Employers are given the opportunity to challenge OSHA citations and investigations that may be improper. Under Section 8(a) of the Occupational Safety and Health Act, OSHA requires inspections to be conducted in a reasonable manner, at reasonable times, and conducted within reasonable limits. However, an employer may raise an affirmative defense against an inspection, claiming that the inspection was in violation of the ‘reasonable’ standard OSHA requires. An affirmative defense is a defense that allows the defending party to bring new facts and evidence in attempt to negate a claim against the employer. Here, an employer may bring evidence to prove that OSHA conducted an unreasonable inspection and show that OSHA failed to comply with its own Section 8(a) standard.
First, when collecting evidence, an employer must keep in mind the threshold for evidence in showing that an inspection was improper – i.e., the evidence must prove that the OSHA officer “substantially” failed to comply to Section 8(a). Therefore, evidence of misconduct is needed to raise the defense properly. For example, an employer may present proof that a compliance officer conducted the inspection for the sole purpose of harassing the employer to support their defense of improper inspection.
Second, when bringing this defense, employers must show actual prejudice or bias was imposed against them as a result of the inspection. A general claim that prejudice may not be enough in some circumstances. Rather, an employer should include facts as to why the inspection was prejudiced. For example, asserting that the inspection was prejudiced because the compliance officer failed to properly exercise their statutory duty under Section 8(a), may be enough to satisfy the ‘prejudice’ requirement.
To conclude, employers have options to defend themselves against unreasonable citations or inspections. When raising the affirmative defense of improper inspection, it is essential that the employer have sufficient evidence to support the defense. Also, the inspection must have a prejudicial component to be rendered improper. Ultimately, if this defense is raised properly, it will show that the OSHA officer failed to comply with the standards provided by Section 8(a) in the Occupational Safety and Health Act.
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