Michael Fox

Ogletree Deakins P.C.
Austin, TX
www.OgletreeDeakins.com
Michael.Fox@OgletreeDeakins.com
(512) 344-4711

Michael W. Fox has 30 years of experience representing employers, has been Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization since 1980 and is a Fellow in the College of Labor and Employment Lawyers. He has been regularly listed in the Best Lawyers in America in Labor and Employment Law, as a Texas Monthly ’Super Lawyer’ in employment litigation.

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Q. Our company just received a citation from the U.S. Occupational Safety and Health Administration (OSHA). The proposed penalty is only $120. Is it worth getting a lawyer involved, or should we just go ahead and pay the fine?

A. You should definitely discuss the situation with an attorney experienced in OSHA matters. The amount of the proposed penalty is rarely the chief consideration in deciding how to handle a citation.

One of the most important factors you must consider is the cost of abatement. When OSHA issues a citation and the employer doesn’t challenge it, the employer must correct the condition cited. In many instances, that’s easy. In other cases, however, the cost of correcting the condition can be hundreds or thousands of times more expensive than the proposed penalty.

Other factors you should consider include:

• The technological feasibility of abating the condition
• The possibility of the condition recurring and the company receiving a “repeat” citation—potentially an even more important consideration given increased emphasis on enforcement activity under the Obama administration
• The possibility of criminal liability
• The impact of the citation on other pending litigation
• Whether there are good defenses to the citation

After considering these factors, and any others that may apply based on the conditions and the safety standard cited, it might not be worth contesting a $120 penalty. Just don’t base your decision solely on the amount of the penalty.