There are a number of defenses that can be raised in response to an Occupational Safety and Health Administration (OSHA) citation. When a citation is given, OSHA has the burden of proving that the alleged violation occurred. Once OSHA satisfies this burden, the burden is then conveyed to the employer to prove any defenses that are offered in response to the citation. Two of the more common OSHA violation defenses include employer knowledge and employee misconduct.
If you are a contractor who has been cited for an OSHA violation and are in need of expert OSHA violation defense, we strongly recommend seeking the help of an experienced Clearwater contractor lawyer at Cotney Construction Law.
To establish a valid claim that an OSHA violation has taken place, OSHA has the burden to show proof of all of the elements found below. Without proper evidence of all four of these elements, OSHA’s claim of violation may be found to be speculative, and as a result, vacated on those terms.
1. OSHA must show evidence of the applicability of the alleged standard in violation;
2. OSHA must show proof that the employer failed to comply with OSHA standards;
3. OSHA must provide evidence of employees exposure to the alleged violation; and
4. OSHA must show proof that the employer had knowledge of the violation or could have easily discovered the violation through reasonable investigation.
With the employer knowledge defense, the burden of proof lays with OSHA to prove the employer had knowledge of the violation. Under the employee misconduct defense, which is an affirmative defense, the employer bears the burden of proof to show cause for the violation was due to employee misconduct. In proving this defense, the employer effectively eliminates the citation and corresponding penalty that is related to the employee misconduct. The employer must show a preponderance of evidence of the following elements:
1. The employer must show proof that rules and standards were set in place to prevent such violations;
2. The employer must show proof that these rules and standards were communicated effectively to employees;
3. The employer must show proof that methods for discovering violations of such roles and standards were set in place, yet the alleged violation was undiscovered; and
4. The employer must show proof that effective enforcement is in place for discoveries of such violations.
When it comes to proving claims of employee misconduct, it is imperative to have proper documentation and for that documentation to be readily accessible. As contractor attorneys in Clearwater, we recommend our clients keep written record of all policies, audits and audit findings, employee disciplinary actions, including verbal warnings, and training records, including sign-in sheets, training agendas, tests and quizzes.
To schedule a consultation with one of our attorneys, please call us today at (813) 579-3278 or submit our contact request form.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.