James Curtis and Brent Clark Quoted in Occupational Health and Safety Reporter
"Construction: OSHA Uses New Weapons to Target Construction Firms During Inspections"

Speaking before contractors and safety consultants at the 17th Annual Construction Safety Conference and Exposition in Chicago on February 14, James and Brent noted that the Occupational Safety and Health Administration is aggressively targeting construction firms for enforcement with new weapons including cooperative inspections with the U.S. Environmental Protection Agency, a "bad actors'' policy, and more frequent use of "repeat'' violations. The article "Construction: OSHA Uses New Weapons to Target Construction Firms During Inspections" in the February 22, 2007 issue of Occupational Health and Safety Reporter notes "James Curtis and Brent Clark, both of the Chicago office of Seyfarth Shaw LLP, said construction companies need to maintain comprehensive worker safety and hazard protection programs if they hope to survive an OSHA inspection. But firms also need to be aware of OSHA's investigative and enforcement strategies if they hope to avoid potentially costly penalties. While this advice would be important in any industry, Curtis said construction firms need to be especially vigilant because OSHA is clearly targeting them. Of the nearly 40,000 inspections performed by OSHA in 2004, 22,360 or 57.1 percent involved construction firms. He noted that all manufacturing company inspections represented just 22.4 percent of the OSHA inspections that year."

"Curtis encouraged employers to look at their citation and compliance histories. Firms with past willful citations, repeat violations, and job-related accidents should expect close scrutiny from OSHA for several years. That enhanced scrutiny will translate into more inspections and, for large employers, inspections of worksites in multiple jurisdictions. In addition, enforcement will be more stringent, generating more citations, higher penalties, and potential criminal charges. "OSHA is really targeting these bad actors,'' he said. "OSHA wants to know what they are doing out there. This is consistent with the data explaining how the inspections and citations are breaking down.'' Clark warned that construction firms risk being tarred as bad actors each time they settle with OSHA and consent to a minor violation. This slippery slope is becoming more dangerous in light of the agency's focus in recent years on repeat violations."

"In most cases, Clark noted that OSHA has decided to ignore willful violations through its enforcement program. This is due in large part to the relatively high legal threshold for proving a willful violation. But Clark said the agency has enhanced its efforts with respect to repeat violations because the legal threshold is manageable and the penalties are substantial. In light of this development, Clark said construction firms should consider contesting alleged violations that they might have chosen to settle a few years ago. "Any citation you accept carries the risk of a repeat where you will have very little ability to defend yourself,'' Clark said. "The level of evidence required --'the threshold'-- is incredibly low. So any citation that is accepted carries a risk it didn't previously carry.'' "So we need to revise our thinking,'' Clark added. "We need to be defending against citations we think we can beat.'' Clark said a defensive strategy is especially important with respect to large companies operating in multiple jurisdictions. He said OSHA has shown little flexibility when a settled citation in one state is followed six months later by charges of a repeat violation with a subsidiary on the other side of the country."