No Harm, No Foul: The OSHRC's Authority to Label an OSH Act Violation de minimis and to Require No Abatement
Elswick, Samuel D.
Bales, Richard A.
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The federal circuits are split on the issue of whether the Occupational Safety and Health Review Commission (OSHRC) has the authority to label a safety and health violation de minimis and require no abatement even if the Secretary of Labor has issued a citation. This article initially examines the legislative background of the Occupational Safety and Health Act, its procedural aspects, the separate roles allocated the Secretary of Labor and the OSHRC under the Act, the three levels of violations, and the OSCHRC's authority to determine the level of severity of a violation. Next, the current split in the Federal Circuit Courts is discussed. Finally, the issue of whether the OSHRC possesses the statutory authority to designate a safety and health violation de minimis is analyzed. The article concludes that the OSHRC does possess the authority to label a safety and health violation de minimis and to require no penalty or abatement, even though an OSH Act violation has technically occurred.