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Proactively Managing OSHA RISK and Effectively Responding to OSHA Citations—Part 2

A.Introduction

     This is the second installment of a two-part series detailing: (1) strategies and approaches to prevent OSHA citations; and (2) effectively responding to OSHA citations.  In the first article, methods for preventing OSHA citations were described.  In this issue, OSHA citation procedure and methods for effectively responding to an OSHA citation are identified.

     B.Effectively Responding to OSHA Citations

     In the event that an employer receives an OSHA citation, decisive and informed action must be taken immediately.  Upon receipt of a citation, an employer only has 15 working-days to take the following actions:  (i) request and participate in an informal conference; (ii) pay the proposed penalty or settlement amount; or (iii) formally contest the citation.  After the 15 working-day period expires, the citation and proposed penalties become final and the options available to the employer become extremely limited.  

      I.Informal Conference

     In an i…

Managing OSHA RISK and Effectively Responding to OSHA Citations—Part 1

A.Introduction

     Enacted in 1970, the Occupational Safety and Health Act (the “Act”) was created “to assure safe and healthful working conditions for working men and women by authorizing enforcement of the standards developed under the Act.”  The Act also created the Occupational Safety and Health Administration (“OSHA”) to enforce the Act’s safety regulations, and the Occupational Safety and Health Review Commission (“OSHRC”), an independent adjudicatory body designated to preside over formal contests between employers and OSHA.

     While many employers are familiar with OSHA’s authority to inspect construction job sites without prior notice and their ability to issue citations for violations of the Act’s regulations, many employers fail to establish the internal procedures necessary to minimize the financial risk posed by OSHA Citations. This article is the first of two articles on OSHA Citations.  This article identifies certain internal procedures that an employer should esta…
THE LESSER KNOWN DEFENSES TO PREFERENCE ACTIONS

     If you or your company have had any exposure to adversarial proceedings you are likely familiar with the terms ordinary course, new value and contemporaneous exchange for new value. Apart from these “better known” defenses to preference claims, the Bankruptcy Code provides for additional defenses which you may not be as familiar.

     These “lesser known” defenses are: the Earmarking, Conduit and Agency defenses. Because they utilize the similar terminology and application, they are easily confused. In fact, often times they are improperly combined into a single defense! Just like the “standard” preference defenses listed above, if any of these defenses apply, they are a complete defense to an otherwise avoidable transfer.

The Earmarking Defense: In large construction projects developers/owners (in this case the “debtor”) will often seek funding from a third party lender (bank) in order to finance the project. These third party le…

A SUBCONTRACTOR’S HOSTILE WORK ENVIRONMENT CAN BE A GENERAL CONTRACTOR’S LIABILITY

In December 2013, the Sixth Circuit Court of Appeals held that a general contractor could be liable under Title VII for a hostile work environment claim brought by a subcontractor’s employee under a “joint employer theory.” EEOC v. Skanska USA Building, Inc., No. 12-5967 (6th Cir. Dec 10, 2013). In Skanska, the subcontractor’s employees complained directly to the general contractor about the hostile work environment, alleging that they were the subject of racial slurs and epithets including “the n-word” and were subjected to graphic depictions such as a picture of a Caucasian person shooting an African-American posted in the port-a-potty. The alleged offenders were employees of the general contractor, other subcontractors, and third parties. Despite having knowledge of the complaints, the general contractor took no action to remedy the problem, instead directing the subcontractor to fire the complaining employee due to them being a “poor fit.”
     Why was the general contractor l…