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.
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