OSHA’S USE AND MISUSE OF THE GENERAL DUTY CLAUSE

2019 WORKPLACE SAFETY SYMPOSIUM

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 7-1

OSHA’S USE AND MISUSE OF THE

GENERAL DUTY CLAUSE

HOW TO AVOID AND COMBAT CITATIONS

John F. Martin (Moderator) – Ogletree Deakins (Washington, D.C.)

Melissa A. Bailey – Ogletree Deakins (Washington, D.C.)

Michael D. McKnight – Ogletree Deakins (Raleigh)



The OSH Act imposes two duties on employers. Employers must comply with the

occupational safety and health standards promulgated pursuant to the OSH Act, sometimes

referred to as the special duty clause.1 Employers also have a general duty to materially reduce or

minimize, to the extent feasible, recognized hazards that are likely to cause death or serious

physical harm to employees. This duty is imposed by the General Duty Clause, Section 5(a)(1)

of the OSH Act, and states: “Each employer shall furnish to each of his employees employment

and a place of employment which are free from recognized hazards that are causing or are likely

to cause death or serious physical harm to his employees.”2

OSHA may use the General Duty Clause to cover serious hazards to which no specific

standard applies. While OSHA’s authority under the General Duty Clause is broad, it is not

without limitation. At times, OSHA has tested the boundaries of these limitations. During the

Obama administration, we witnessed an increase in citations issued under the General Duty

Clause as OSHA sought to look for new and creative ways to expand its use. Many voiced

concern that OSHA was using the General Duty Clause to extend into areas that were not

appropriate such as crowd trampling during Black Friday or training whales at SeaWorld.

During the Trump administration, OSHA has continued its use of the General Duty Clause;

however, the Occupational Safety and Health Review Commission has curbed its use in some

instances. But regardless of the administration in Washington or in individual states

administering OSHA, the General Duty Clause will continue to serve as a powerful enforcement

tool for OSHA.

I. Preemption of the General Duty Clause

Perhaps one of the most misunderstood concepts regarding the General Duty Clause is its

limitation as it relates to standards. Historically, the General Duty Clause has been preempted

when a standard applies.3 If a standard only provides partial protection, OSHA cannot cite an

employer under the General Duty Clause to require additional abatement measures. Allowing

OSHA to require further precautions under the General Duty Clause because a standard does not

provide sufficient protection would circumvent the rulemaking process and is impermissible.4

However, one court held that an employer may violate the General Duty Clause even if it

complies with the applicable standard.5 In General Dynamics, OSHA issued a General Duty

Clause citation to an employer for failing to ensure that a confined space was free of the

hazardous solvent, Freon. Prior to the issuance of this citation, the employer had multiple

incidents where employees became ill after being exposed to Freon levels below the permissible

exposure limit. The employer argued that they did not exceed the permissible exposure limit for

Freon in the applicable standard and, therefore, the General Duty Clause did not apply. In

affirming the citation, the court held that if “an employer knows a particular safety standard is

inadequate to protect his workers against the specific hazard it is intended to address, or that the

conditions in his place of employment are such that the safety standard will not adequately deal

with the hazards to which his employees are exposed, he has a duty under Section 5(a)(1) to take

whatever measures may be required by the Act, over and above those mandated by the safety

standard, to safeguard his workers.”6 The Review Commission and other courts have not adopted

the ruling in General Dynamic.



While General Dynamic greatly expanded OSHA’s power under the General Duty

Clause, the agency has not widely employed the decision to cite employers that are in

compliance with specific standards under the General Duty Clause. Indeed, OSHA’s Field

Operations Manual (FOM) states that the General Duty Clause will normally not be used to

impose a stricter requirement than that imposed by the OSHA standards. To issue a General Duty

Clause in these types of cases, OSHA has stated that all elements of a General Duty Clause

violation must be met “AND there must be actual employer knowledge that the standard was

inadequate to protect employees from death or serious physical harm.”7 OSHA further states that

the General Duty Clause will normally not be used to require additional abatement methods not

set forth under an existing standard. OSHA provides the following example: “If a toxic substance

standard covers engineering control requirements but not requirements for medical surveillance,

Section 5(a)(1) shall not be cited to additionally require medical surveillance.” Similarly, in

2003, OSHA issued a memorandum that states “[i]f there is an established OSHA PEL which

applies to a given workplace air contaminant, Section 5(a)(1) cannot normally be used to impose

a stricter requirement than that required by the standard. An exception to this rule may apply if it

can be documented that, ‘an employer knows a particular safety or health standard is inadequate

to protect his workers against the specific hazard it is intended to address.’”8

Therefore, if you know that compliance with a standard does not provide sufficient

protection, you may need to take additional precautions to avoid liability under the General Duty

Clause.

