Settling with OSHA: The Importance of an Exculpatory Clause
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I’ve attended a number of informal OSHA hearings over the past several years. If you’ve never sat in one of these, the feeling is eerily reminiscent of being called to the principal’s office. You’ve (well, really your manufacturing facility) been caught breaking the rules and your fate is in the hands of a government employee – private school kids, you get the picture. A fair resolution is often reached after you share what you’ve done since the citation to prevent a repeat offense and advise that the infraction won’t happen again. This is often met with a reduction in the penalty. At this point, you may let out a sigh of relief. However, there’s one very important thing you still need to do – and you’ll have to ask for it.
Once terms have been reached, the OSHA representative will draft a settlement agreement. Prior to that being done, request that the agreement include an exculpatory statement that provides that the employer hasn’t admitted to a violation of any OSHA standard. Ensure this clarifies the settlement between OSHA and the employer has been entered into only as a settlement and compromise of a disputed claim. If possible, include language that specifies that the settlement agreement, its contents and the citations upon which it’s based aren’t admissible in any legal proceeding. The exculpatory language is crucial because, in most states, a violation of an OSHA standard is considered negligence per se by the employer; that is, the employer may be found guilty of negligence simply by having violated the OSHA standards. In a courtroom, a settlement agreement without an exculpatory clause could be used as evidence to reinforce your negligence. A settlement agreement with an exculpatory clause, if not already inadmissible, is more of a “we agree to disagree” conclusion and, therefore, is more likely to be dismissible.
Note that even with exculpatory wording, OSHA will undoubtedly reserve their right to use the settlement agreement and the citations against the employer in any subsequent OSHA proceedings. As a result, the clause doesn’t remove your exposure to a repeat offense in the future. If you still have questions, contact an ‘A’ Team member and register for our upcoming OSHA training seminar.
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