August 8, 2020

Volume X, Number 221

August 07, 2020

Subscribe to Latest Legal News and Analysis

August 06, 2020

Subscribe to Latest Legal News and Analysis

August 05, 2020

Subscribe to Latest Legal News and Analysis

OSHA Enforcement Delays Can Get Citations Dismissed in Virginia

In Virginia, Occupational Safety and Health Administration (OSHA) citations can get dismissed if the agency delays too long.

Virginia Occupational Safety and Health (VOSH) enforces occupational safety and health laws on behalf of OSHA in Virginia. VOSH covers most private employers in Virginia, as well as all state and local employees.

Unlike in other states, Virginia lacks an administrative procedure to enforce citations for workplace safety and health matters. Instead, citations are enforced in the courts, which creates a significant backlog and time delays in cases. (Please note, the author has served as Virginia’s Labor Commissioner tasked with enforcement of VOSH citations, and has personally observed – and withdrawn – citation enforcement actions delayed up to seven or eight years.)

Virginia Code § 40.1-49.4(B) requires the Commissioner to “immediately notify the attorney for the Commonwealth for the jurisdiction wherein the violations alleged to have occurred and shall file with the circuit court a bill of complaint.” While the requirement does not require the Commissioner to file suit immediately, nor does it impose a limitations period, it also does not give the Commissioner unlimited time to enforce a citation in court. Barr v. S.W. Rodgers Co., 33 Va. App. 273, 278 (2000).

In several cases, courts have struck cases in which VOSH delays have prejudiced employers’ ability to defend themselves. Under one theory, an employer may suffer inherent prejudice because, during a long-time delay, “uncertainty is itself a large problem for most businesses, causing them inherent problems in planning, capital investment, and reporting of profit and loss.” Id. A long-pending citation can also be inherently prejudicial because OSHA posts citation information on its own website, and citation information “available to potential customers on the internet…is detrimental to [an employer’s] business.” Davenport v. Thor, Inc., 62 Va. Cir. 228, 229 (Martinsville 2003). So while a fifteen-month delay may not constitute inherent prejudice, S.W. Rodgers, supra., a 39-month delay may jeopardize a citation altogether. Thor, supra.

Even if a court does not find inherent prejudice, a court may dismiss a citation due to actual prejudice if the passage of time has led to the loss of key evidence or witnesses. Davenport v. C.R. Meyer & Sons, Inc., 91 Va. Cir. 421, 422-23 (Isle of Wight Cnty. 2015). “Recollections fade over time,” Thor, supra, which can force an employer to rely unfairly on conflicting memories. This can be make mounting a defense particularly difficult for an employer because the agency will not share investigative files until the discovery phase of litigation and, even then, may shield witnesses under the common law “informer’s privilege.” The agency cannot blame staff shortages or administrative burdens to excuse long delays. C.R. Meyer & Sons, supra.

While there are no limitations periods for VOSH citations, the agency does not have unlimited time. Unreasonable delays in enforcement activity can lead to dismissal of a VOSH citation.

Jackson Lewis P.C. © 2020National Law Review, Volume X, Number 197


About this Author

Courtney Malveaux, OSHA Lawyer, Employment, Richmond, Virginia, Jackson Lewis Law Firm

Courtney Malveaux is a Principal in the Richmond, Virginia, office of Jackson Lewis P.C.

Mr. Malveaux represents employers cited by the Occupational Safety and Health Administration and other regulatory agencies. He also advises and represents employers in employment law matters, including retaliation claims, employment discrimination, unemployment benefits and wage claims. Mr. Malveaux also represents business associations in state and federal legislative and regulatory matters.

Mr. Malveaux represents industry on the Virginia Safety and...