OSHA Defense Strategies: Challenging Citations After Loper Bright and Jarkesy

Course Description

This course examines the evolving OSHA enforcement landscape and the challenges attorneys face when defending employers against inspections, citations, and penalties. It will explore the state-plan patchwork and how varying state requirements can impact OSHA compliance and enforcement strategies. Attendees will review practical approaches to OSHA inspection and citation defense, including potential challenges to agency actions. The course will also examine the impact of Loper Bright and Jarkesy on OSHA enforcement, agency authority, and administrative proceedings.

Principles

• OSHA defense begins with understanding the changing enforcement landscape.
  • Attorneys should stay current on evolving OSHA enforcement priorities, inspection practices, citation strategies, and penalty exposure. Effective defense requires evaluating both the underlying safety issue and the agency’s authority and enforcement process.
• State-plan differences can materially change compliance and defense strategies.
  • Employers operating across jurisdictions must account for the state-plan patchwork, because state OSHA programs may impose requirements or enforcement approaches that differ from federal OSHA. Counsel should identify the governing regime early when assessing compliance obligations or defending a citation.
• Inspection and citation defense should begin before a citation is issued.
  • Employers benefit from having protocols for responding to inspections, managing communications with OSHA, preserving evidence, documenting workplace conditions, and addressing alleged violations. Once a citation is issued, counsel should carefully evaluate the factual basis, classification, procedural requirements, abatement obligations, and penalty before determining whether and how to challenge it.
• Loper Bright creates new opportunities to challenge agency interpretations.
  • Following Loper Bright Enterprises v. Raimondo, courts no longer defer to agency interpretations merely because a statute is ambiguous. In OSHA matters, counsel should therefore scrutinize the statutory basis for OSHA’s interpretation and ask whether the agency’s position is actually supported by the best reading of the governing statute.
• Jarkesy highlights constitutional and administrative-law challenges to agency enforcement.
  • SEC v. Jarkesy reinforces the importance of examining whether an agency’s administrative enforcement process implicates constitutional protections, including the Seventh Amendment, separation of powers, and limits on agency adjudicatory authority. For OSHA defense, these developments encourage counsel to consider not only traditional factual and procedural defenses, but also broader challenges to the agency’s authority and enforcement mechanisms.

Syllabus

1. OSHA’s Changing Enforcement Landscape
2. The State Plan Patchwork
3. OSHA Inspection and Citation Defense
4. Impact of Loper Bright and Jarkesy