionally broad, and includes any situation
where employees may be exposed to a chemical under
normal conditions of use or in a foreseeable emer-
gency. The late Mike Royko, writing in the Chicago
Tribune, lampooned OSHA’s MSDS for water, which
cautioned employers to keep it from freezing!
Keep and Update OSHA Log 300, 300A, and 301
It is essential that you maintain the Log of Work-
Related Injuries and Illnesses (Log 300), the
Summary of Work-Related Injuries and Illnesses
(Log 300A), and the Injury and Illness Incident
Report (Log 301).
• The Injury and Illness Incident Report (Log
301) is one of the first forms you must fill out
when a recordable work-related injury or illness
has occurred. OSHA provides that violators of
the record-keeping and reporting requirements
may incur civil penalties of up to $7,000 for
each violation.
• OSHA’s log of work-related injuries and illnesses
(Log 300) is particularly problematic because of
its inherent tendency to overreport on-site
injuries for contractors who employ subcontrac-
tors. OSHA Directive CPL 02-00-135 requires
such contractors to report the on-site injuries and
illnesses of the subcontractor’s employees on the
contractor’s OSHA 300 form. Since the subcon-
tractor will report the same injury on its OSHA
300 form, the form overstates the number and
frequency of injuries for the contractor. This is
important since OSHA Directive 2.80 partly
determines the amount of a penalty based upon
the employer’s history of previous violations as
reported in the OSHA 300 Log, according to a
numerical weight of 1 through 3. On multiple-
employer worksites, a general contractor is sub-
ject to the same citation as the subcontractor,
under the theory of “Controlling Contractor.”3
Have a Written Safety Plan
OSHA requires a written safety plan that com-
62 ACC Docket
plies with minimum requirements and additional
requirements, which may include:
• Hazard communication (right-to-know) material,
as required by 29 CFR 1910.1200;
• Personal protective equipment;
• Lockout- and tagout-specific practices and proce-
dures to safeguard employees from the unex-
pected energization or startup of machinery and
equipment, or the release of hazardous energy
during service or maintenance activities;
• Emergency action, for all facilities with more
than 10 employees;
• Fire prevention, for all facilities with more than
10 employees;
• Job-safety analysis, for any job task where haz-
ards exist; and
• Confined-space safety plans, where employees
enter confined spaces.
Depending on the job, the safety plan may
require respiratory protection, hearing conservation,
welding safety, powered truck/forklift safety, and
blood-borne pathogens standards.
UNDERSTANDING HOW OSHA SCHEDULES
INSPECTIONS
As you prepare for the inevitable inspection, you
may wonder what to focus on first. Knowing how
OSHA schedules inspections can help you predict
and prepare for your next encounter. In general,
there are two factors that you must consider:
OSHA’s priorities for scheduling inspections,
which depend on OSHA’s perception of the degree
or imminence of the risk; and OSHA’s concerns
regarding hot-button issues in particular industries.
Inspection Priorities
According to the OSHA inspection manual, the
general order of priorities for inspections is as follows:
• Imminent Danger Inspections. OSHA may obtain
an injunction where there is imminent danger,
defined as danger “which could reasonably be
expected to cause death or serious physical harm
immediately, or before the imminence of such dan-
ger can be eliminated through the enforcement
procedures, otherwise provided by this Act.” 4
• Fatality/Catastrophe Inspections. The OSHA
inspection manual defines fatality as “an
November/December 2005

employee death resulting from a work-related
incident or exposure; in general, from an acci-
dent or illness caused by or related to a work-
place hazard.” The manual defines a catastrophe
as “the hospitalization of three or more employ-
ees resulting from a work related accident; in
general, from an accident or illness caused by a
workplace hazard.”
• Complaint/ Referrals Inspections. A formal com-
plaint launches an investigation. A signed docu-
ment alleges “an imminent danger or the existence
of a violation threatening physical harm, submit-
ted by a current employee, a representative of
employees (such as unions, attorneys, elected rep-
resentatives and family members), or present
employees of another company if that employee is
exposed to the hazards of the complained about
workplace.” Oral or unsigned complaints by
employees or nonemployees can also lead to inves-
tigations. Sometimes police officers, terminated
employees, medical technicians, or disgruntled
employees may start the process. For example, if
you are involved in a contentious labor dispute, it
is more likely that OSHA will receive a complaint
from the union or employee. Referrals by other
agencies such as workers’ compensation are han-
dled similarly.