II. Employees Protected

An employer’s duty under the General Duty Clause only extends to its own employees.

To issue a citation under the General Duty Clause, the exposed employees must be those of the

cited employer.9 Therefore, on a multi-employer worksite, OSHA must evaluate the employment

relationship between the employer to be cited and the exposed employees. Whether or not

exposed workers are employees of an employer depends on several factors, including whether

the employer has control over their assigned work.

III. Elements of a General Duty Clause Violation

To issue a General Duty Clause citation, OSHA must be able to show: (1) the employer

failed to keep the workplace free of a hazard to which employee of the employer were exposed;

(2) the employer or its industry recognized the hazard; (3) the hazard was causing or was likely

to cause death or serious physical harm; and (4) there was a feasible and useful method to correct

the hazard.10

A. Existence of a Hazard

OSHA must clearly identify the condition or practice in a way that apprises the employer

of its obligations and identifies those conditions or practices over which the employer can be

reasonably expected to exercise control.11 Therefore, an industrial activity that is by its nature

hazardous is not necessarily a “hazard” under the General Duty Clause.12 A “hazard” is a

workplace condition or practice to which employees are exposed. It is not the absence of a

particular abatement method.13



At one time, the Review Commission held that a condition is not a “hazard” unless it

poses a “significant risk” of harm.14 However, the Review Commission has since held that

whether a cited condition creates a significant risk of harm is irrelevant. Instead, the question is

whether the condition could create a “hazardous incident” and if the “hazard incident” occurs

under “other than freakish or utterly implausible concurrence of circumstances,” a significant

risk of harm be present.15

B. Hazard Recognition

A “recognized” hazard is a condition or practice in the workplace that is known to be

hazardous by either the employer’s industry in general or by the cited employer in particular.16

For employer recognition, OSHA has traditionally relied on evidence such as the knowledge and

expertise of the employer’s safety personnel or management; the employer’s safety rules and

procedures; manufacturers’ warnings; employee complaints; or past accidents or injuries.

Industry recognition is often established based on safety standards in the relevant industry.

Over the years, OSHA has attempted to ease its burden of establishing the recognition of

a hazard in several ways. Here are some examples:

By asserting that the employer’s “industry” be broadly construed (e.g., imputing

knowledge of construction industry practices to an employer in the roofing

industry).

By asserting that the voluntary safety standards not specific to any one industry

(e.g., NFPA explosion venting code) can be used to show that a “hazard” is

recognized.17

By asserting that safety experts familiar with the industry recognized the hazard.18

By issuing guidance on workplace violence in healthcare, and then asserting

industry recognition based on this guidance.19

By asserting that an OSHA standard shows recognition of the hazard.20

In addition to employer or industry recognition, OSHA may attempt to establish

recognition based on common sense. The FOM states that if industry or employer recognition

of a hazard cannot be established, “hazard recognition can still be established if a hazardous

condition is so obvious that any reasonable person would have recognized it. This form of

recognition should only be used in flagrant or obvious cases.” 21

As a result, the bar for establishing that a hazard is recognized has been lowered

significantly.

