What Exactly is an OSHA Violation?
Prior to delving into the lawsuit process, it is important to have a fundamental understanding of what constitutes an OSHA violation. The Occupational Safety and Health Administration, or OSHA, is a division of the United States Department of Labor that oversees workplace safety and health standards. OSHA’s main purpose is to reduce workplace incidents, injuries, illnesses , and fatalities to protecting workers. It assists employers with maintaining safety by continuing to develop new regulations and standards for businesses.
A wide array of workplace safety violations can occur. If your employer is in violation of OSHA standards, you may be at risk of becoming injured if you have not already. Common OSHA violations include: failings to provide adequate eye and face protection, failings to provide hand protection and failing to implement proper fall protection equipment.
Further information on the most frequently cited OSHA violations can be found at OSHA.gov.
Evidence to Gather for an OSHA Violation Lawsuit
Once you have identified health and safety violations in the workplace and have resolved to sue the company for these offenses, the next step in the process is gathering evidence. This is an essential part of filing a successful lawsuit, as you need concrete proof of your claims’ validity before taking legal action. Whether the company you are considering suing is located in San Diego, California or Richmond, Virginia, there are a number of ways to document workplace injuries for future use in court. As you may have surmised, taking photographs of health and safety violations is not only wise, it is essential in reinforcing your personal injury case. When taking photos, be sure to include not simply the scene of the violations themselves, but also any surrounding context that may be relevant to your case. For instance, if a slippery staircase led to your accident, photos of this stairwell are of the utmost importance; likewise photographs showing the area outside the building may be useful, particularly if the company inadequately marked its loading dock or other such hazards. It is wise to document violations after they have been remedied, as well as before so that you can examine whether the company even had the proper safety measures in place to begin with. Thus, photos of the violations immediately following the incident and after they have been repaired are especially useful. In addition to photographs, witness statements are crucial parts of any health and safety violation lawsuit. Conversing with any witnesses who were in the area at the time of the accident while your memory is fresh is essential. Be sure to record as many details about these other witnesses as you can, including their contact information and a concise description of their account of the accident. Witness statements are vital because they confirm the veracity of the victim’s claims. For example, if you fell down an uneven staircase, witness statements that prove the company did not rectify this issue even after being notified is important evidence. Likewise, a record showing your immediate reporting of the incident to management can help prove that your injury was the result of negligence. In addition to witness statements, it is crucial that a receiving copy of all relevant documentation related to your case. For example, the company may have previous records of previous complaints or witnesses’ statements about the safety violations in question, which can help to further illustrate the company’s negligence. On top of all this, relevant documentation may also include your health insurance paperwork. Although health insurance companies may sometimes refuse to provide full documentation of a person’s medical history, they cannot do this indefinitely. Therefore, by requesting a copy of your medical history from your insurance provider, you will be able to proactively gather this evidence should you need it in the future. The investigation of an accident caused by a health and safety violation in the workplace does not end the moment that you step out of the hospital. Involvement of the Occupational Health and Safety Administration (OSHA) is widespread in these incidents, and OSHA agents may do everything from dispatching officials to search the site of the injury to ask affected employees pertinent questions to analyzing medical records and conducting interviews with all of those involved in the subject injury.
How to Report to OSHA and First Steps
After you file your complaint with the proper local OSHA office, they are supposed to investigate it. Your filing is assigned to a few different "compliance officers" who then determine if there is enough information to do an inspection.
Most complaints are fully investigated and sent on to regional OSHA administrators. OSHA regional administrators are high ranking supervisors and if they find that what you filed was legitimate and requires inspection, then more people from OSHA will come to investigate.
However, sometimes OSHA will decide that the complaint isn’t required to be inspected, at least not right away. If OSHA decides not to inspect, they should send you a letter explaining why not. You can then appeal their decision, which will just go to the next higher up official who may send someone out to inspect or may send you another letter telling you why they are not inspecting.