• Programmed Inspections. Programmed inspec-
tions of worksites are supposed to be scheduled
based upon objective or neutral selection criteria.
The programmed inspections are selected accord-
ing to national scheduling plans for safety and
health or special emphasis programs. In the con-
struction industry, for example, the data for the
national scheduling plans come from the Uni-
versity of Tennessee’s Construction Industry
Research & Policy Center (CIRPC) and McGraw–
Hill’s F.W. Dodge Reports of construction activity.
CIRPC’s contract with OSHA requires CIRPC to
operate OSHA’s Construction Targeting System,
whereby CIRPC maintains a file of active con-
struction projects and uses its econometric model
to estimate the duration of each project. Each
month CIRPC randomly selects about 1,500 pro-
jects for safety inspections by OSHA personnel in
120 area offices. Because the econometric models
are heavily weighed toward projects of longer
duration—so-called big box projects—smaller
projects are not inspected as often. According to
November/December 2005
From this point on . . .
Explore information related to this topic.
ACC RESOURCES ON WORKPLACE HEALTH AND SAFETY
ACC’s committees, such as the Employment and Labor
Law Committee and the Environmental, Health and Safety
Committee, are excellent knowledge networks and have list-
servs to join and other benefits. Contact information for ACC
committee chairs appears in each issue of the ACC Docket, or
you can contact Staff Attorney and Committees Manager
Jacqueline Windley at 202.293.4103, ext. 314, or windley@
acca.com or visit ACC OnlineSM at www.acca.com/networks/
committee.php.
• Thomas M. Giller, Neil H. Wasser, and Steven F. Witt,
“What You Should Know About Reducing Your Exposure
Under OSHA,” 2003 Annual Meeting Program Material,
available at www.acca.com/education03/am/cm/507.pdf.
• J. Michael Kettle and Neil H. Wasser, “Top 10 Things
Employers Need to Know to Survive Their Next OSHA
Inspection,” 2004 Annual Meeting Program Material,
available at www.acca.com/am/04/cm/307.pdf.
• Kim R. Kolb and William K. Principe, “OSHA
Inspections: How to Prepare,” ACCA Docket 21, no 8
(September 2003): 24–41, available at www.acca.com/
protected/pubs/docket/so03/osha.pdf.
• “Responding to Government Investigations,” an ACC
InfoPAKSM available at www.acca.com/protected/info
paks/govtinvest/INFOPAK.PDF.
• “Specific Procedures for During and After an OSHA
Inspection,” 2003 Annual Meeting Program Material,
available at www.acca.com/protected/forms/environ
mental/osha.pdf.
If you like the resources listed here, visit ACC’s Virtual
LibrarySM on ACC OnlineSM at www.acca.com/resources/
vl.php. Our library is stocked with information provided by
ACC members and others. If you have questions or need assis-
tance in accessing this information, please contact Senior Staff
Attorney and Legal Resources Manager Karen Palmer at
202.293.4103, ext. 342, or palmer@acca.com. If you have
resources, including redacted documents, that you are willing to
share, email electronic documents to Julienne Bramesco, direc-
tor of Legal Resources, bramesco@acca.com.
ACC Docket 63
 a Government Accounting Office Report released
November 2002, because these databases focus
on big construction sites, they do not identify
smaller sites that may actually be a greater source
of hazards.5
Hot-Button Issues
In attempting to predict what an OSHA inspec-
tion at your worksite might focus on, it can be
helpful to know OSHA’s current hot-button issues.
According to its Strategic Management Plan 2003–
2008, OSHA focuses on specific, incremental
improvements each year. For 2003–2004, the tar-
gets are a 3 percent drop in construction fatalities
and a 1 percent drop in general industry fatalities.
