Managing OSHA

Critical but practical advice for when OSHA comes knocking.

Managing OSHA

Services

In working to keep their employees safe, employers face an increasingly complex web of occupational safety and health regulations. All of Arent Fox’s OSHA attorneys focus their practices entirely on resolving occupational health and safety matters at both the federal and state levels. Accordingly, we are uniquely qualified to provide effective and practical solutions for employers’ safety and health challenges, no matter how complex.

Here are the primary services our OSHA Team offers:

Catastrophe Management

Because a major incident almost always involves investigations by numerous government agencies, Arent Fox attorneys have developed experience managing multi-agency inspections and handling the litigation that follows catastrophic incidents. We have managed more than 40 such incidents, and we have dealt with numerous government agencies simultaneously -- OSHA, EPA, the Chemical Safety Board (CSB), and local law enforcement. We have worked extensively with our clients to develop both corporate and plant-wide strategies to help control liabilities during these times of crisis. We give advice during these times on wide-ranging issues like preserving evidence under a litigation hold, negotiating evidence and site-control agreements, and communicating with the work force while the crisis is managed. We have experience identifying significant non-legal issues of which you should be aware, and we have a wide network of experts in a variety of disciplines that we call upon when the need arises. When your workplace crisis develops, Arent Fox attorneys have the skills and experience to help you achieve an effective response.

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Compliance Counseling and Auditing

Employers often have questions about their safety programs or about how to comply with OSHA standards. Arent Fox counsels clients in a number of industries on how to handle these concerns. We have conducted training sessions for clients on a wide variety of issues including how to manage an OSHA inspection, best practices for drafting incident reports, record-keeping, and preparing for an NEP inspection. We have assisted a number of clients with their compliance issues by conducting compliance audits to identify any existing OSHA violations. We also conduct attorney-client privileged internal audits in response to complaints, and we work with company personnel and technical experts in conducting privileged investigations following major catastrophes or employee fatalities. Arent Fox is the industry leader on issues related to attorney-client privileged investigations and audits in OSHA-related matters, recently securing a decision from the Occupational Safety and Health Review Commission (OSHRC) in a case of first impression that affirmed the application of the privilege to the report of an independent consultant hired to assist with compliance advice.

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OSHA Inspections

Arent Fox attorneys have the experience you need to manage OSHA during an inspection. The time during OSHA’s inspection is critical for employers who want to minimize the number and severity of the citations they receive. During the inspection, we work with employers to protect their rights and minimize their potential liability without alienating OSHA. Moreover, we seek to ensure that they are clearly communicating with OSHA and avoiding misunderstandings that could lead to additional citations. Our clients recognize that the best way to fight an erroneous citation is to prevent it from being issued.

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Contesting Citations and Litigation

If you do receive OSHA citations, we help clients evaluate whether it is better to settle or litigate. For those cases where litigation is the best option, Arent Fox has the experience and skills to defend your interests with a cost effective strategy. Our attorneys have extensive experience before the Occupational Safety and Health Review Commission, comparable state agencies, and federal courts, and we have handled numerous cases involving allegations of willful or repeated violations with proposed penalties exceeding $1 million. For cases involving the death of an employee, we work with criminal defense counsel to represent clients in OSHA and US Department of Justice investigations and indictments. We also focus our practice on those industries where OSHA focuses. Arent Fox attorneys represented a petroleum refinery in the first trial ever of citations issued under OSHA’s National Emphasis Program (NEP) for Refineries, in addition to representing numerous other petroleum refineries and chemical manufacturers in their litigation over NEP citations.

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PSM Compliance and Litigation

Arent Fox’s OSHA Team has extensive experience with Process Safety Management (PSM) which includes the following:

  • Defended over 110 PSM enforcement matters
  • Represented scores of refineries and chemical plants and concerning PSM issues
  • Served as Lead OSHA counsel in 18 PSM inspections under OSHA's National Emphasis Program (“NEP”) for refineries
  • Served as Lead OSHA counsel in 8 PSM inspections under OSHA’s NEP for the Chemical Plants
  • Lead counsel in a 3 week PSM trial – the first OSHA NEP enforcement matter to go to trial
  • Conducted 35 PSM compliance audits under the attorney-client privilege
  • Was lead counsel in a case of first impression extending the attorney client privilege to third party experts
  • Conducted 12 PSM compliance reviews as a part of the due diligence for acquisitions
  • Conducted 15 PSM facility siting studies under the attorney-client privilege
  • Served as lead counsel in obtaining four PSM interpretation letters from OSHA
  • Managed PSM inspections for 25 fire and explosion incidents

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Rulemaking

Arent Fox has represented employers and major industry associations in rulemaking proceedings on OSHA standards, including lockout/tagout, electrical safety, chemical process safety management, ergonomics, grain handling, and respiratory protection and air contaminants, including hexavalent chromium, lead, cadmium, and arsenic. In the last two years, Arent Fox attorneys represented clients during the combustible dust rulemaking and during OSHA’s attempt to reinterpret its noise rule without formal rulemaking.

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ABOUT ARENT FOX LLP

Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.