C. Causing or Likely to Cause Death or Serious Physical Harm

To establish a general duty clause violation, OSHA must also show that the hazard is

serious. Specifically, OSHA must show that the hazard is “causing” or is “likely to cause”



“death or serious physical harm.” Nonserious hazards are not covered under the General

Duty Clause. OSHA does not have to establish the probability of harm. Instead, OSHA must

establish that if an accident were to occur, death or serious harm would be the likely result. In

evaluating the likelihood of an occupational illness caused by a substance in the workplace,

OSHA must prove that death or serious harm is likely if an employee contracts the illness.22

In the FOM, OSHA states that this element is “virtually” the same as the substantial

probability element for a serious violation of a specific standard. According to OSHA, this

element may be established by showing that:

An actual death or serious injury resulted from the recognized hazard, whether

immediately prior to the inspection or at other times and places; or

If an accident/incident occurred, the likely result would be death or serious

physical harm.23

D. Feasible Means of Abatement

Finally, OSHA must specify the steps the employer should have taken to avoid the

citation, and demonstrate the feasibility and likely usefulness of those steps. A proposed

abatement may meet the usefulness test if it materially reduces or eliminates the hazard.24 To

meet this burden, OSHA may rely on the employer or industry practices. In response, an

employer may use evidence of its own abatement efforts or standard industry abatement methods

in demonstrating that it took all necessary precautions to prevent the occurrence of the violation.

OSHA must also show that the proposed measure of abatement is not cost prohibitive.

Specifically, OSHA must show that the abatement method would not threaten an employer’s

long-term profitability and competitiveness. While economic feasibility is a consideration, the

bar for establishing economic feasibility is relatively low. In fact, OSHA does not mention

economic feasibility in the FOM.

IV. OSHA’s Use (and Misuse) of the General Duty Clause

An assessment of liability under the General Duty Clause should include a review of your

incident history and employee complaints to identify serious hazards that do not appear to be

covered by a standard. Employers should also pay close attention to current OSHA initiatives,

emphasis programs, and proposed rules. For example, OSHA has issued a directive on workplace

violence in the healthcare industry, which it intends to enforce under the General Duty Clause. 25

In its March 2019 decision in Integra Health, the Review Commission upheld a citation

to an employer under the General Duty Clause after a community health worker was stabbed to

death by a client with a history of convictions for assault and battery during a visit to the client’s

home.26 In affirming the citation, the Review Commission found that intentionally violent acts

by third parties are not beyond the scope of the General Duty Clause and that workplace violence

is a “recognized hazard” where employees are working with individuals with known violent

behavior.27



In Integra Health, the Review Commission determined that the employer recognized this

hazard because it adopted work rules addressing employee safety when dealing with dangerous

clients and due to threatening incidents that had previously been reported by employees when

dealing with clients. The Review Commission specifically found a “direct nexus between the

work being performed by Integra’s employees and the alleged risk of workplace violence.”

The Review Commission also found that OSHA need not prove with certainty how much

proposed abatement measures would materially reduce the incidence of a hazard so long as such

a reduction does occur. Included among the potential abatement measures in the citation that the

Review Commission did not disturb:

“Creat[ing] a stand-alone written Workplace Violence Prevention Program for all

the service programs” and a policy “that workplace violence will not be tolerated

and every incident will be investigated,” “[t]raining and education of all staff[,]”

[i]ncident reporting and investigation[,]” and “[a] system for reporting safety

concerns internally.”

“Determin[ing] the behavioral history of new/transferred [clients]” and

identifying clients “with assaultive behavior problems” and communicating that

information “to all potentially exposed employees,” and implementing a “system

for holding [clients] accountable for violent behavior through consequences or

interventions.”

“Put[ting] procedures in place that would communicate any incident of workplace

violence to all staff who could potentially be exposed to the member(s) involved

in the violent incident in a timely manner.”

“Training all employees on effective methods for responding during a workplace

violence incident,” including “recognizing aggressive behavior exhibited by

members or others,” and training on “techniques for timely de-escalating the

behavior.”

“Implement[ing] and maintain[ing] a buddy system as appropriate based on a

complete hazard assessment which includes procedures for all staff to request and

obtain double coverage when necessary, including but not limited to situations

where an employee communicates that he or she feels unsafe being alone with a

particular member.”

“Provid[ing] all staff with a reliable way to summon assistance when needed,”

including when an employee was with a client.

“Establish a liaison with law enforcement representatives.”

Although these proposed abatement measures were specific to the circumstances in Integra

Health, they provide some useful items for employers whose employees may be exposed to

violent customers or clientele to consider to avoid the potential for a citation.