With respect to injuries and illnesses, the agency is
seeking a 4 percent drop in construction, general
industry, and the following industries, which all
have high hazard rates:
• Landscaping/horticultural services,
• Oil and gas field services,
• Fruit and vegetable processing,
• Concrete and concrete products,
• Blast furnace and basic steel products,
• Ship and boat building and repair, and
SURPRISE! YOU MAY BE OVERLOOKING
According to the Occupational Health and Safety
Act of 1970 (the Act) at 29 USC § 654, an employer
must furnish employment “free from recognized haz-
ards that are causing or are likely to cause death or
serious physical harm to his employees,” and must
comply with OSHA’s standards. This catch-all section
of the Act is known as the “General Duty” clause, and
it can have some unexpected repercussions. For exam-
ple, in Bunge Corporation v. Secretary of Labor,i OSHA
cited an employer who ran a grain elevator for 42
instances of poor housekeeping. These violations con-
sisted primarily of dust and grain accumulation, in vio-
lation of § 1910.22(a)(1), the general housekeeping
regulation which requires that the workplace be “kept
clean and orderly and in a sanitary condition.” OSHA
made no showing that the dust and grain accumulation
was a hazard. Nevertheless, the court upheld the
64 ACC Docket
• Public warehousing and storage.
OSHA is also trying to reduce amputations in
manufacturing and construction by 3 percent; ergo-
nomics-related injuries by 4 percent; blood lead levels
by 5 percent; and silica-related disease significantly. In
addition to these goals, OSHA emphasizes industry-
specific hot buttons. For example, in the construction
industry OSHA focuses on the following dangers:
• Trenching and Excavating. OSHA’s number one
goal in the construction industry is to protect
employees in excavations.
• Electrical Accidents. According to 29 CFR
1926.416, no employer shall permit an employee
to work so near any part of an electric power cir-
cuit that the employee could contact the electric
power circuit. If he or she is that close, the
employee must be protected against electric
shock by a de-energized or grounded circuit,
effective insulation, or other means.
• Struck-By Accidents. OSHA focuses on accidents
that involve employees who are struck by vehi-
cles, flying or falling objects, and employees who
fail to wear head protection and goggles as pro-
vided in 29 CFR 1926.95 and 29 CFR 1926.100.
• Fall Accidents. The fall-protection standards,
A SERIOUS VIOLATION
citations. It stated that all that OSHA needed to show
was a violation rather than an actual danger or a haz-
ard, and thus the “grain dust accumulations were prop-
erly cited as an unclean condition of the housekeeping
regulation.”ii
Another conclusion that might surprise you is the
identification of the “employer” for OSHA purposes.
OSHA will look to the party that is controlling the
worksite. The question of whether those employed on
the site are the controlling party’s “employees” for wage
or tort purposes is not determinative, despite the wide
use of temporary or leased employees.iii
NOTES
i. 638 F.2d 831 (5th Cir. 1981).
ii. Id. at 834.
iii. Clarkson Construction Co. v. OSHA, 531 F.2d 451
(10th Cir. 1976).
November/December 2005
 which are outlined in 29 CFR 1926.501, man-
date protection systems where there is an unpro-
tected edge six feet above a lower level. OSHA
requires that employers provide fall protection in
one of three ways before work begins:
• Placing guardrails around the hazard area,
• Deploying safety nets, and
• Providing personal fall-arrest systems for each
employee.
KNOWING YOUR RIGHTS
Another essential element of preparation for an
OSHA inspection is to know the rules that limit
OSHA’s ability to inspect your company without a
COME IN? REGULATED INDUSTRIES
In Lake Butler Apparel Co. v. Sec. of Labor,i the OSHA
officer, who was on a routine inspection of plants in the
Lake Butler area, presented himself to the president of the
company. The president then accompanied him through the
plant. Violations in plain and obvious view were discovered
during that walking tour, such as ungrounded machines and
lack of color coating on the fire extinguishers.
The employer argued that the warrantless inspection
by the OSHA inspector violated the Fourth Amend-
ment. It maintained that, except in certain narrowly
defined classes of cases, a search of private property
without proper consent is unreasonable unless autho-
rized by a valid search warrant. The government
responded that business enterprises subject to OSHA
inspections should fall under the “implied consent”
exception to the Fourth Amendment. But the court was
skeptical of these broad claims, noting that, “in the past
this exception has been limited to businesses the gov-
ernment has had historically broad authority to regu-
late,” for example, the liquor industry, “and any attempt
to expand the concept must be cautiously analyzed.”
