Safety and OSHA News

OSHA ordered to pay company’s attorney fees for appeal of fine

How did a company successfully appeal a safety citation and get an administrative law judge (ALJ) to order OSHA to pay the employer’s attorney fees?

An employee of Paramount Advance Wireless fell from a communications tower and died.

OSHA cited Paramount for not providing employees with adequate fall protection.

The judge determined OSHA misunderstood the way fall protection was being used in this situation.

However, the ALJ also found the employee wasn’t protected from falling at all times, so the question became whether the death was the result of unpreventable employee misconduct.

The ALJ determined Paramount:

  • had a rule requiring employees be tied off at all times
  • effectively communicated and enforced its safety rules
  • had an effective training program, and
  • properly supervised its employees.

The ALJ ruled Paramount proved this was a case of unpreventable employee misconduct. The judge threw out the OSHA citation.

Company wanted $50K+ from OSHA

Under the Equal Access to Justice Act (EAJA), companies that prevail against a federal government judgment, such as an OSHA fine, can apply to have attorneys’ fees and other expenses reimbursed by the government.

Paramount filed to have $49,503 in lawyer fees and another $3,763 in other costs and expenses reimbursed by the government.

The EAJA says the government must reimburse the company unless the government was “substantially justified” when it issued the fine. OSHA argued that its citation was substantially justified.

But the ALJ disagreed, citing OSHA’s misunderstanding about the fall protection used by the Paramount employee.

However, the company didn’t receive all the reimbursement it asked for. Paramount’s attorney billed at a rate of $495/hour. The statutory maximum allowed under the EAJA is $125/hour.

OSHA also objected to the inclusion of computer research costs as part of the reimbursement.

The ALJ granted reimbursement for attorneys’ fees at $125 hour, and reduced the number of compensable hours by 13%, leaving the recovery amount at $15,750. However, the ALJ said the computer research was justified, but also reduced that amount slightly to $3,527, for a total reimbursement of $19,277. Paramount got 36% of what it asked for.

You can read the ALJ’s decision here.

Let us know what you think about this case via the Comment Box below.

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Comments

  1. It’s about time! It’s been open season on businesses who had no recourse to sue the government. This provides administrative relief. Thanks for this encouraging article.

  2. PO'd Safety Guy says:

    That maximum allowed attorney fee of $125 probably dates back to the 80’s. Even tho the company got only a third of what it wanted, it’s good to know there’s some recourse against OSHA when they screw up.

  3. David OldSalt says:

    Good to see some recompense, although the kind of lawyers one can hire for a buck-twenty-five an hour are mostly hapless and hungry for cause, but did the money come from the appropriate source? NO!!! It came from us, the taxpayers, instead of the bureaucratic sponge soaking up yet more of our tax dollars “serving” (himself, from the public trough) as OSHA inspector on this case. He should be fined personally (among a host of other sanctions and dis-incentives-to-such-atrocious-misbehavior) and leave the taxpayers alone! Lets take an appropriate percentage back off the award, because the exonerated company paid taxes that, in part, covered its meager compensation for time – and there was no attempt at recovery for their wrongly-impugned reputation.

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