In addition to workplace violence, the following are examples of other hazards OSHA

often seeks to cite under the General Duty Clause:

Failing to wear a seat belt while operating a forklift

Excessive heat/heat stress

Combustible dust

Hazards from ergonomics

Rollover hazards while operating off-the-road motorized equipment (e.g., ATVs,

mowers)

Damaged racking systems

Exposure to air contaminants not covered by a standard

In recent years, OSHA has relied on the General Duty Clause to cite retail stores for

failing to take adequate measures to protect employees from “crowd surge” or “crowd

trampling” during events such as “Black Friday” sales. In April 2014, the D.C. Circuit upheld a

General Duty Clause citation issued to SeaWorld following the death of a whale trainer who was

pulled into the pool by a killer whale and ultimately drowned. One judge dissented, citing the

obvious dangers of many sporting events and entertainment shows. The majority opinion

addressed his argument, by stating, “No one has described SeaWorld’s killer whale performance

as a ‘sport,’ and a legal argument that the ‘sports industry’ should not be regulated by OSHA can

be raised when and if OSHA attempts to do so.”28



ENDNOTES

1 29 U.S.C. 654(a)(2) 2 29 U.S.C. 654(a)(1). 3 See, e.g., Usery v. Marquette Cement Mfg. Co., 586 F.2d 902 (2d Cr. 1977); Daniel Int’l, Inc., 10 BNA OSHC

1556 (No. 78–4279, 1982). 4 Id. 5 UAW v. General Dynamics Land Sys. Div’n, 815 F.2d 1570 (D.C. Cir. 1987), cert. denied, 484 U.S 976 (1987). 6 Id. at 1577. 7 See FOM, CPL-02-00-160, 4-16 to 4-17. The FOM is a directive that describes OSHA’s policies and procedures

for conducting inspections and issuing citations. 8 OSHA Memorandum dated January 24, 2003, Enforcement Policy for Respiratory Hazards Not Covered by OSHA

Permissible Exposure Limits (citing General Dynamics). 9 Anthony Crane Rental, Inc. v. Reich, 70 F.3d 1298, 1305 (D.C. Cir. 1995); Simpson, Gumpertz & Heger, Inc., 15

BNA OSHC 1851, 1866 n.14 (No. 89–1300 1992), aff'd, 3 F.3d 1 (1st Cir. 1993); Frye's Tank Serv., Inc., 4 BNA

OSHC 1515, 1517 (Nos. 4447 & 4648, 1976), aff'd sub nom. Marshall v. Cities Serv. Oil Co., 577 F.2d 126 (10th

Cir. 1979); FOM at 4-11 to 4-12. ("The employees exposed to the Section 5(a)(1) hazard must be the employees of

the cited employer."). 10 See National Realty & Constr. Co., 489 2d 1257 (D.C. Cir. 1973). 11 Arcadian Corp., 20 BNA OSHC 2001, 2007 (No. 93-0628, 2004). 12 Pelron Corp., 12 BNA OSHC 1833, 1835 (No. NO. 82–388, 1986). 13 See e.g., Morrison-Knudsen Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 1121-1122 (No. 88-572, 1993)

(“[t]he absence of protective clothing was not the hazard”). 14 See Kastalon, Inc., 12 BNA OSHC 1928, 1931 (Nos. 79–5543 & 79–3561, 1986). 15 Waldon Health Care Center, 16 BNA OSHC 1052, 1060 (No. 89–2804, 1993). See also Peacock Eng. Inc, 26

BNA OSHC 1588 (No. 11-2780, 2017) (citing Waldon). 16 See, e.g., Industrial Glass, 15 BNA OSHC 1594, 1597 (1992). 17 E.g., Titanium Metals Corp. v. Usery, 579 F.3d 536, 541 (9th Cir. 1978). 18 E.g., Kelly Springfield Tire Co. v. Donovan, 729 F.2d 317 (5th Cir. 1984), reh’g denied, 738 F.2d 437 (1984)

(finding industry recognition based on expert testimony); Acme Energy Svcs. dba Big Dog Drilling, 23 BNA OSHC

2121 (No. 08-0888, 2012), aff’d by, 542 Fed.Appx. 356 (5th Cir. 2013) (finding industry recognition based on oil

industry expert testimony). 19 See, e.g., OSHA’s Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers,

