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Practical Guide to The Occupational Safety and Health Act - Product Image

Practical Guide to The Occupational Safety and Health Act

  • ID: 2126946
  • December 2014
  • Region: United States
  • 922 Pages
  • ALM Media, LLC

The Occupational Safety and Health Act applies to virtually every employer in the nation. This fully annotated volume—designed to speed your research when OSHA problems arise—provides complete coverage from the points of view of employers, employees, the courts, and the agencies responsible for enforcement.

A Practical Guide to The Occupational Safety and Health Act discusses subjects such as: the practical impact OSHA has on a business; how employers should respond to an OSHA inspection or enforcement proceeding; the right of employees to initiate and participate in inspections; appropriate challenges in rulemaking and adjudication proceedings; and analysis of the statute and regulations to ascertain the rights of all parties. It includes coverage of: the possibility of criminal prosecution for OSHA violations and the degree to which an employer's “indifference” to violations can constitute “actual knowledge”; the doctrine of “unpreventable employee misconduct”; and the responsibility of architects, engineers and other professionals to ensure compliance with safety standards.

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CHAPTER 1
The Scope of Coverage Under the Occupational Safety and Health Act
- 1.01 Overview
- 1.02 Commerce Clause Under the Act
[1] Business Affecting Commerce
[2] Requirement of Having Employees
[3] Non-Governmental Agency
[4] Regulations Concerning Coverage
- 1.03 The Exemption for Employers Subject to Regulation by Other Federal Agencies
- 1.04 State Plans
[1] Establishment and Submission to OSHA
[2] Approval and Evaluation
[3] Developmental Status
[4] Operational Status
[5] Certification
[6] Complaints Against State Plans
[7] Approved State Plans
[8] Coverage of State Employees Only
[9] Comparison with Prior State Legislation
- 1.05 Preemption of State Law

CHAPTER 2
Constitutional Challenges to the Act
- 2.01 Introduction
- 2.02 The Framework of Constitutional Challenges
[1] Article III Challenges
[2] The First Amendment Challenge
[3] The Fourth Amendment Challenge
[4] The Fifth Amendment Challenge
[5] The Sixth Amendment Challenge
[6] The Seventh Amendment Challenge
[7] The Tenth Amendment Challenge
[8] Fourteenth Amendment Challenge
[9] The Right to Privacy
- 2.03 Constitutional Challenges to Inspection Warrants
[1] Introduction
[2] Inspection Warrants
- 2.04 Subpoenas and the Right to Privacy
[1] OSHA Subpoena Power
[2] NIOSH Subpoena Power
[3] The Right to Privacy
- 2.05 The Employee Medical Information “Access Rule”

CHAPTER 3
Procedural Aspects of OSHA Inspections
- 3.01 Introduction
- 3.02 Statutory Authority and Implementing Regulations
- 3.03 Search Warrants
[1] Exceptions to the Warrant Requirement
[2] The Warrant Regulation
[3] Challenging an OSHA Warrant
- 3.04 Aspects of Physical Inspection of Premises
[1] Credentials Presentation
[2] Opening Conference
[3] Walkaround Rights
[4] Walkaround Pay
[5] Trade Secrets
[6] Closing Conference
- 3.05 Employee Right to File Complaint
- 3.06 Imminent Danger

CHAPTER 4
Procedural Aspects of Citations
- 4.01 Issuance of Citation
[1] Chronology of Citation Issuance
[2] Six-Month Period for Citation Issuance
[3] Reasonably Prompt Issuance of Citations
[4] Service of Citation and Notice of Penalty
- 4.02 Amendment of Citation
[1] Pre-Contest Amendment
[2] Amendment After Contest Began
- 4.03 Notice of Contest
[1] Pre-Contest Conference
[2] Filing Period and Place
[3] Form of Notice of Contest
[4] The Requirement for Written Notice of Contest
- 4.04 The Secretary's Complaint
- 4.05 The Standard to Be Cited
[1] Specificity of Violations Alleged
[2] General Duty Clause vs. Specified Standard
[3] General Standards vs. Specific Standards
[4] Inapplicable Standards
- 4.06 Role of Employees or Employee Representatives
[1] Employee Notice of Contest
[2] Employer Notice of Contest

CHAPTER 5
Degrees of Violation, Penalties and Abatement
- 5.01 Degrees of Violation
[1] De Minimis Violations
[2] Other Violations Intermediate in Degree
[3] Serious Violations
[4] Repeated Violations
[5] Willful Violations
[6] Criminally Willful Violations
- 5.02 Penalties
[1] Civil Penalties
[2] Criminal Penalties
[3] State Criminal Sanctions
- 5.03 Abatement
[1] Failure to Abate
[2] Time for Abatement

