Aaron Gelb, Co-managing Partner at Conn Maciel Carey, joined our May Risk Control Webinar to discuss the critical importance of engaging legal counsel before workplace safety issues escalate into costly enforcement actions.
Conn Maciel Carey is a boutique law firm focused on labor and employment, workplace safety, and litigation. During his presentation, Gelb outlined the Occupational Safety and Health Administration’s (OSHA) proactive strategy and its increase in citations.
Continue reading for an overview of Gelb’s presentation.
Gelb highlighted OSHA's increasingly proactive enforcement approach, particularly through National Emphasis Programs (NEPs) that can significantly expand inspection scope. He noted that national, regional, and local emphasis programs covering areas such as heat exposure, amputations, and combustible dust can transform a routine complaint inspection into a comprehensive facility review.
"If you're a manufacturing facility and OSHA comes out to inspect a forklift complaint, they can expand into your entire hazardous energy control and machine guarding programs through NEPs," Gelb warned.
OSHA has steadily raised financial penalties in recent years, with Gelb noting that fines increase annually based on cost-of-living adjustments. Following a significant 80% increase authorized by Congress in 2016, repeat and willful citations can now reach $161,000 per violation, with that figure expected to approach $170,000 in 2025.
OSHA set a record in 2023 with 391 enforcement actions exceeding $100,000, surpassing the previous year's citation record of 343. Gelb expects 2024 numbers to reach or exceed 400 significant enforcement actions.
According to Gelb, the agency has systematically increased repeat citation rates yearly from 2.4% in 2002 to nearly 6% in 2023. Gelb outlined several strategic changes OSHA has implemented to achieve this increase, including treating all facilities in federal OSHA states as one corporate entity and extending the lookback period from three to five years.
OSHA has expanded its Severe Violator Enforcement Program (SVEP), which Gelb described as the agency's "bad actor list" or "worst of the worst." Previously limited to specific high-hazard industries, the program now applies broadly, requiring only two repeat citations for inclusion.
Gelb noted that SVEP inclusion often results in increased insurance rates, negative press releases, hiring difficulties, and union organizing efforts.
Gelb outlined seven key areas where early legal engagement with counsel can prove beneficial. (Please note: the following information is for educational purposes only and should not be interpreted as legal advice.)
Employers should consider engaging counsel for external audits, particularly concerning potential findings. Attorney-retained auditors provide privileged communications, allowing employers to address issues without creating discoverable evidence.
Proper maintenance of OSHA logs and incident forms is crucial, as inaccurate records can lead to selection for site-specific targeting inspections, per-instance citations for each erroneous entry, public disclosure through Freedom of Information Act requests, and negative impact on Workers' Compensation (WC) rates.
Serious incidents requiring measured responses include fatalities (8-hour reporting requirement) and amputations, hospitalizations, and eye loss (24-hour reporting requirement).
Remember to ensure accurate reporting rather than rushing, as incorrect information can create suspicion during subsequent inspections, said Gelb.
Notice of Alleged Hazard letters are common and can originate from current employees, former employees, or even members of the public. These complaints often trigger inspections and require careful response strategies.
When OSHA arrives for an inspection, proper preparation and legal guidance can significantly impact the outcome and scope of the investigation.
Strategic response to citations can minimize penalties and avoid escalation to more serious violation categories.
When citations proceed to litigation, experienced counsel becomes essential for protecting the employer's interests and achieving favorable outcomes.
When citations are issued, employers have several options beyond simply accepting the citation and paying fines, which Gelb strongly discouraged.
“Settlement through informal conferences resolves 94% of all citations,” Gelb said.
Gelb concluded the presentation with guidance on selecting appropriate counsel, emphasizing the importance of experience over general legal expertise.
"It's not hiring a lawyer that might change the relationship with OSHA. It's hiring the type of lawyer," Gelb explained, distinguishing between experienced safety counsel and general practitioners who handle occasional OSHA matters.
Key questions for potential attorneys include their percentage of practice devoted to workplace safety, experience with similar cases, team composition, relationships with OSHA offices, and overall philosophy toward agency interactions.
“Proactive preparation and experienced legal guidance can prevent minor issues from escalating into major compliance problems and substantial financial penalties,” concluded Gelb.
This presentation was part of Captive Resources’ Risk Control Webinar Series — regular installments of webinars to educate the group captive members we work with on topics like workplace safety, organizational leadership, and company performance. The thoughts and opinions expressed in these webinars are those of the presenters and do not necessarily reflect Captive Resources’ positions on any of the above topics.