OSHA 3148-06R 2016. 20 Ed Taylor Constr. Co. v. OSHRC, 938 F.2d 1265, 1272 (11th Cir. 1991) (construction standard gave construction

industry notice of confined space hazard). 21 FOM at 4-14. 22 See, e.g., Beverly Enterprises, Inc., 19 BNA OSHC 1161 (Nos. 91-3144, 92-238, 92-819, 92-1257, 93-724, 2000). 23 FOM at 4-14. 24 See FMC Corp., 12 BNA OSHC 2008, 2009 (Nos. 83–488 and 83–489, 1986); Pelron, 12 BNA OSHC at

1936. 25 OSHA Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers, OSHA 3148-

06R 2016. 26 Integra Health Management, Inc., 2019 WL 1142920 (O.S.H.R.C. 2019). 27 Id. 28 SeaWorld of Florida, LLC v. Perez, 748 F.3d 1202, 1212 (D.C. Cir. 2014).

1

John F. Martin, Moderator (Washington, D.C.)

Melissa A. Bailey (Washington, D.C.)

Michael D. McKnight (Raleigh)

OSHA’s Use and Misuse of the General Duty Clause: How to Avoid and Combat Citations

Workplace Safety Symposium December 4-6, 2019JW Marriott New Orleans

General Duty v. Special Duty Clause

• General Duty Clause: “[F]urnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees”

• Special Duty Clause: “[C]omply with occupational safety and health standards and all rules, regulations, and orders issued” under the OSH Act that apply to the employer

2


Elements of a GDC Violation

• Employee Exposure

• To a Hazard

• That is Recognized by the employer or its industry

• The hazard is “Causing or Likely to Cause”

• “Death or Serious Physical Harm”

• There is a Feasible and Useful (or Effective) Method of Correcting (Abating) the hazard


Uphill Battle for OSHA?

3


Employee Exposure

• Liability under the General Duty Clause extends only to your own employees

• On a multi-employer work site, an employer may only be cited as an exposing employer


What is a Hazard?

• Not defined in OSH Act but FOM defines as: “A workplace condition or practice to which employees are exposed, creating the potential for death or serious physical harm to employees.”

• What does this really mean?

• Not defined by failure to implement certain precautions, corrective actions, or other abatement measures

4


Hazard Recognition

• Employer recognizes the hazard; or

– Employer adopts work rules/provides training on the hazard

• Employer’s industry recognizes the hazard; or

– Industry/consensus standards, studies, manufacturer’s literature, expert statements

• “Common Sense Recognition”

• State and local laws and regulations?


What does “causing or likely to cause death or serious physical harm” mean?

• “If an accident/incident occurred, the likely result would be death or serious physical harm”

– The actual probability of an accident occurring is irrelevant

• Causation can be established by showing that “an actual death or serious injury resulted . . . immediately prior to the inspection or at other times and places.”

• What if there is no record of an accident or serious injury?

5


Useful/Feasible Means of Abatement

• OSHA’s proposed method of abatement must be both “useful” and “feasible” – Is it capable of being put into effect?

– Will it eliminate or materially reduce the hazard?

• Is economic feasibility for individual employers a consideration? How much?


Use (and Misuse) of the GDC

• A majority of the OSHRC found that OSHA misused the GDC in a pair of February 2019 decisions involving a Waffle House franchisee and a roofing contractor

• In Mid South Waffles, the OSHRC “chunked” a GDC citation following a grease fire because OSHA failed to identify specific additional abatement steps employer should have taken

6


Scattered and Smothered by the GDC?

• Employer had a work rule requiring grease pan to be cleaned once per shift

• Rule was followed but fire broke out on shift before pan was cleaned

• Work rule exceeded requirements of operator’s manual and industry standard

• Employer still cited under GDC


Heat Stress as a GDC Violation

• In Sturgill Roofing, a 60-year-old temporary employee with preexisting conditions, including congestive heart failure, died after his first day on a roofing job

• The temperature ranged from 72 to 82 degrees with relative humidity from 51 to 84 percent and a heat index of 85 shortly before the employee collapsed

• At hospital, core body temperature was 105.4 degrees

• Employee died three weeks later; coroner determined cause of death to be “complications” from heat stroke

7



• In a February 2019 decision, federal OSHA Review Commission vacated a GDC citation against the employer.

