Carefully Eye the 1BY

Before issuing a serious workplace citation, Cal/OSHA must meet and informally discuss its inspector’s findings and proposed citations no later than 15 days before they are issued, and allow employers to present evidence why the citation should not be issued. To help facilitate the dialogue, the agency is using the 1BY form: Cal/OSHA fills out the front with the charging allegations, and the employer writes the reasons he or she believes the citation should not be issued on the back.

Yet Fred Walter, managing partner at Walter & Prince, views the form as “something of a trap for employers.” He explained his concern is two-fold.

First, the form could be used as evidence if the citation is appealed. “The employer, even with some diligence, may not know what occurred, but because they want to play nice with OSHA, say something on the form that they later want to recant,” Walter said. “An accident might have happened in a different way, or different factors that are revealed might create a different view of what occurred based on new information after the form has been filled out. But the problem is that the employer’s statements in the 1BY constitute admissions and may be used against the employer if a citation is issued and appealed.”

Second, once an investigation has concluded, the form becomes a public document and, in the worst case, could conceivably be available to licensing agencies to determine, for instance, if a construction firm should be licensed or not, Walter said.

“Because of all of the potential ramifications and venues the form could be used in, I hesitate to have our clients, the employers, fill those forms out without careful thought beforehand,” he said. “The other curious thing is there are no penalties for not filling out the 1BY form, and a employer’s refusal to fill out the form cannot be used against the employer in an appeal. … If an employer wants to sit down and participate in a dialogue with Cal/OSHA before a citation is issued and say why the citation is wrong, but not complete the form, they can still do so.”