If OSHA does come out to inspect and they find violations, then they will issue citations against the company. The citations are something that help make a lawsuit easier because when OSHA finds violations, the company becomes liable for them.
So the next step after the citations are received by the company is to contest the citations. If the company doesn’t contest the citations immediately after receiving them, OSHA will issue fines. If the company waits too long and then contests the citations, fines may already have been levied, but you won’t be able to sue the company over those fines because OSHA can’t sue for citation fines. OSHA only inspects and issues citations for companies that abuse their workers or bring harm to their employees. OSHA actually encourages you to sue the company when they find that type of harm done to employees and will back you if you sue.
Legal Basis to Sue a Company for OSHA Violations
Companies can get sued for failing to assure the safety and health of their workers, and can certainly be sued for OSHA violations, but there are certain procedures that must be followed in order get the remedy that is desired. The law that allows employees to sue employers under the Federal Occupational Safety and Health Act, 29 U.S.C. §651 et seq. (OSHA), is found in OSH Act §662, which prohibits any state occupational safety and health law that is not at least as effective as the comparable federal law. Because California’s OSHA law is at least as effective as OSHA, an employee can bring a claim against his employer, in state court, under California law. Federal OSHA does not cover employees who are "farmed out" as employees to another employer, such as when a temporary employment agency provides workers to a skilled company. Some states have their labor agencies step in and provide enforcement of all of those workers who are farmed out, like California does. Other states do not, so the Federal law may apply to all workers, even those who are farmed out through temporary employment agencies. But the bottom line is that, generally, workers whose day to day employment does not take place on a private sector railroad are protected by either Federal or State OSHA laws and can seek remedy in court for the ill effects of a corporate violation of the law.
A worker does not necessarily lose his rights under OSHA merely because he was injured on the job. If an injured worker may be entitled to some kind of workers’ compensation benefit, it does not mean that he cannot also sue the company for OSHA violations that led to his injury. Employees do not have to elect between the two—OSHA and Workers’ Comp—laws. Both can run concurrently. And both can lead to an award of damages to an injured employee.
If the injured employee can prove that the employer’s violation of an OSHA standard led to his injury and was the proximate cause of his injury, he may be entitled to an award of damages. OSHA does require the injured worker to prove the employer had intent in order to establish a violation. Employers cannot be held liable for rules that were not communicated to employees. Here’s an example of a case in which an injured employee was awarded damages against his employer despite the employer’s argument the employee was not familiar with the regulations. Koch v. Hargis Indus., Inc., 1993 U.S. Dist. LEXIS 10320 (N.D. Ill. July 28, 1993).
Workers’ comp cases are heard before an administrative law judge and then can be appealed to a circuit court. If the injured employee also sues the employer (or other employees, if he alleges the employees acted "willfully and wantonly"), the employee is entitled to prove his case before a Circuit Court jury. It’s also possible an injured worker can bring both actions simultaneously—the workers’ comp claim and the civil lawsuit. This avoids the delay inherent in waiting for the workers’ comp lawsuit to wrap up, before the civil case starts. A plaintiff does not have to make either of these choices, however. This is a decision each plaintiff—each injured employee—must make with his lawyer.
Finding an Attorney to Represent You
When it comes to suing a company for OSHA violations, one of the most crucial steps you’ll take is hiring the right attorney to represent you. Given the complexities of OSHA regulations and the potential defenses a company may employ, having experienced legal counsel is vital to your case’s success.
Experience in OSHA Cases
Not all personal injury attorneys have experience with OSHA cases specifically. It is essential to ensure that the attorney you hire has prior experience handling OSHA violations and has achieved positive outcomes for their clients. During the initial consultation, inquire about the attorney’s experience in handling OSHA cases and their track record of success. Ensure that they are familiar with OSHA regulations and have the knowledge to handle your case effectively .
Questions to Remain Engaged
During your initial meetings with potential attorneys, ask questions and be engaged in the process. Some specifics to consider include: By gathering this information, you can better assess whether the attorney is the right fit for your case. Open communication between you and your lawyer is crucial as it establishes a strong working relationship and increases your chances of a successful outcome.
