4th Circuit Underscores the Importance of Understanding OSHA’s Litigation Process

By Maria Greco Danaher April 13, 2022

Takeaway: It is important to fully understand the procedural issues in a matter being heard by a court. In this case, because OSHA had not put in evidence about the company's safety program, there was no need for the company to submit that evidence as an affirmative defense. Doing so actually established the basis for the ALJ's reliance on the safety program as the decisive issue at that stage of the case and created the need for federal court review.

The litigation of a safety-related lawsuit may seem complicated, but it consists of four basic steps, which were outlined in a recent 4th U.S. Circuit Court of Appeals decision.

The four steps are:

  • The Occupational Safety and Health Administration (OSHA) investigates and makes determinations related to the applicable safety regulations in a workplace, issues citations for violations of those regulations, and determines the amount of fine imposed for any such violations.
  • A company can appeal the citations and fine, and an administrative law judge (ALJ) hears that case, either affirming OSHA's decision or reversing it.
  • The Occupational Safety and Health Review Commission may review the ALJ's decision. If it does not, that ALJ's decision become a final order.
  • A final order can be appealed by the unsuccessful party to a federal U.S. Circuit Court of Appeals.

Facts of the Case

The 4th Circuit was asked to address a final order in a workplace injury litigation. The court found that because of a procedural error by an ALJ in the imposition of liability on an employer, that ALJ's decision should be reversed.

An employee of an electrical company was severely burned when he picked up a live electrical wire at a jobsite. At that jobsite, work was to be done during a planned power outage. Despite the company's safety rules and procedures, one electrical line remained "energized" and was picked up by the employee, causing the serious burns.

During the post-accident investigation, two supervisors falsely reported that all lines had been grounded and de-energized prior to the accident. It was later determined that the two actually had grounded and tagged the lines immediately following the accident.

Procedural History

OSHA found three serious violations in that situation and imposed a fine, which the company contested. An ALJ conducted a hearing and affirmed the citations, finding that the company's safety program was inadequate to have prevented the injury. The commission declined to further review the matter, so the ALJ's decision became a final order, which the company appealed to the 4th Circuit.

The 4th Circuit Untangles the Process

The 4th Circuit reversed the case, based on a technical—but important—procedural issue. In reviewing the ALJ's decision, the 4th Circuit found that OSHA had not sufficiently established its prima facie case of showing that the company's safety program was inadequate. If OSHA cannot establish a prima facie case, the matter cannot go forward and is dismissed.

In its case before the ALJ, OSHA claimed that the injury was reasonably foreseeable and that therefore, the company had "constructive knowledge" that a violation would occur. The company responded in its defense that it had an adequate safety program and had that program been followed, the injury would not have occurred. The ALJ disagreed with the employer and found the company's safety program lacking. The ALJ then held that because the program was inadequate, the foremen's violations were foreseeable, and the company should have known that an accident could occur. The ALJ therefore affirmed OSHA's original decision.

This is important because when OSHA relies on the inadequacy of a safety program to prove its case, it is required to submit evidence of that lack in its prima facie case. If it does not, the case can go no further and the citations are dismissed.

In this case, the ALJ used information presented by the employer to establish what OSHA should have established in its initial portion of the case but failed to do. Based on that fact, the 4th Circuit reversed the ALJ's decision and sent the matter back to the commission for rehearing.

New River Electrical Corporation v. Occupational Safety & Health Review Commission, 4th Cir., No. 20-2173 (Feb. 1, 2022).

Maria Greco Danaher is an attorney with Ogletree Deakins in Pittsburgh.



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