It is common for OSHA to give companies a limited period of time to address safety concerns. It is also common for OSHA to cite companies when an inspection turns up a safety violation. But what happens when OSHA has a written agreement that sets a time-frame for a company to come into compliance and then fines the company for violations during the compliance period?
In the case of a shipbreaking company in Texas, it resulted in OSHA getting a stinging slap on the wrist from a judge. In the case of Sec’y of Labor v. Int’l Shipbreaking Ltd., LLC, Administrative Law Judge Patrick Augustine said OSHA had “fallen short of any standard of decency, honor, or reliability.” The judge went on to use terms like “patently unreasonable,” “inconsistent,” “disingenuous,” and “an intentional misrepresentation.” There is a very good write-up on the case by the law firm Jackson Lewis here.
What caused such harsh comments from a judge? It appears that in mid-2013, the company reached a settlement with OSHA giving it 60 days to implement an electrical safety program, but two weeks after the agreement was signed, OSHA inspected the yard and cited the company for violations. OSHA argued that, without the ability to inspect, the agreement was like giving a company a 60-day free ride to violate safety regulations. The company argued that the compliance program was complex and took time to implement. The judge agreed.
What’s the result for industry in general? It is just one administrative court opinion, but it does open the door for companies to take a similar path if they are inspected during an agreed-to abatement period. The point should not be lost that companies that take the settlement approach should not waste time in implementing their plans and should document them to be able to show progress toward the end goal.
One more thing – get a good lawyer.