Other courts have held that a warrantless search of
commercial property in general may be constitutionally
objectionable, if the search is conducted so unsystemati-
cally, infrequently, or unpredictably that the owner has no
real expectation that government officials will from
66 ACC Docket
warrant. According to both the US Supreme Court
and OSHA’s own Field Inspection Manual, an
employer has a right to require that an OSHA
inspector seek an inspection warrant before entering
an establishment, in the absence of a recognized
exception to the warrant requirement. In the absence
of such a warrant, the employer may refuse entry.
Some observers believe that an employer should
not require an OSHA inspector to take the extra
steps needed to obtain a warrant, reasoning that a
more thorough inspection might result. But the
authors’ past experience suggests otherwise. OSHA
inspectors, like police officers, do not generally
reserve a lower standard for an inspection or search
for those who make it easy for them by waiving
their constitutional rights.
AND THE WARRANT REQUIREMENT
time to time inspect his property.ii As the Ninth Circuit
noted, when no regulatory plan is built into the legislation
regulating a specific industry, the court has required a
warrant as a condition of a reasonable search.iii For exam-
ple, in the construction industry, there is no pervasive
inspection scheme, as there is in the case of firearms,
alcohol, or mines. In Marshall v. Reinhold Construction,
Inc., the Secretary of Labor argued that § 657 permitted
warrantless searches of a construction site.iv According to
the Reinhold court, “if the statute were to be construed to
permit general warrantless searches, as the Secretary
insists, it would be repugnant to the Fourth Amendment
and would necessarily fall.” (Emphasis added.) The court
concluded that the government could pass constitutional
muster by requiring OSHA inspectors to obtain search
warrants to be issued by a neutral magistrate or judge
upon a showing of probable cause.
NOTES
i. 519 F.2d 84 (5th Cir. 1975).
ii. See New York v. Burger, 482 U.S. 691 (1987) (junkyards);
United States v. Biswell, 406 U.S. 311 (1978) (firearms);
Colonnade Catering Corp. v. United States, 397 U.S. 72 (1970)
(liquor).
iii. Railway Labor Executive Assoc. v. Burnley, 839 F.2d 575 (9th
Cir. 1988).
iv. 441 F. Supp. 685 (M.D. Fla 1977).
November/December 2005
 There is no doubt that an OSHA inspection is
a stressful experience. But an employer gains no
advantage by waiving a warrant requirement.
Requiring a warrant can deter a fishing expedition
if an overzealous official has decided to start one.
It’s simply a matter of following proper procedure—
something that both regulators and the regulated
should always strive for.
The Legal Background
Section 657 is the polestar of OSHA’s entire
inspection and investigation scheme. According to
29 USC § 657, an inspector may enter a worksite
“without delay and at reasonable times,” and “to
inspect and investigate during regular working
hours and at other reasonable times, and within
reasonable limits and in a reasonable manner.”
Employers may think that this section 657 doesn’t
require a warrant. Then, when they fail to object to a
warrantless OSHA search, they are deemed to have
consented to the search. But in reality, warrantless
entry contravenes the Fourth Amendment, which
restricts the government’s ability to enter private
property. According to the US Supreme Court, as
acknowledged in OSHA’s own Field Inspection
Manual, OSHA may not inspect the employer’s prop-
erty or records without a warrant unless one of the
recognized exceptions to the warrant requirement
applies: consent, third-party consent, plain view,
open field, or exigent circumstances.6
Of course, some warrantless searches are permis-
sible. For example, one court held that an employer’s
Fourth Amendment rights against illegal search and
seizure were not violated when an OSHA compli-
ance officer, while standing on the roof of a nearby
hotel, videotaped employees operating without fall
protective devices at the employer’s construction site.
The court decided that the employer had no reason-
able expectation of privacy, in that anyone in the
hotel facing the site could observe employees.7
Another way for a warrantless search to proceed
is on the grounds of implied consent. If the employer
is in a heavily regulated industry with a pervasive
inspection scheme, as in the case of firearms, alco-
hol, or mines, a court might find that the employer
had implicitly consented to the search, making a
warrant unnecessary. (See “Come In?” on p. 66.)