• No “hazard” because employee was not exposed to “excessive heat”– NWS Heat Index of “caution” not “significant risk of harm”

– Employer cited had no knowledge of employee’s pre-existing conditions



• OSHA failed to prove a “feasible” means of abatement because the employer used an “acclimatization plan” that included “assigning new employees to the lightest, easiest jobs, and providing a flexible work schedule that allowed new employees to take as many informal breaks as they desired.”

• OSHA also did not show “what specific, additional steps—beyond those already implemented—Sturgill should have taken to acclimate employees.”

8



• Alternative abatement measures suggested by OSHA:– Requiring loose and reflective clothing

– A formal work/rest regimen

– Monitoring for signs of heat-related illness

– Guidelines for removal of symptomatic employees


GDC = “Gotcha”-Due to-“Catch All”?

• OSHRC: The GDC has “increasingly become more of a ‘gotcha’ and ‘catch all’ for the agency to utilize, which as a practical matter often leaves employers confused as to what is required of them.”

9


• In Integra Health, a community health worker was stabbed to death by a client with a history of convictions for assault and battery during a visit to the client’s home.

• OSHA issued a GDC citation to the employer for exposing employees “to the hazard of being physically assaulted by [clients] with a history of violent assaults.”

Workplace Violence and the GDC


Workplace Violence and the GDC

• In a March 2019 decision affirming the citation, the OSHRC found:– Intentionally violent acts by third parties are not beyond the

scope of the GDC

– Workplace violence is a “recognized hazard” where employees are working with individuals with known violent behavior

– OSHA need not prove with certainty how much proposed abatement measures would materially reduce the incidence of a hazard

10


So a key question is…


GDC Avoidance Tips

• Identify serious hazards not covered by specific standards– Review incidents/near misses that could result in

serious injury/illness

– Keep up with OSHA initiatives, emphasis areas, PELs, and industry trends and practices

– Investigate and communicate with employees about safety issues/complaints

11


GDC Avoidance Tips

• But also need to identify serious hazards that may cause injury/illness even where specific standards do apply

• A DC appellate court has found that “if an employer knows that a specific standard will not protect his workers against a particular hazard, his duty under [the GDC] will not be discharged no matter how faithfully he observes that standard.”


GDC Avoidance Tips

• After identifying the hazard:– Review relevant manufacturer instructions

– Review relevant industry standards but do not ignore because “everyone does it this way”

– Consider other OSHA standards and applicable agency standards

– Do not conclude hazard is impossible to abate based on economic factors alone

12


GDC Avoidance Tips

• Given the broad sweep of the GDC (and its likely future expansion), if management knows of a potential workplace hazard, consider whether there are feasible additional steps to address it even if:

– There is another law or regulation on point

– There are manufacturer/industry standards in place

– The hazard has not been addressed/cited by OSHA in the past


Combatting GDC Citations

• Consider pre-emption arguments– Other standards

– Other regulatory schemes

• Raise lack of “fair notice”/due process– Explain how the way the GDC has been

construed, no employer could be expected to know that its conduct violated it

13



• In cases involving multi-employer worksites, push back on citations where evidence of your employees being exposed to a hazard is weak

• Attack citations based on absence of particular abatement method masquerading as a “hazard”

• Rebut proposed method of abatement by showing existing safety procedures are as effective as abatement proposed by OSHA



• Leverage the perception among OSHA’s lawyers that proving a GDC violation is a lot of work

• Exploit lack of solid evidence of employer or industry recognition of the hazard

• Ensure employer knowledge is demonstrated– No “eggshell” employees

– No “Rube Goldberg”-style theories of exposure

14

John F. Martin, Moderator (Washington, D.C.)

Melissa A. Bailey (Washington, D.C.)

Michael D. McKnight (Raleigh)

OSHA’s Use and Misuse of the General Duty Clause: How to Avoid and Combat Citations

John F. MartinShareholder || Washington D.C.