CHAPTER 6
Substantive Aspects of Citations—Workplaces and Employer Responsibility
- 6.01 Introduction
- 6.02 What Constitutes a “Workplace”?
[1] Workplace Locus and Repeated Violations
[2] Relevance of Other Workplaces
- 6.03 Who Is the Responsible Employer?
[1] Supervision Requirements Found in the Statute
[2] Supervision Requirements Found in Standards
[3] Multi-Employer Supervision Problems
[4] Responsibility for Supervisors' Actions and Knowledge
[5] Responsibility of Equipment Lessors
- 6.04 Employer Responsibility for Employee Actions
[1] Employer Responsibility for Employee Training
[2] Employee Misconduct and the General Duty Clause
[3] Employer Responsibility for Employees' Actions Under the Specific Duty Clause
- 6.05 Regulation of Hazardous Chemicals
[1] Hazard Communication Standard (HCS)
[2] Material Safety Data Sheet (MSDS)
[3] Employee Training

CHAPTER 7
Substantive Aspects of Citations—Recognized Hazards, Knowledge and Foreseeability
- 7.01 Introduction
- 7.02 The General Duty Clause Requirement of Recognition
- 7.03 The Specific Duty Clause and the Requirement of Knowledge
- 7.04 De Minimis and Other Violations and the Knowledge Requirement
- 7.05 Serious Violations and the Knowledge Requirement
- 7.06 Repeated Violations and the Knowledge Requirement
- 7.07 Willful Violations and the Knowledge Requirement
- 7.08 Awareness of the Existence of the Act

CHAPTER 8
Multi-Employer Considerations
- 8.01 The Traditional Multi-Employer Relationship
[1] Introduction
[2] The Anning-Johnson/Grossman Steel Analysis
[3] Application by OSHRC
[4] Reaction by the Courts
[5] Responsibility of Professionals
- 8.02 The Lessor-Lessee Relationship
[1] Introduction
[2] Responsibility for Leased or Loaned Employees

CHAPTER 9
Pre-Hearing Procedures
- 9.01 Citations
[1] Time Limitations
[2] Notice of Contest
[3] Payment of Proposed Penalty
[4] Abatement
[5] Notice to Employees
[6] Transfer to Commission
[7] Amendment of Citation
[8] Status of Parties
[9] Complaint
[10] Answer and Affirmative Defenses
[11] Withdrawal of Citation
- 9.02 Pleadings and Motions
[1] Pleadings in General
[2] Position Statement
[3] Motions
[4] Response to Motion
[5] Leave to Intervene
[6] Assistance of Counsel
[7] Withdrawal of Notice of Contest and Settlement
- 9.03 Modification of the Abatement Period
[1] Factors to Be Considered in Filing Notice
[2] Posting
- 9.04 Narrowing the Issues
[1] Exchange of Information
[2] Discovery
- 9.05 Simplified Proceedings
-9.06 Sanctions for Noncompliance with Pre-Hearing Orders

CHAPTER 10
Conduct of the Hearings and Appeals
- 10.01 Introduction
- 10.02 Preparing Defenses for the Hearing
[1] Constitutional Challenges
[2] Denying Breach of a Standard
[3] The Standard Violates the Act
- 10.03 Findings of Fact
- 10.04 Making Objections
- 10.05 Burden of proof
[1] Preponderance of the Evidence
[2] General Duty Clause
[3] Specific Standards
[4] Feasibility
[5] Circumstantial Evidence
- 10.06 Rules of Evidence
[1] Introduction
[2] Hearsay Evidence
[3] Objections
[4] Informer's Privilege
- 10.07 Expert Testimony
- 10.08 Other Hearing Matters
[1] Offer of Proof
[2] Sequestration
[3] Miscellaneous
- 10.09 OSHRC Review of Interlocutory Appeals
- 10.10 Discretionary Appeals of Administrative Law Judge Rulings
[1] Written Decision
[2] Discretionary Review
[3] Oral Argument
[4] Unenforceaby Vague
[5] Penalties
- 10.11 OSHRC's Power of Review
- 10.12 Reopening Hearings
- 10.13 Judicial Review
[1] Introduction
[2] Substantial Evidence
[3] Deference to OSHA Interpretation
[4] OSHA's Interpretation Versus Commission's Interpretation
[5] Preserving Issues for Judicial Review

CHAPTER 11
Burden of Proof
- 11.01 The Preponderance of the Evidence Standard in OSHRC Proceedings
[1] Burdens of Persuasion and Going Forward
[2] Quantum of Evidence
- 11.02 The Substantial Evidence Standard on Appeal
- 11.03 Problems of Proof in Establishing a Preponderance of the Evidence
[1] Conflicting Evidence
[2] Hearsay
[3] Exclusionary Rule
[4] Objective Evidence
[5] Circumstantial Evidence and Inferences
- 11.04 Burdens of Proof Placed on the Secretary
[1] Feasibility of Compliance
[2] Exposure to Hazard
[3] Knowledge of Violation
[4] Repeated Violations
[5] Willful Violations
[6] Failure to Abate
[7] Applicability of Standard
- 11.05 Burden of Proof Placed on the Employer
[1] Affirmative Defenses
[2] Imminent Danger
- 11.06 Summary