Recently, one of the authors faced a situation
November/December 2005
familiar to any criminal defense attorney. An OSHA
inspector conducted his inspection at a construction
site, having made no effort to contact the general
contractor on the site. He obtained “consent” to
enter private property from a subcontractor’s laborer,
who spoke little or no English, contrary to the proce-
dures outlined in OSHA’s Field Inspection Manual.
Nevertheless, the OSHA inspector insisted that he
had consent to be on private property because no
one objected to his presence. The OSHA inspector
then proceeded to cite the employer for a “serious”
violation for not having fall protection for an
employee standing 2 to 3 feet away from an open
manhole 2 feet in diameter with a raised lip of about
12 inches—even though the employee’s primary
function was to act as an attendant to keep anyone
from approaching the manhole. (All of these facts
were stipulated to by the parties, and a decision is
forthcoming from the administrative law judge.8)
If an Illegal Search Occurs
At the present time, the role of the exclusionary
rule in OSHA proceedings depends on what circuit
the inspection occurred in. For example, the Fifth
Circuit has held that the exclusionary rule does not
apply to proceedings correcting violations, but does
apply to OSHA proceedings to punish past vio-
lations.9 Under this analysis, OSHA can compel an
employer to correct a violation it found as a result of
the illegal search, but it cannot cite the employer for
that violation (unless the good-faith doctrine applies).
The Eleventh Circuit treats violations of the warrant
requirement much more seriously. In the Eleventh
Circuit, if OSHA’s search violates the Fourth Amend-
ment—because it was warrantless and none of the
exceptions (such as the open-view doctrine) apply—
then any evidence of a violation that OSHA finds is
not admissible for any purpose, the same approach
the courts take with respect to any illegal search in
the criminal law context.10
FINES AND PENALTIES FOR VIOLATIONS
When OSHA inspectors come to your premises
to conduct an inspection, they will come looking
for serious, willful and repeat violations—and you
shouldn’t be surprised if they find them. The
ACC Docket 67
 agency, with its specific targets for decreases in
fatalities and injuries, takes an aggressive approach
to citing and pursuing serious and other violations.
(See “More Surprises” on this page.)
Fines depend on whether violations are de min-
imis, other than serious, serious, repeat, or willful.
OSHA fines can be heavy; a laissez-faire attitude to
OSHA violations is not an option.
De Minimis Violations
De minimis violations are violations of stan-
dards that have no direct or immediate relation-
ship to safety or health and shall not be included
in citations. They are technical violations. Absent
a direct, immediate nexus between noncompliance
MORE SURPRISES:
OSHA’S AGGRESSIVE APPROACH
OSHA’s aggressive approach to violations can be seen in
its enforcement of so-called performance-oriented standards,
which set out the criteria to be met through safe workplace
performance-oriented goals. These standards do not always
set out specific requirements; rather they address the goals
to be accomplished. As the Occupational Health and
Review Commission noted, “A performance-oriented stan-
dard gives employers the flexibility to adapt the rule to the
needs of the workplace situation, instead of having to follow
specific rigid requirements.” (Secretary of Labor v. Tree of
Life, 2001 WL 694545 n.7.) Examples of performance-ori-
ented standards include the head protection regulations
(e.g., requiring hard hats).
The standard used to determine whether an employer
violated a performance-oriented standard is not whether a
reasonable person would be apprised of a hazard but,
rather, whether a reasonable person familiar with condi-
tions in the industry would have instituted protective mea-
sures more elaborate than the precautions taken by the
employer. However, OSHA has repeatedly refused to
acknowledge industry standards when issuing citations for
violations of performance-oriented standards. The result is
that a responsible employer who has attempted to comply
with the performance-oriented standards, as written, is
likely to be surprised by the conditions that OSHA consid-
ers “serious” violations.
