Anyone so unfortunate to have received an OSHA citation likely knows that you need to make a decision relatively quickly on how to respond. Simply reaching for the checkbook (never advisable!) and deciding to just pay the citation is one approach. Another approach -- a more recommended approach -- would be to take advantage of the procedures in place to help you resolve citations.
One option is to immediately request what is referred to as an “informal conference” with the OSHA area director. The informal conference must take place no later than 15 business days of the employer’s receipt of the citation. Informal conferences are very popular because they present an opportunity at an early stage of the process to negotiate a penalty reduction, extension of abatement dates, deletion of violations, and/or reclassification of violations.
In the world of OSHA citations, any of these outcomes usually represents a “win” for the employer because they take minimal time, require minimal expense, and provide the opportunity to move on (hopefully with lessons learned for a safer workplace).
But that option may not fit all circumstances. What if you feel the right path for your company is to resist any notion that you can’t fight city hall and you decide to contest the citation? The reasons could be more complex than the simple dollars and sense of a potential penalty. How does one do that, what should you expect, and -- the big question -- can you actually win? Further, after you contest a citation, can you still settle the citation with OSHA, or is there no turning back?
These are just some of the questions that lurk in what can seem like a daunting and murky legal labyrinth. There are, however, well-defined procedures to navigate this process, and understanding them is crucial in order to make an informed decision and plot your desired course.
The First Step — Better Never than Late?
The act of formally contesting an OSHA citation is rather simple, but you must adhere to a rigid time deadline, or not only will you lose the right to contest the citation but, even worse, the citation will become final. Specifically, to contest, you must submit a Notice of Intent to Contest in writing to the OSHA area office within 15 working days (this excludes weekends and federal holidays) of your receipt of the citation. Importantly, this is the same deadline for appearing at an informal conference. The Notice of Contest must clearly state what is being contested (e.g., the citation, the penalty, and/or the abatement date) and must be made in good faith (meaning you must sincerely believe you’re in the right).
The Venue and the Players — Can You Get a Fair Shake?
With the Occupational Safety and Health Act of 1970 (OSH Act), Congress created not only OSHA, but also the Occupational Safety and Health Review Commission. Whereas OSHA is a part of the Department of Labor, the Commission is an independent federal agency, separate and apart from the Department of Labor. The Commission serves as the court system to adjudicate disputes between employers and OSHA arising from contested workplace safety inspections. Among its roles, the Commission employs administrative law judges (ALJs) who hold administrative hearings and decide contested citations. If you contest a citation, you will end up before an ALJ. The Commission, itself, is composed of three members who are appointed by the president.
Fortunately, although OSHA and the Commission were created by the same legislation and share similar names, the ALJs do not merely serve as a rubber stamp for OSHA. In fact, a review of ALJ decisions from 2014 and 2015 indicates that in 21% of the cases, all of the contested citations were vacated (in favor of the employer) and no associated penalties were imposed. In an additional 23% of the cases, at least one (but not all) of the contested citations was vacated. In sum, employers experienced at least some degree of success in approximately 44% of the contested cases. Of course, each case is dependent on its facts, but the odds as a whole do not appear to be stacked against you.
Pleadings, Discovery, and the Hearing -- Learning Each Other's Case
Within 20 calendar days of receiving the Notice of Contest, the Secretary of Labor must file a written complaint with the Commission and also provide a copy to the employer. The employer, in turn, is required to file a written answer within 20 days denying the allegations the employer wishes to contest and also describing any “affirmative defenses” that it intends to raise, such as “infeasibility,” “unpreventable employee misconduct,” and/or “greater hazard posed by compliance.” (A number of procedural and/or substantive defenses may exist in any particular case and should be analyzed as early as possible in the process. Consultation with counsel in this regard may be advisable.)
After the answer is filed, the ALJ will impose a schedule for the case, and also may hold a conference with the parties to clarify the issues, explore the potential of settlement, or discuss other ways to expedite the future hearing. Discovery (the method by which parties obtain information and documents from each other) may include written questions (called “interrogatories”), oral statements taken under oath (called “depositions”), asking the opposing party to admit or deny the truth of certain facts (called “notices to admit”), and/or requests for the opposing party to produce documents. Notably, depositions are only available if the parties consent to take them or, if one party refuses to consent, the court directs this type of discovery to proceed. In addition, parties may, upon application to the ALJ, serve subpoenas requiring the attendance and testimony of witnesses and the production of evidence, including books, records, correspondence, or documents.
After discovery is completed, a hearing will be conducted before the ALJ. Witnesses will testify under oath and be subject to direct and cross-examination. The Federal Rules of Evidence will apply. After the hearing is completed, each party is given an opportunity to submit a post-hearing brief to the ALJ essentially arguing why the judge should decide in its favor. Afterward, the judge will issue a decision.
Notably, in additional to conventional proceedings (the process described above), contested cases may, in certain circumstances, proceed pursuant to simplified proceedings. Simplified proceedings may be appropriate for cases with less complex issues and short circuit much of the steps involved in conventional proceedings. For example, in simplified proceedings, complaints and answers are not required, the Secretary of Labor is required to provide the employer with documents early in the process, discovery is not permitted (except as ordered by the ALJ), and hearings are less formal. Any party may request that a case be assigned for simplified proceedings and the Chief ALJ may make this decision as well.
One Additional Step?
After the ALJ issues a decision, the losing party can object to the decision by filing a Petition for Discretionary Review. Review by the Commission, however, is not a right and the Commission may or may not elect to review the decision. Notably, however, even if a party does not file a Petition for Discretionary Review, the Commission may voluntarily, on its own initiative, elect to review the decision, in which case it will ultimately issue its own decision that will become the final order of the Commission. Any party who is adversely affected by a final order of the Commission can appeal to a United States Court of Appeals.
Conclusion — Why Litigate?
The decision to contest an OSHA citation should never be made lightly. Indeed, many factors might be relevant to the decision-making process. These may include not just the potential penalty amount but perhaps, more importantly, the citation’s potential impact on future civil litigation (and potential civil liability), the potential for “repeat” OSHA violations in the future, your reputation for safety within your particular industry and the potential for future lost business, and, finally, the costs associated with abatement -- for example, will abatement require that entire processes be changed, at significant expense?
For those to whom these or other concerns apply, as the above establishes, they are not alone. A well-defined process exists to allow employers their day in court.
Michael Rubin is a partner in the OSHA and Worksite Safety Practice Group at the law firm Goldberg Segalla. He devotes a significant portion of his practice to OSHA, including counseling clients regarding inspections, responding to citations, and the intricacies of the OSHA recording and reporting requirements. He has completed the Department of Labor’s OSHA-30 construction training and has authored articles/blog posts on OSHA, including as co-editor of Goldberg Segalla’s OSHA: Legal Developments and Defense Strategies blog. He may be reached at [email protected].