John Martin focuses his practice on occupational safe� and health

compliance and litigation. He serves as national OSHA counsel for three

publicly-traded companies, and has over �� years of experience in

defending employers in federal court and before the Occupational Safe�

and Health Review Commission (OSHRC). John has defended clients in

�� states and counsels clients on developing safe� programs to

eliminate and reduce workplace injuries.

John also consults employers and industry groups on federal and state

safe� regulations and ongoing rulemaking and legislation. He has

represented clients in federal and state courts all across the country, up

to the Supreme Court of the United States.

John represents a wide varie� of employers from small family-owned

businesses to Fortune �� companies, and in a wide range of industries,

including construction, oil and gas exploration, drilling, well servicing,

restaurants, door and window manufacturing, auto manufacturing,

health care, transportation, and retail.

https://ogletree.com/locations/washington-d-c

tel:+12022630267

mailto:[email protected]

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Melissa A. BaileyShareholder || Washington D.C.

Melissa Bailey focuses her practice on occupational safe� and health

issues, and also serves on the Firm’s Board of Directors. She litigates

OSHA cases before federal and state agencies and courts, and also

represents employers during government inspections and

investigations. Her practice also includes providing compliance advice

and conducting privileged audits on complex workplace safe� issues.

Melissa represents employers in a wide range of industries, including

electric utilities, chemical manufacturing/refining, retail, food

processing, construction, and drug manufacturing. Melissa also

regularly represents clients before OSHA in connection with

rulemaking and policy formation. She has testified before Congress

regarding OSHA issues, and has advocated for management interests

with regard to OSHA enforcement and compliance policies.

Melissa has practiced occupational safe� and health law for over ��

years and, as a result, she understands the legal issues as well as the

practical issues confronting employers. She routinely assesses both the

current and future liabili� that may result from significant OSHA

citations, and identifies the most e�ective approach – whether that is a

strategic se�lement or litigation – in each case.

Melissa also represents clients in whistleblower ma�ers under a broad

range of statutes, including the Occupational Safe� and Health Act, the

Surface Transportation Assistance Act, the Toxic Substances Control

Act and the Clean Air Act. Her experience ranges from conducting

investigations and developing position statements to litigating

whistleblower cases before Administrative Law Judges and in court.

Melissa is an active speaker on OSHA and whistleblower issues. She

speaks to trade association members and clients regarding a varie� of

OSHA issues, including strategies to use during an OSHA inspection to

minimize liabili�, conducting privileged audits and accident

investigations, and the impact of OSHA’s regulatory and enforcement

agenda on particular industries. Melissa is also the Employer Co-

Chairperson of the American Bar Association Occupational Safe� and

Health Commi�ee.

https://ogletree.com/locations/washington-d-c

tel:+12022630265


https://ogletree.com/wp/wp-admin/admin-post.php?action=get_vcard&pid=3645&name=melissa-a-bailey

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Michael D. McKnightShareholder || Raleigh

Michael McKnight provides counsel to and represents employers in all

�pes of labor and employment ma�ers. In addition to representing

employers in courts and arbitration proceedings, Michael has extensive

experience as an advocate for employers in administrative agency

proceedings, investigations, and audits before state and federal Equal

Employment Opportuni�, Occupational Safe� and Health, and Wage

and Hour enforcement agencies. He routinely advises employers in

investigating and responding to workplace accidents, injuries, and

fatalities.

Michael regularly works with employers in the agriculture, automotive,

construction, healthcare, hospitali�, manufacturing, retail, technology,

transportation, and utilities industries. He also represents and advises

non-profit organizations, schools, and governmental agencies and

o�cials on ma�ers involving civil rights and campaign finance laws and

state and federal constitutional requirements.

Michael enjoys working with clients to find innovative, practical, and

cost-e�ective solutions to litigation and workplace issues and

partnering with clients to take proactive steps to avoid costly and time-

consuming legal problems.

https://ogletree.com/locations/raleigh

tel:+19197893159


https://ogletree.com/wp/wp-admin/admin-post.php?action=get_vcard&pid=4219&name=michael-d-mcknight

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OSHA’S USE AND MISUSE OF THE GENERAL DUTY CLAUSE