68 ACC Docket
and employee safety or health, a violation of an
OSHA standard may be classified in the de min-
imis category under 29 USCA § 658(a). In one
instance, open wiring was separated from conduct-
ing materials by more than two inches except
where it was plugged into the junction box, and
this was deemed de minimis.11
Other Than Serious Violations
These are violations where OSHA cannot predict
whether the violation will result in serious injury or
illness, but the hazard nonetheless has a direct and
immediate relationship to safety and health.12 An
example of an “other than serious violation” is a sit-
uation where an employer fails to document audits
of its lockout/tagout procedures where this viola-
tion does not result in an injury.13 Other than seri-
ous violations may be assessed a civil penalty of
up to $7,000 for each violation.
Serious Violations
To demonstrate a “serious violation” of a safety
standard, OSHA must prove:
• that the cited standard applies and that its
requirements were not met,
• that employees were exposed to, or had access
to, the violative condition,
• that the employer knew or, through the exercise
of reasonable diligence, could have known of this
condition; and
• That there is substantial probability that death
or serious physical harm could result from the
hazard.14
For example, in one case, the court determined
that an employee was in danger of being buried by
overhead material or from a baler’s suddenly
becoming activated.15
One common serious violation that trips up
many employers is failing to document “frequent
and regular inspections of the job sites, materials,
and equipment to be made by competent persons
designated by the employers,” a violation of 29
CFR 1926.20(b)(2). In one case, a subcontractor’s
employee brought suit against the general contrac-
tor to recover damages for injuries when he fell
from a ladder placed on top of a scaffold. The
employee alleged that the general contractor failed
to supervise the subcontractor adequately. The
appellate court noted that the purpose of regular
November/December 2005
 inspections and supervision of the jobsite under
29 CFR 1926.20(b)(1)(2) was to prevent unsafe
practices, but it agreed with the trial court that
the general contractor was not required to have
someone out there every day to make sure no one
did anything foolish.16
Another common serious violation of 29 CFR
1926.100(a) occurs when employees fail to wear
protective helmets.17 For example, a court has held
that the employer was properly penalized for allow-
ing employees to climb ladders without hard hats,
when materials were stored close to the edge of the
roof 13 feet above the ground and could have top-
pled on an employee. OSHA has been known to
enforce these and similar rules with the utmost zeal;
inspectors recently alleged serious violations involv-
ing protective helmets where an employee was work-
ing inside a newly constructed sewer pipe. According
to OSHA, it was possible that a loose rock might
have fallen into the manhole while the employee was
Looking across the water . . .
ACC international resources on worker
health and safety
• “Hot Topics in Europe from Eversheds’ Human Resources
Group” (2004), available at www.acca.com/protected/
article/employment/hrg_may2004.pdf.
• International HR Hot Topics, Course 503 at ACC’s 2004
Annual Meeting, available at www.acca.com/am/04/
cm/503.pdf.
• Richard Mosher and Owen Warnock, All for One and
One for All: Navigating Trade Unions and Works Councils
in Europe, ACC Docket 23, No. 2 (February 2005):
48–67, available at www.acca.com/protected/pubs/
docket/feb05/union.pdf.
• The PLC Cross-border Labour and Employee Benefits
Handbook, 3d ed. (2004/05), a Global Counsel resource,
available via ACC Online at www.acca.com/practice/
global.php.
• For more international materials, visit the Virtual Library
at www.acca.com/resources/vl.php.
70 ACC Docket
standing at the bottom of the manhole.18
Fines for serious violations range from $5,000 to
$7,000.
Willful or Repeated Violations
According to OSHA, a willful violation exists
under the Act when the evidence shows either an
intentional violation of the Act or plain indifference
to its requirements.19 Repeated issuance of citations
addressing the same or similar conditions or lack of
communication of the OSHA standards to lower-
level personnel is enough to constitute a willful vio-
lation. If the willful violation results in the death of
the employee, it could result in a criminal penalty
punishable by up to six months imprisonment and a
fine of $10,000.
