Unlike many other areas of the law, a construction case is based primarily on the documentation. The rule of thumb for any construction claim or defense is that the party with the “best” paper wins the day. In other words, if your position is supported by dozens of emails with no documentation refuting your claim, then you stand a good chance of succeeding on that claim provided that there are no other defenses.
When defending an OSHA citation, ample documentation is needed to support your defense. The most successful and most often utilized defense to an OSHA citation is unpreventable employee misconduct. Generally speaking, if an employer is able to show that the violation occurred as a result of employee malfeasance, the employer may use the defense to avoid the OSHA citation. To prove the defense, a contractor must demonstrate that it had safety procedures and guidelines in effect at the time of the accident that governed the incident, that it conveyed those rules effectively to the cited employee(s), that it took steps to discover and correct safety violations, and that the contractor has a history of enforcing its safety protocols through punishment in the form of oral or written reprimands, suspension, and termination.
Documents are needed to prove this defense, including, without limitation, safety manuals in both English and Spanish (if the contractor uses Spanish-speaking only employees); copies of toolbox talks, OSHA 300 and 301 logs; SDS (safety data sheets) and manufacturer’s recommendations detailing safety guidelines; personnel files that show the training received by the employees; documentation evidencing a history of enforcing the company’s safety measures over at least the last three years; and other documents showing commitment to training and safety on the jobsite. These documents can be used by the contractor to support its defense of unpreventable employee misconduct or show OSHA its commitment to safety training for purposes of requesting a more lenient fine.
Contractors should also retain all documentation relating to prior citations including any settlement agreements. Prior citations may form the basis for repeat violations in the future. Depending on the wording of the settlement stipulation, the contractor may have the opportunity to challenge both the previous citation and the current citation to avoid the repeat allegations.
Proper maintenance of safety documents and employee training is critical for defending any OSHA claim. By preparing in advance, a contractor will be able to better defend OSHA claims and either mitigate or eliminate future citations.
Author’s note: 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.
About the author: Trent Cotney is CEO of Cotney Attorneys & Consultants and NRCA General Counsel. For more information, contact the author at [email protected] or visit www.cotneycl.com.
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