CHAPTER 12
Defenses to Citations
- 12.01 Introduction
- 12.02 Procedural Defenses
[1] The Statute of Limitations Defense
[2] The Lack of Reasonable Promptness Defense
[3] The Failure to Timely Forward Notice of Contest Defense
[4] The Improper Service Defense
[5] The Lack of Commerce Clause Jurisdiction Defense
[6] Preemption by Another Federal Agency
[7] The State Plan Coverage Defense
[8] The Lack of an Employment Relationship Defense
[9] The Standard Was Improperly Promulgated Defense
[10] The Lack of Particularity Defense
[11] The Improper Amendment Defense
[12] The Vagueness Defense
[13] The Lack of Due Process Defense
[14] The Standard Was Revised Defense
- 12.03 Factual Defenses
[1] The Isolated Incident Defense
[2] The Greater Hazard in Compliance Defense
[3] The Impossibility or Infeasibility of Compliance Defense
[4] The Lack of Employer Knowledge Defense
[5] The Machine Not in Use Defense
[6] The Mootness Defense
[7] Unpreventable Employee Misconduct
[8] Vindictive Prosecution
[9] The Employee Was Experienced Defense

CHAPTER 13
Promulgation of Occupational Safety and Health Standards
- 13.01 Introduction
- 13.02 Incorporation of Pre-Existing Standards
- 13.03 Authority to Set New Standards
[1] Policy Factors for Setting New Standards
[2] Distinguishing Standards from Other OSHA Statements
- 13.04 Procedure for Setting New Permanent Standards
- 13.05 Procedure for Setting Emergency Temporary Standards
- 13.06 NIOSH and Advisory Committee Reports
[1] NIOSH
[2] Advisory Committees
[3] Emergency Temporary Standards
- 13.07 Substantive Factors in Setting New Standards

CHAPTER 14
Variance
- 14.01 Substantive Requirements for Permanent Variances
- 14.02 Procedures
[1] Interim Orders
[2] Temporary Variances
[3] Experimental Variances
[4] National Defense
- 14.03 State Plans

CHAPTER 15
Judicial Review Standards
- 15.01 Type of Judicial Challenges
[1] Statutory Authority
[2] Persons Who May Challenge a Standard
[3] Judicial Forums
[4] Jurisdictional Prerequisites
[5] Scope of Claims
[6] Consequences of Challenges
[7] Challenges of Agency Inaction
- 15.02 Challenging Standards Before Enforcement
[1] The Substantial Evidence Test
[2] The Substantial Evidence Test and Policy Decisions
[3] Judicial Findings of No Substantial Evidence
[4] Judicial Findings of Substantial Evidence
[5] The Need for OSHA's Statement of Reasons Supporting a New Standard
[6] The Claim of Unconstitutional Vagueness
[7] Medical Removal Protection
[8] Invalid Promulgation of the Standard
[9] Ultra Vires Regulation
- 15.03 Post-Enforcement Challenges to Standards
[1] National Consensus Standards
[2] Invalid Promulgation Procedures
[3] Feasibility
[4] Vagueness of the Standard as Applied

CHAPTER 16
Employee Rights and Duties and Private Rights of Action
- 16.01 Employee Rights
[1] The Non-Discrimination Provisions
[2] Who Is an Employee?
[3] The Actions Protected
[4] When the Protections Become Effective
[5] Refusals to Perform Work
- 16.02 Employee Duties
- 16.03 Private Rights of Action
[1] Use of OSHA Standards in Private Litigation
[2] Testimony by OSHA Inspectors
[3] Challenging Employer's Settlement Agreement with OSHA

CHAPTER 17
OSHA Recordkeeping Requirements
- 17.01 General Recordkeeping Authority
[1] Introduction
[2] Statutory Basis
[3] Specific Recordkeeping Requirements
[4] Burden on Employers; Unnecessary Duplication
- 17.02 Log and Summary of Work-Related Injuries and Illnesses (Forms 300 and 300-A)
[1] Location of the Log
[2] Use of a Substitute Record
[3] Inspection of the Log
- 17.03 Injury and Illness Incident Report (Form 301)
- 17.04 Reporting and Recording Requirements—Variations Depending on Extent of Injury, Accident or Illness
[1] Incidents Resulting in a Fatality or in Hospitalization of Three or More Employees
[2] BLS Statistical Program
- 17.05 OSHA Posters
Index

Note: Product cover images may vary from those shown

Walter B. Connolly, Jr.
Walter B. Connolly, Jr. is a member of the Detroit office of Connolly, Rodgers & Scharman, PLLC.

Donald R. Crowell II
Donald R. Crowell, II is the former Labor Counsel for Union Carbide Corporation in Danbury, Connecticut.

Note: Product cover images may vary from those shown
Note: Product cover images may vary from those shown

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