Credentials and Accolades
Look for attorneys who are recognized by their peers in the field. This can include memberships in professional organizations, awards for their work, or recognition in legal directories. Such accolades can be good indicators of an attorney’s capability and their reputation among peers.
By keeping these recommendations in mind, you can establish a strong relationship with your attorney and increase the likelihood of a successful outcome in your case.
Filing the Lawsuit
To officially file a lawsuit against a company for OSHA violations, your attorney must file a complaint in the appropriate court. The filing itself is a relatively minor, procedural matter. Complaints need to be filed in civil court, which does not have any special requirements. Courts have limited requirements with regard to the format of the complaint itself, but they do require that you state all applicable causes of action and make a demand for relief that is comprehensive enough to state an appropriate remedy. Once the complaint is filed, your lawyer will need to effectuate service on the defendant. Defendants can be served with a complaint anywhere in the United States, and that service will be valid. If the defendant is based outside the country, you will have to comply with the Hague Convention, an international treaty that identifies the process required to serve someone in a foreign country. Where a lawsuit is filed in the United States against a foreign company, there are no restrictions on the damages that can be awarded. However, there may be challenges implementing legal remedies in the sense that the company may not have any assets on U.S. soil.
Obstacles and Roadblocks to Anticipate and Overcome
Employees face numerous challenges when suing their employers for OSHA violations. One of the most common and difficult to overcome is proving that the company acted with negligence. The employer generally has greater knowledge than the average employee about the safety standards and elements of the job, so it becomes difficult to prove that the employer failed to follow them. Retaliation is another common problem that employees face when filing suit against their employer. You could face harassment from your coworkers, demotion, spread of false rumors about you, increased disciplinary actions and even termination. OSHA prohibits retaliation for filing an OSHA complaint, but protecting your career once the lawsuit has been filed will be a challenge nonetheless. Enlist the help of an Ohio lawyer who specializes in OSHA violations if you want the best chance of overcoming these challenges. Their familiarity with OSHA claims will help you navigate the issues that arise. If the employer attempts to fire you or harass you, you can also count on your attorney to help you file a retaliation complaint.
Potential Outcomes Including Monetary Damages
It is important to understand that the possible outcomes of such a lawsuit against a company are broad. The Occupational Safety and Health Administration (OSHA) enforces safety on the behalf of the federal government, but it doesn’t have the resources to convert every OSHA violation into a lawsuit. Many OSHA violations do turn into a lawsuit, however, and can even turn into a class action lawsuit where multiple affected employees will sue the same company for similar violations.
If lawsuits are filed, settlements or court rulings will cover a wide range. A ruling may decide that an employer must remove the hazards within a certain time limit. Money from such as a settlement could be used to pay for medical bills and wages lost while the victim was recovering. A settlement could also result in some form of improvement of conditions in the workplace. An employer may be required to provide better safety equipment and cross-train employees to handle dangerous situations.
The compensatory damages awarded to the plaintiff will depend on each individual case . There are three types of damages available in a personal injury lawsuit: general damages, special damages, and punitive damages. For example, if a jury finds a defendant liable for negligence, it may award general damages to the plaintiff, which are the result of mental and/or physical suffering, generally known as ‘pain and suffering’ damages, and special damages to compensate for all economic losses such as lost wages.
Compensatory damages should never exceed $250,000 for pain and suffering, although exceptions can be made in rare cases with catastrophic injuries. The defendant can be ordered to pay an additional amount of either double or triple the economic losses if he or she intentionally caused them. In such a case, the punitive amount would cap out at $500,000.
There is also a motion called a remittitur, which, upon motion by the defendant, the judge reduces the amount of damages awarded to what the court considers to be reasonable. If this is not acceptable to the plaintiff, the plaintiff may reject the judgment entirely (assuming the judge added one) and start all over again.