Thoughts on construction law from Christopher G. Hill, Virginia construction lawyer, LEED AP, mediator, and member of the Virginia Legal Elite in Construction Law

My Client Was Cited by Virginia Occupational Safety and Health

Originally posted 2011-06-17 09:00:35. Republished by Blog Post Promoter

Anna Jolly, Circle SafetyFor this week’s Guest Post Friday we welcome, Anna E. Jolly, JD, CHMM. Anna is a partner in the consulting firm, Circle Safety and Health Consultants, LLC. Anna has been an OHS professional for over 30 years and is licensed to practice law in the Commonwealth of Virginia. She is also a member of the Virginia Safety and Health Codes Board. Anna has the ability to integrate technical and legal requirements relating to occupational safety and health regulations so that her clients keep their employees safe, follow the regulatory requirements and accomplish the goals of their business. Her favorite projects involve assisting clients through the Virginia Occupational Safety and Health regulatory process

So your client just got cited by Virginia Occupational Safety and Health (VOSH) and wants you to make it go away. So you are a hot-shot attorney, what can be so hard about this? It is just a small regulatory agency. Well, you have to know a few things about OSHA in general and Virginia’s version specifically in order to get the best outcome.

First thing to know is that your client has 15 working days to do something. If he does nothing, he pays full price. This is like your court filing deadline; if you miss it, you’re out of luck. So, schedule your informal contest and/or submit your notice of contest. In Virginia you can still have an informal after you submit a notice of contest.

As an OSH professional and lawyer, the first thing that needs to be done is to conduct a technical review of the citations. Are they cited properly? I have found improperly cited violations fairly frequently. Of course, in Virginia they can change them to the proper section, but catching the mistake shows them you know what you are doing. If you don’t know a trench box from a torque wrench, get a safety professional to review it for you. Look at the OSHA regulations cited and the interpretations that go along with this. Get all the photos and facts from this, just as you would for any case you’d take to litigation.

Don’t look past the informal conference; it is the most important event in the process. This is where most cases get settled. It is great to review case law ‘til dawn, but this meeting is with an administrator, not a judge, or even a lawyer, so his take on this is different. I am sure you will do a great job when you get to court, but your client will be a lot poorer than he would be if you settled at the informal.

Virginia is a “state plan” state, so the VOSH program has a number of rules that are different from Federal OSHA rules. Be sure to review the VOSH Administrative Regulations Manual and the Field Operations Manual. These two documents are chockfull of the procedures that VOSH must follow to do business. Both documents are available on the (VOSH) website at www.doli.virginia.gov.

You are ready to go to the informal now. If you can get the case knocked out because citations were incorrect, it was employee misconduct, the client’s employees were not exposed, or other technical matters, then everyone is happy. Present VOSH with documentation such as training records or disciplinary records to prove the case. Just give them the documents that prove your case, not five pounds of paper. They won’t do your work for you.

Getting them vacated is rare, especially if your client really did what was cited. You can always get a reduction of some type. Regional Directors can reduce penalties by 40% without breaking a sweat. You have to prove more to vacate or reduce the classification. Payment plans are even available.

Don’t take everybody and their brother to the informal. That is intimidation and it does not work. I don’t have a set formula, but I always have a high level management person or the owner in a small business. This shows management commitment. I may or may not take the foreman or supervisors involved. If there are incorrect factual issues, he goes. If he needs to have “the fear put in him”, he goes. As for the rest, the company safety person and/or your safety consultant generally has something to contribute. Don’t take people who have nothing to contribute.

There is no need to be argumentative. If you have a hot-headed client, try to keep him quiet. If you have a client who wants to say, “This is unfair and we have a good safety record and you are picking on me” and he won’t let it go, let him go first and say his piece, and then get down to business. If not, he will be on simmer the whole time and might blow!

Arguments that they have heard a million times, and which are not winners, include:

  1. We can’t have this on our excellent safety record.
  2. Your inspector was picking on us and behaved badly.
  3. You shouldn’t cite me because I have a good safety program.
  4. I know the Governor or any other high ranking public official.
  5. You shouldn’t cite me, the economy is bad.

Remember, they are citing items with the potential for injuries, illnesses, and deaths; you don’t get to kill more people because the economy is bad.

So, if you don’t get what you want, then you can go forward. In Virginia, this goes to court rather than to an administrative law judge. The legal department at VOSH will take the case forward and may make additional settlement offers. It may be a year or more before they get their day in court, so the best advice is to get all of the facts down on paper immediately. Then you can remember the issues if you get that far. It is only then that you get to use your lawyerly wiles on a judge.

Fortunately, most cases are settled at the informal conference so that the system doesn’t get clogged up with these cases and your client doesn’t have to pay a fortune.

I specialize in the period from inspection to informal conference; I’ll call you if they want to go to court!

Anna and I welcome your comments below. Also, please subscribe to keep up with this and other Guest Post Friday Musings.

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