SFT 580 – midterm

Constitution of the United States

The first ten amendments to the Constitution

law that involves the interpretation and application of the U.S. Constitution and state constitutions

U.S Supreme Court

Carries out the laws

Makes laws

Interprets the laws

Powers of Congress... "to regulate Commerce..."

A system in which power is divided between the national and state governments

general authority...specifically enumerated

Freedom of Religion, Speech, Press, Assembly, and Petition

Freedom from unreasonable searches and seizures

Previously amended to make clear OSHA's authority to seek ex parte warrants

... to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our Human Resources."

May also cover only public sector employees

OSH Act encouraged states to develop and operate their own plan under OSHA guidance. Must be at least as effective as the federal program. Must cover state and local government employees and may limit coverage to only the public sector.

OSHA

Each employer has a general duty to furnish each employee a place of employment free from recognized hazards that cause or are likely to cause death or serious physical harm.

General industry (1910), Construction (1926), Maritime, and Agriculture (1928)

NIOSH, labor representatives, Secretary of HHS, state and local governments...

1. advanced notice of proposed rule making (optional)
2. notice of proposed rule making
- terms
- comment period
3. public hearing
4. final rule published in FR

Standards are imposed by OSHA without immediately going through the typical process where an employee is exposed to grave danger from exposure to substances and the standards are necessary to protect employees from the danger.

ETS is then subject to usual procedure for adopting standards except that a final ruling must be made within 6 months

Within 60 days of promulgation, anyone who may be adversely affected by a standard may file an appeal with the U.S. Court of Appeals

may be granted to an employer who cannot comply with a standard by its effective date

May be granted to employers who prove their abatement plan will provide a safe and healthful workplace as effectively as would compliance

- 11 employees or more? must maintain records.
- 10 employees or fewer? exempt from record keeping unless selected by BLS.
- low-hazard employer? not required to keep records.
- ALL EMPLOYERS must comply with OSHA standards and report accidents that cause death or hospitalization of 3 or more employees (within 8 hours)

maintained on a calendar year basis and must be maintained for 5 years and be available for inspection

summary of records for the year must be posted at each establishment no later than Feb 1, and kept in place until March 1.

every establishment covered by the OSH Act is subject to inspections by OSHA compliance officers, and with some exceptions, inspections are conducted without advance notice

1. Opening meeting
2. Program Review
3. Walk through
4. Interviews
5. Closing conference

1. Applicable standard
2. hazard existed
3. employee was exposed
4. employer knew, or should have known of the violation

-The compliance officer can issue a citation to the employer that specifies the exact practice or situation that violates the act
-The employer must post the citation
-Fines may be assessed against the employer
-Criminal penalties may also be assessed

Other than Serious - $$$$$
Serious - $$$$$
Repeat - $ times 2 to 5
Willful - $$$$$$
Failure to Abate - $ times days left unabated

Falsifying records, reports, or applications can bring a fine of $10k or up to 6 months in jail, or both

Assaulting a compliance officer or interfering with their duties is subject to a fine of not more than $5k and imprisonment for not more than 3 years

Any employer who willfully violates any standard, rule, or order promulgated pursuant to section 6 of the Act, or of any regulations, and the violation caused death, shall be punished of a fine not more than $10k or by imprisonment for not more than 6 months.. or both

employer may request an informal meeting with OSHA's area director to reach a settlement agreement.
- The employer may ask for an extension of abatement through a PMA
- Employer may contest the citation, abatement period, or proposed penalty within 15 working days -- NOTICE OF CONTEST

Independent agency that adjudicates contests of citations and/or penalties from OSHA

Impartial judge who presides over an administrative agency hearing and has the power to conduct hearings, receive evidence, rule on questions of evidence, and make determinations of fact.

Their decision is reviewed by panel of Commissioners

15 days after receipt of citation

file a written Contest and file it with the area office by the end of the contest deadline.
- contest penalty or penalty and citation items

1. DOL notifies OSHRC
2. Employer is notified
3. Employees are notified
4. Employee proves to OSHRC that employees have been informed (provides certification)

employees have the right to participate fully in a hearing - this means receiving all official filings and notices.. must be filed in writing within 10 days of hearing

1. retention of case for some period of time at area office for formal settlement
2. referral of case to secretary of labor for litigation

must be done within 20 days from receipt of Notice of Contest

The pleading made by a plaintiff alleging wrongdoing on the part of the defendant; the document that, when filed with a court, initiates a lawsuit.

identifies and details the alleged violation contained in the violation

Procedurally, a defendant's response to the plaintiff's complaint.

Written in response to the Complaint filed by SOL and briefly states the denial of allegations and the wish to contest.. also states specific defenses to allegations

may be assigned if no willful or repeat violations, no fatality, low penalty.. parties have the right to object simplified proceedings

Employer:
1. receives complaint
2. files an answer within 20 days
3. discuss discovery techniques with judge
4. discuss possible settlement
5. engage in discovery
6. discuss settlement again
if no settlement...
- participate in hearing
- judge issues decision (can request review of decision if unsatisfied)

A phase in the litigation process during which the opposing parties may obtain information from each other and from third parties prior to trial.

Document exchange, interrogatories and answers, depositions, request for admissions

sworn testimony by a party to the lawsuit or by any witness, recorded by an authorized court official

OSHRC Rules 60-74

An ALJ will decide to affirm, modify, or vacate the citations
- parties can file a petition for discretionary review to object decision

- OSHRC does not grant review: ALJ decision is final order
- OSHRC does grant review: they will issue their own written decision that becomes final order
- no review granted? parties may file appeal with US court of appeals within 60 days of issued decision

1. free from recognized hazards that cause serious harm/death
2. each employer shall comply with these standards

each employee shall comply with OSHA standards

employers are responsible for employee compliance

1. determination of employer/employee relationship
2. independent contractors
3. owners/co-owners/partnerships
4. statute of limitations
5. failure to timely forward notice of contest
6. improper service
7. lack of reasonable promptness
8. constitutionality (commerce clause)
9. pre-emption

1. Prima facie not reached
2. Multi-employer citation

employee exposure not documented
- equipment not in use or is not used
- not reasonably exposed due to distance/guarding/circumstances

a claim which, if established by the employer, will excuse the employer from a violation that has otherwise been documented by OSHA

1. isolated event
2. impossibility/infeasibility of compliance
3. greater hazard