/>iThis is a continuation of the eleventh installment in a series of articles intended to provide the reader with a very high-level overview of the Occupational Safety and Health (OSH) Act of 1970 and the Occupational Safety and Health Administration (OSHA) and how both influence workplaces in the United States.
By the time this series is complete, the reader should be conversant in the subjects covered and have developed a deeper understanding of how the OSH Act and OSHA work. The series is not—not can it be, of course—a comprehensive study of the OSH Act or OSHA capable of equipping the reader to address every issue that might arise.
Quick Hits The first article in this series provided a general overview of the OSH Act and OSHA; the second article examined OSHA’s rulemaking process; the third article reviewed an employer’s duty to comply with standards; the fourth article discussed the general duty clause; the fifth article addressed OSHA’s recordkeeping requirements; the sixth article covered employees’ and employers’ respective rights; the seventh article addressed whistleblower issues; the eighth article covered the intersection of employment law and safety issues; the ninth article discussed OSHA’s Hazard Communication Standard (HCS); the tenth article in the series examined voluntary safety and health self-audits; and the previous article reviewed OSHA’s citation process. In this article, we continue our discussion of the process for contesting OSHA citations. Contesting OSHA Citations If the employer decides to contest the citation, it must serve a notice of contest on the OSHA office that issued the citation within fifteen working days of receipt of the citation. Failure to either (a) settle a case through an informal settlement conference or (b) file a notice of contest within fifteen working days will result in the citation becoming a final order of the Occupational Safety and Health Review Commission (OSHRC). Why Do Employers Contest Citations? The Process of an OSHA Contest The notice of contest must be in writing. Federal OSHA has no form for a notice of contest. While there are no formalities or magic words to intone, an employer must adequately identify all aspects of the citation that it wishes to contest—the alleged violation, the characterization of the violation, the penalty, the abatement, the abatement date, or all the above. The notice must be adequate to put OSHA on notice that the employer is contesting either all or at least some part of the citation. The notice of contest must be served on OSHA within fifteen working days of receipt of the citation. With very few exceptions, a citation not timely contested becomes a final order of the Occupational Safety and Health Review Commission (OSHRC) (known also as “the Review Commission”), and the order may not be reviewed by any court or agency. OSHA starts counting the fifteen-day clock on the day when the citation is received by any agent of the employer. The agency typically sends the citation via certified mail to the closest local office where the alleged violation occurred, but sometimes OSHA will serve citations in person. In large companies, this can create confusion as to when a citation was received, as the citation moves from local offices to the legal and health, safety, and environment (HSE) departments. Rather than waste time guessing when the citation was received by the company, the safest practice is to assume OSHA hand-served the citation on the company on the date of issuance listed on the citation and count fifteen working days from then. Engaging in settlement discussions with OSHA does not stop the clock on the contest period. In many employers’ minds, the contest period creates a way-too-short deadline to negotiate a settlement with OSHA. But keep in mind settlement talks can always continue after an employer submits its Notice of Contest. Once OSHA receives an employer’s notice of contest, the agency must immediately forward the citation and contest to the Occupational Safety and Health Review Commission in Washington, D.C. The Review Commission is frequently mistaken as being part of OSHA. It is an independent federal agency tasked by the U.S. Congress to resolve contested OSHA citations. Upon receipt of the contest materials, an OSHRC clerk will docket the matter and pass the case on to the Chief Administrative Law Judge (ALJ). The chief ALJ will then assign the case to one of the Review Commission’s ALJs in the District of Columbia, Atlanta, or Denver. The Review Commission will send the employer a two-part docketing card with the case number. The employer must detach and post the half of the card that contains a notice to employees informing them that the citation is under contest and of their rights to participate in the proceedings. The employer must then date and sign the other half of the card and mail it back to the Review Commission. This second half of the card notifies the Review Commission of the posting. If the employer fails to return the card, the Review Commission will send a reminder. If OSHRC receives no card back from the employer, it reserves the right to dismiss the employer’s contest. Once docketed with the Review Commission, the case will follow certain procedures that appear very similar to a normal litigation track in state or federal courts. Ultimately, the ALJ will schedule a hearing to hear witnesses and receive evidence from all parties. OSHA will proceed first, and typically call the compliance officer who conducted the inspection as its first witness. The employer/respondent will have the opportunity to cross-examine any of OSHA’s witnesses, just as OSHA will have an opportunity to cross-examine the respondent’s witnesses. The hearing can continue for days or weeks, until both sides have presented their full cases to the ALJ. Thereafter, the ALJ will issue a decision that can be appealed by either party to the Review Commission, and thereafter, federal circuit courts. State Plan States Currently, there are twenty-two state plan states. State plan states maintain their own state OSH Act and have some subtle differences in the manner they handle citations and deadlines for appeal. Typically, the specific jurisdictional requirements are included in the citation packet the state plan sends to the employer. An employer seeking to appeal a state citation may want to carefully review the expectations outlined in the specific jurisdiction.
