OSHA Corner
What's New in the World of Job Safety?
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Jennifer Chapman, Construction Assistant
(left) and Andrew Balcar
(right)
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Reprinted from April 2008 Brickerconstructionlaw.com
The Occupational Safety and Health Administration (OSHA) can seriously affect any Contractor or construction project. Compliance with OSHA regulations can be time-consuming and tedious, but it is essential to maintain a viable position in the construction industry. This month, as always, we report on recent developments in the world of OSHA.
How the Equal Access
to Justice Act Applies to OSHA Proceedings
The Equal Access to Justice Act (5 U.S.C. 504) allows for the award of attorney fees as well as other expenses to a prevailing party to certain administrative proceedings before the Occupational Safety and Health Review Commission. This Act allows an entity such as a contractor, individual, or tax-exempt organization (other than the federal government) to recoup fees spent in proceedings with OSHA. There are, however, many hurdles to jump in order to recoup attorney fees. This article explains the application process and what standards need to be met to be successful.
There are five types of eligible applicants included in section 2204.105 of the procedural rules for the Occupational Safety and Health Review Commission.
The sole owner of an unincorporated business with a net worth of not more than $7 million, including both personal and business interests, and employs not more than 500 employees.
A charitable or other tax-exempt organization (described in section 501(c)(3) of the IRS code) with not more than 500 employees.
A cooperative association as defined in section 15 (a) of the Agricultural Marketing Act with not more than 500 employees.
Any other partnership, corporation, association, or public or private organization that has a net worth of not more than $7 million and employs not more than 500 employees.
An individual with a net worth of not more than $2 million.
The following are the types of proceedings covered under the Equal Access to Justice Act as they relate to OSHA proceedings. They are contests of citations, notifications, penalties, or abatement periods by an employer, contests of abatement periods by an affected employee or authorized employee representative, and petitions for modification of the abatement periods by an employer.
The party seeking an award of fees and other expenses must file specific information within thirty days of a final disposition in the matter.
The party is to show in the application that it is a prevailing party, an eligible party, and the amount sought (including an
itemized statement from any attorney, agent, or expert witness representing or appearing on behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed).
A prevailing party means a party that has been successful on any significant issue in litigation that achieves some of the benefit the party sought. A party must also show the lawsuit was a material factor in bringing about the desired result and the outcome was required by law and was not a gratuitous act by OSHA. In addition, the party must allege that the position of OSHA was not substantially justified.
Secretary of Labor v. Salco Construction, Inc. – What Does Substantially Justified Mean?
What does substantially justified mean and how has this requirement been interpreted? We look to the case of Secretary of Labor v. Salco Construction, Inc., OSHRC Docket No. 05-1145 (July 18, 2007), for the answer. In Salco, we see how an administrative law judge and the review commission interpret the phrase “substantially justified.”
During the erection of steel for a new retail store, Salco was issued two citations. One of the citations was serious and one was a repeat citation alleging a total of three violations. A final determination was made, and the judge vacated one of the citation items and affirmed the other two remaining items.
Salco sought to recoup their attorney fees for defending itself from the violation that was vacated. Salco’s application was denied by the administrative law judge. Salco appealed and the denial was affirmed by the Commission. The Review Commission had to determine if the compliance officer acted in a substantially justified manner when it gave Salco the citation that was ultimately vacated. The fact that a citation is ultimately vacated by the court is not enough evidence to show that OSHA actions were not substantially justified.
The vacated citation was issued because the employer allegedly failed to protect two employees on an elevated scaffold platform from a fall hazard in excess of ten feet (see 29 C.F.R. 1926.451 (g)(1)). A Compliance Officer observed the two employees on an elevated platform supported by a Gradall Telehandler that was open on the side that faced the eave of the building.
According to 29 C.F.R. 1926.450(b), however, where the platform was close to the eave of the building the eave served as fall protection. The CO testified he saw the Gradall’s wheels move with the employees on the platform, exposing the two workers to a fall hazard on the unprotected side of the platform. Instead of the platform being pushed against the eave, a gap allegedly formed between the eave and the platform exposing the employees to a fall hazard.
The violation was vacated because the Secretary failed to show by a preponderance of the evidence that the open side was more than 14 inches from the eave (the maximum distance permitted by 29 C.F.R. 1926.450(b)). However, the observations of the CO, the photographs, and the operation’s manual all establish the CO was substantially justified in issuing the citation.
The Commission, after reviewing the administrative law judge’s decision to deny the application, stated, “given the evidence the Secretary had, we believe it was reasonable for her to infer that when the forklift moved there was a fourteen-inch gap between the wall and the platform, and we see no reason to overturn the judge’s finding of substantial justification for purposes of denying an award of EAJA fees.”
This case demonstrates to potential applicants that besides meeting all of the eligibility criteria, in order to prevail under the Act, one must also show OSHA did not act in a substantially justified manner when it issued the citation. Depending on the facts of the case, this is a difficult burden to overcome.
