It Can Be Done: An Employer’s Challenge to an OSHA Citation was Recently Upheld by the Eighth Circuit Court of Appeals

The U.S. Secretary of Labor (“Secretary”) acts through the Occupational Safety and Health Administration (“OSHA”) to create and enforce workplace health and safety standards. The Occupational Safety and Health Review Commission (the “Commission”) is the final administrative decision maker in federal OSHA claims. Typically, the Commission affirms the Secretary’s interpretation and enforcement of a particular standard. This case is unusual because the employer won: the Commission refused to adopt the Secretary’s interpretation and the Commission’s decision was affirmed by the Eighth Circuit Court of Appeals. In Minnesota, the state OSHA agency enforces most federal OSHA standards. Those states with state OSHA agencies do the same.

The Eighth Circuit issued a decision on October 13, 2015 in a case involving a series of citations issued against Loren Cook Company. The Secretary imposed a $490,000 fine against Loren Cook arising out of the death of a Loren Cook lathe operator when a 12-pound rotating metal work piece broke free from the lathe, flew out of his machine and struck him in the head. The Secretary cited Loren Cook for seven OSHA violations for failure to employ barrier guards to protect workers from ejected work pieces. The administrative law judge (“ALJ”), however, who initially heard the case (after conducting a 20-day hearing) vacated the citations the Secretary had issued against Loren Cook. The Commission upheld the ALJ’s decision. Unhappy with the Commission’s decision, the Secretary petitioned the Eighth Circuit for review of the Commission’s order, but lost.

The Secretary argued that deference should be given to an agency’s interpretation of its own regulations. The Eighth Circuit found that deference to the Secretary’s interpretation of this standard was inappropriate for primarily three reasons:
1.         The regulation covers hazards such as those created by flying chips and sparks. To interpret this standard to apply to this improbable event strains a common sense reading of the standard.
2.         The Secretary did not provide evidence that he had consistently interpreted this standard to cover the ejection of large objects from a lathe.
3.         The Secretary’s interpretation, which the Court found to be unprecedented, amounted to unfair surprise.

Therefore, the standard does not apply to the conduct for which the Secretary cited the employer. This case demonstrates that in some circumstances an employer can successfully challenge the Secretary’s interpretation of an OSHA regulation.

If you believe you have been wrongly cited for an OSHA violation and want to contest it, please contact any of the lawyers in the Larkin Hoffman Employment Law Group.