Fines for “willful” and “repeat” violations of the
Act can reach $70,000. In additional, OSHA
applies multipliers to reflect the number of employ-
ees exposed or the number of times an individual
employee was exposed. In one case from July 2001,
an excavation contractor specializing in pipeline
and tunneling work was cited for 16 violations, 6 of
which were categorized as willful. Employees were
performing tunneling and deep excavation work,
installing concrete pipes for a water main project in
Toledo, Ohio. The employer was fined $416,000 for
the violations. The amount of the violations was
large but not unprecedented. Other violations
imposed by OSHA have ranged from $45,000 to
$150,000 for cave-in, sloping, or shoring.
SOME SURPRISES ARE GOOD ONES:
OSHA AND COOPERATION
Of course no employer wants workplace injuries.
But any agency in the business of imposing citations
and fines runs the risk of confusing the means (fines
and penalties) with the ultimate goal: improving
worker safety. Jonathan Snare, Acting Assistant
Secretary of Labor for Occupational Health and
Safety, spoke before the American Bar Association’s
Occupational and Health Law Committee in Key
West on March 2, 2005. He stated that, moving
forward, the agency was adopting a “balanced”
approach that would include “strong, fair and effec-
tive enforcement.” Yet a few weeks later, on April 7,
2005, Mr. Snare emphasized OSHA’s record for
November/December 2005
increasing the number of serious and willful cita-
tions assessed against employers. Testifying before
the House of Representatives in support of OSHA’s
budget request for 2006, Mr. Snare stated that
“Federal OSHA’s serious violations increased by 3
percent, and willful violations increased 12 percent,
above the 2003 level.”
A better alternative to the current inspection
regime might be for OSHA and employers to work
together on reducing workplace injuries. OSHA and
the employers in one state did just that. Employers
in Maine successfully reduced violations when
OSHA shifted its emphasis from a citation-oriented
role to a more cooperative one designed to elimi-
nate hazards.20 The area director, Bill Freeman,
started by identifying several factors that were then
contributing to OSHA’s failure to reduce workplace
injuries, including a system that rewarded staff for
finding as many violations as possible.
The Maine program changed the focus of OSHA
inspectors by emphasizing the outcome rather than the
number and type of citations. It also allowed employers
with the highest number of workplace injuries or ill-
nesses to opt into the program, which meant that
although they would be subject to frequent inspections,
they would not be subject to fines for safety violations
so long as the company was making a good-faith effort
to eliminate the hazards or to continue under the cur-
rent scheme. The companies involved included such
well-known names as L.L. Bean and Friendly’s Ice
Cream. During the first two years of the Maine pro-
gram there was a 65 percent reduction in injury and ill-
ness rates, along with a decrease of 47.3 percent in
compensable workers’ compensation claims.
The Maine program was so successful that it
was expanded nationwide in December 1997 as
the Cooperative Compliance Program (CCP).
Unfortunately, CCP did not meet with the accep-
tance or success of the Maine program, perhaps
due to the way OSHA attempted to implement it.
Unlike the Maine program, CCP was not volun-
tary; OSHA gave nearly 12,000 worksites with
lost or restricted workday injury/illness rates a
deadline to join CCP or face thorough wall-to-
wall inspections.21
The Court of Appeals for the DC Circuit in 1999
vacated the CCP standard because it held that
OSHA had failed to comply with the Administrative
Procedure Act’s requirements with respect to notice
November/December 2005
and comment rulemaking. The court vacated the
rule without prejudice to OSHA’s being able to rein-
troduce it after observing the APA’s requirements.
So far, OSHA has failed to pursue the program.22
VPP IS A COLLABORATIVE EFFORT BETWEEN
EMPLOYERS AND OSHA THAT INCLUDES A
RIGOROUS ON-SITE EVALUATION BY A TEAM OF
OSHA SAFETY AND HEALTH EXPERTS AND A
COMMITMENT TO REMEDY ANY HAZARDS
IDENTIFIED WITHIN 90 DAYS.
