have the right to take sideby-side photographs and duplicate OSHA’ s measurements, sampling and other investigations. Do not hesitate to exercise these rights. OSHA inspectors know you have them.
Although an OSHA inspector may interview non-supervisory employees privately( and may insist on doing so), an employer representative, including counsel, has a right to participate in all management interviews. Employees are not required to sign a statement or the inspector’ s interview notes or give video and / or audiotaped statements.
Evaluate Potential Defenses
It is important to have at least a basic understanding of certain procedural and substantive defenses to citations. Some popular defenses include:
( 1) the wrong employer was cited
( 2) unpreventable employee misconduct( 3) vagueness of the standard( 4) no hazard exists( 5) duplicative citations( 6) greater hazard posed by compliance( 7) impossibility / infeasibility of compliance( 8) allocation of responsibility by contract( 9) violation not within the scope of employment
( 10) new citation not“ substantially similar” to prior citation( if cited for a“ repeat” citation).
The unpreventable employee misconduct defense warrants special discussion. If you can establish that an employee’ s violative conduct was unknown to the employer and in violation of an adequate work rule, which was effectively communicated and uniformly enforced, then no citation should be issued. This underscores the importance of not only establishing a comprehensive and effective safety plan but also communicating the plan to employees, inspecting the site and enforcing the plan.
By seeking to incorporate the above strategies, the dual purpose of promoting safety and minimizing exposure will be served, all to your benefit and the benefit of your employees.
Michael Rubin, who has more than 20 years of litigation experience, is a recognized thought leader in workplace safety and OSHA compliance who provides comprehensive counsel on all aspects of occupational safety and health law across multiple industries. He represents employers during the OSHA inspection process and routinely litigates before the Occupational Safety and Health Review Commission and in State Plan jurisdictions.
18 August 7, 2026 www. contractorshotline. com