As the President of Grayhawk Safety & Health Consulting Company and a former OSHA Safety & Health Compliance Officer for twenty-five years, I can review any recently issued citations for their validity and work with clients on settlement arrangements. 

Many times OSHA issues citations that can be and should be grouped together and merged into one penalty, but internal policies prevent the citations from being grouped for the sole purpose of settlement negotiations.  Any issued citations are subject to being reclassified or withdrawn for a lack of evidence. 

Many times OSHA will issue citations as willful serious, willful other, failure to abate, or serious that may or may not be warranted.   My previous twenty-five years as an OSHA compliance inspector gives me the upper hand in understanding the parameters of what warrants the issuance of a citation and what needs to be either reduced in classification, grouped, or deleted through the informal conference and contest hearing procedural process.
 
If a settlement cannot be reached, I can work with your designated attorney and testify as an expert witness in an OSHA hearing on behalf of our client. 

Expert Witness Testimony

Randy Gray has his B.S. and M.S. degrees from Murray State University in Occupational Safety and Health. He has also worked for more than 25 years for the Kentucky Occupational Safety and Health Division of Compliance conducting random audits of manufacturing workplace and construction job site. Randy Gray has also testified in numerous OSHA hearings on the issuance of citation s and the identified hazards, employee exposure or potential for exposure, knowledge of the hazardous conditions, and applicable regulations. There are many safety and health consultants, but few of them have the education and real life work experience needed to help employers with an OSHA compliance inspection. Randy Gray has the detailed knowledge of how OSHA citations are administratively processed and issued.

Non-Fatal and Fatal Accident Investigations

In his 25 plus years working as an OSHA Safety and Health Compliance Officer Randy Gray conducted more than 75 separate fatal workplace and job site fatality investigations and more than 500 non-fatal accident investigations. Randy Gray excelled in the field of conducting both fatal and non-fatal accident investigations. He has demonstrated the ability to find the root causes of why an accident occurred and can recommend the appropriate abatement to prevent future occurrences.

The Employee Misconduct Defense

During his 25 plus years working as an OSHA Safety and Health Compliance Officer Randy Gray applied the four (4) elements of the Employee Misconduct Defense to determine if the issuance of a citation was warranted. The employee misconduct / action defense states that when an employee is negligent or creates a violation by not following established training, instruction, and/or procedure the employer can assert an affirmative defense.

The employee misconduct defense works when the employer ensures that everyone is properly trained in the responsibilities of their task designed to ensure their safety and health needs are being meet through compliance with the OSHA regulations and in-house health and safety rules are being followed.  Employer’s can ensure a successful employee misconduct defense when they provide a safe and healthful workplace by ensuring the following: 

• Does the employer have an effective S&H program designed to prevent the violation of this instruction or procedure? “AND”
• Does the employer have an effective training program and instructions for the procedure? “AND”
• Does the employer have a means of discovering violations for the procedure / instruction? “AND”
• Does the employer have the means for enforcement of the regulations and implemented company safety rules and procedures?

Accountability across the board from the Plant Manager, HR Manager, Operations Management team, Environmental, Health and Safety Manager, Front Line Supervisors, and your hourly workforce is the key.  Today, the vast majority of employers has effective safety & health programs to prevent violations, provides employee training instructions, and has all or most written programs and procedures in place. 

The vast majority of employers are not eligible to utilize the employee misconduct defense because, they have failed in the means of discovering the violations (hazardous conditions) for the procedure/instruction, and the employer failed to utilize or enforce the regulation by not enforcing either OSHA regulations or their own in-house safety & health rules and procedures through an established and documented disciplinary procedure or not having a documented and written disciplinary procedure at all. 

The key to utilizing the employee misconduct defense is having a successful safety & health program and elimination of future OSHA citations, make everyone accountable and ensure that “all” of your employees have been provided with employee misconduct training. 
Employer’s should provide all hourly employees with the OSHA outreach 10 hour training, and all management personnel including online supervisory personnel should receive the OSHA outreach 30 hour training.  By providing this training you are starting the basis for your documentation to assert the employee misconduct defense.    

Note: The employee misconduct defense is not a one size fits all and does not apply the same across the board to all workplace and construction site situation. Randy Gray can help you determine if you have the documentation to assert the employee misconduct defense and help you to ensure that in the future you can assert this defense through workplace audits, training and effective written documentation.

Third Party Liability

With 25 plus years of conducting fatal and non-fatal workplace and job site accidents Randy Gray has observed many pieces of equipment, machinery and devices that malfunctioned due to being defective. Randy Gray can work with attorneys to determine if third party liability played a role in the cause of the accident or if the equipment, machine or device malfunctioned due to an operator error or a work practice that caused the injuries and/or death.