After OSHA’s failed attempt to implement CCP,
it attempted to establish a collaborative emphasis in
a different program, the Voluntary Protection
Program (VPP). VPP is a collaborative effort
between employers and OSHA that includes a rig-
orous on-site evaluation by a team of OSHA safety
and health experts and a commitment to remedy
any hazards identified within 90 days. Although
OSHA cannot use information gathered during the
VPP assessment for any enforcement activity at the
worksite, it can use the information if the employer
FEW VOLUNTEERS
The VPP program, unlike the Maine pro-
gram, does not try to shift OSHA’s emphasis
on issuing citations to a more collaborative
hazard-elimination role. This may explain why
the VPP model to date does not appear to
have been widely accepted by employers. (See
www.osha.gov/dcsp/vpp/charts.html.) The
chemical industry leads the way in VPP, fol-
lowed by electric utility companies, but labor-
intensive industries like public warehousing
have not widely adopted the program, despite
OSHA’s having targeted these industries for
injury reduction. OSHA will have to do more
to convince employers that it can be a helpful
partner in eliminating hazards.
ACC Docket 71
 refuses to correct hazards found by the VPP team, 2052, 2055 (No. 90-2873, 1992); Gil Haugan,
the team has recommended enforcement action, d/b/a Haugan Construction Company, 7 BNA OSHC
2004, 2006 (Nos. 76-1512, 76-1513, 1979); Centex-
and the Assistant Secretary has initiated such
Rooney Construction Co., 16 BNA OSHC 2127
action. After the employer has been admitted to the (No. 92-0851, 1994).
VPP, the employer will self-inspect and is exempt 4. 29 USC § 662.
from OSHA inspections. However, OSHA will 5. www.cdc.gov/elcosh/docs/d0100/d000072/d000072.html.
investigate complaints or injuries just as if the 6. Marshall v. Barlow’s, Inc., 436 U.S. 307 (1982).
employer were not a member of VPP. (See “Few 7. L.R. Wilson & Sons, Inc. v. OSHA, 134 F.2d 1235
Volunteers,” on p.71.) (4th Cir. 1998).
8. Secretary of Labor v. Downrite Engineering &
Development Corp., OSHRC Docket No. 05-0710.
9. Smith Steel Casting Co. v. Brock, 800 F.2d 1329
SOME SURPRISES ARE JUST NOT FUNNY (5th Cir. 1986).
10. Donovan v. Sarasota Concrete Co., 693 F.2d 1061, 1071
Sooner or later, you’ll hear it: (11th Cir. 1982).
“Knock, knock.” 11. Donovan v. Daniel Construction Co. Inc., 692 F.2d 818,
“Who’s there?” 820 (1st Cir. 1982).
“OSHA.” 12. OSHA Field Inspection Manual Sec. 7 Chapter III.
13. Secretary of Labor v. J-Lenco, OSHRC Docket No. 01-
And it won’t be funny if your answer is: “OSHA
0712.
who?” To avoid unpleasant surprises that could 14. Occupational Safety and Health Act of 1970, § 17(k), 29
impose significant penalties on your company, pre- U.S.C.A. § 666(k).
pare systematically and completely throughout your 15. Omaha Paper Stock Company v. Secretary of Labor, 304
company—and know your rights. F.3d 779 (8th Cir. 2002).
16. Fry v. Diamond Construction, Inc., 659 A.2d 241 (D.C.
Cir. 1995).
The opinions and conclusions in this article are solely those of the 17. Capeway Roofing Systems, Inc. v. Chao, 391 F.3d 56 (5th
authors and not of any other person or entity. The authors wish to
Cir. 2004).
express their appreciation to Glenn Trahan, safety director for Downrite
18. Secretary of Labor v. Downrite Engineering &
Engineering Corp., for his comments and contributions. This article is
not to be construed as legal advice.
Development Corp., OSHRC Docket No. 05-0710.
19. 29 USC §666(a).
20. www.fda.gov/cdrh/leveraging/03c.pdf.
NOTES 21. NAM Wins First Round In Lawsuit Against OSHA Over
1. Caterpillar Inc. v. Reich, 111 F.3d 61 (7th Cir 1997) Coercive Program, American Wire Producers Association,
(Employer required only to provide access to records for www.awpa.org/wireline/march98/nam.htm.
inspection and copying, not to copy them.) 22. Chamber of Commerce of the United States v. U.S. Dept.
2. 29 CFR 1910.1200. of Labor, 174 F.2d 206 (D.C.Cir. 1999).
3. Flint Engineering & Construction Co., 15 BNA OSHC

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72 ACC Docket November/December 2005