An Overview of Contesting OSHA Violations
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If your facility or jobsite is inspected by Occupational Safety and Health Administration (“OSHA”), and the inspector indicates there are workplace safety violations, you need to understand your OSHA employer rights and act quickly. Failing to timely address the OSHA citation can leave your company in the position of owing substantial amounts of money to the federal government, with little recourse of appealing such a fine. This guide will outline what you, the employer, should expect and what proactive steps you should take after the inspection and after a citation is issued for one or more OSHA violations.
What to Expect: From Inspection to OSHA Citation
After an inspection, OSHA has six months to issue a citation. 29 U.S.C. § 658(c). After the site inspection occurs, the inspector will file a report with the OSHA Area Director. The Area Director will review the alleged violations, assess the severity of the violations, and determine if the party cited is a repeat offender. Once these determinations are made, the Area Director may issue a citation to the employer, via U.S. Mail.
Action Items: From Inspection to Citation
The overall purpose of Occupational Health and Safety Act (“Act”) is to encourage workplace safety. Employers who may face citations are well served to take immediate action to correct the alleged violations and document the same. That way, when the citation issues, the employer can show their good-faith efforts to correct the issue without the intervention of OSHA.
For example, if construction employees were observed not wearing hardhats, the employer should communicate with jobsite foremen regarding the need to wear hardhats and mandate that daily toolbox talks include instructions to wear the same. To document such remedial measures, the employer could send an e-mail or memorandum to the jobsite employees reminding them of their responsibilities related to jobsite safety. Actions such as this may be viewed favorably by OSHA.
Employers should be aware that if they have crews on multiple job-sites, OSHA may inspect more than one site, and issue multiple citations for similar violations. This makes swift and decisive corrections by the employer all the more important.
The employer should also take steps to ensure the citation reaches the appropriate person once received. The citation will most likely arrive at the business’s address, and not the address of the business’s registered agent. The citation will also arrive along with the rest of the business’s mail delivered by the postal service, and will not be delivered by a process server or private courier.
The employer has a rigid fifteen business day deadline to respond to the citation once received. 29 U.S.C. § 659. If the employer fails to respond, the citation can become final and leave the employer with few options to contest the citation.
To ensure that the citation reaches the appropriate person, the employer should inform whatever staff collects and sorts mail to “be on the lookout” for any mail from OSHA and how to deal with the mail once received.
What to Expect After Receiving the Citation
Once a citation is received the employer has three choices:
- Pay the citation.
- Proceed to an Informal Conference.
- Contest the Citation.
The first option precludes further action by the employer. If an employer decides to take this course of action, they should be aware that going forward they may be considered a repeat violator if OSHA observes similar safety violations in the future. Repeat violators may be subject to higher fines in the future.
At the informal conference, some of the remedies an employer may discuss are a negotiation for an informal settlement agreement, ways to correct violations, proposed abatement dates, etc. Further, the employer may be able to negotiate a reduced fine based on a number of criteria, including that the employer qualifies as a “small employer,” or whether they are acting in “good faith” (for example, did the employer immediately correct the issue).
The third option will allow the employer to dispute their liability for the alleged violation. The Occupational Safety & Health Review Commission (“OSHRC”) will serve as the adjudicatory body for this dispute. OSHRC is a wholly separate and independent body from OSHA.
Action Items After Receiving the Citation
After receiving the citation, the employer should contact the OSHA Area Director. An employer may request an informal conference with the OSHA Area Director to discuss the Citation in more detail. Requesting an informal conference will not preclude contesting a citation.
Requesting an informal conference will not toll or extend the fifteen business day deadline to file the Notice of Contest.
To contest the citation, the employer must send a Notice of Contest to the OSHA Area Director via U.S. mail within fifteen business days of receiving the citation. The Notice of Contest may be as simple as the following form language:
Re: NOTICE OF CONTEST
Dear Area Director:
This is a Notice of Contest of the above citation and all subparts, inclusive of all penalties for the citation.
Due to the time sensitive nature of the Notice of Contest, the employer should send the same via certified mail, and retain any receipt for their records.
If no Notice of Contest is filed by an employer, or filed after the expiration of the fifteen business day period, the citation and the assessment of penalty, will be deemed a final order and not subject to review by any court or agency. 29 U.S.C. § 659.
If an employer fails to file a Notice of Contest within fifteen business days, all hope is not lost. This occurs with sufficient frequency that when accessing the OSHRC e-filing system, one of the three options users have is to file a late notice of contest.
However, if an employer is able to demonstrate that the Notice of Contest was not filed due to “mistake, inadvertence, surprise, or excusable neglect,” OSHRC may set aside the citation and allow the employer to contest the same. This standard is similar to that set forth in Federal Rule of Civil Procedure 60(b).
Another situation in which filing an untimely Notice of Contest may be exempted, is if the petitioner can prove “excusable neglect.” When determining whether a party’s neglect is “excusable,” the determination is an “equitable” one, in which a court must take into account all pertinent circumstances surrounding a party’s failure to file on time, and failing to disprove “reasonable control” is not automatically fatal to a petitioner’s request for relief. George Harms Const. Co. v. Chao, 371 F.3d 156 (3d Cir. 2004). The court in George Harms Const. Co. found that the loss of OSHA citations in an otherwise reliable mail-handling process was “unforeseeable human error beyond company’s reasonable control.” It also held that the petitioner was entitled to relief from the “final order” of the Commission, since factors of “good faith, prejudice, efficient judicial administration, and control all weighed in favor of company” after the petitioner produced testimony as to the company’s credible mail handling procedure. However, other courts have pointed out that in such scenarios, there must be specific evidence provided by the employer to show how this error occurred in order for this relief to be considered. See Arch of Kentucky, Inc. v. Dir., Office of Workers’ Comp. Programs, 556 F.3d 472 (6th Cir. 2009).
If an employer has missed the fifteen day deadline to file a Notice of Contest, they may wish to consult with counsel to determine if a Late Notice of Contest is a viable path forward.
What to Expect After Notice of Contest Is Sent
Once the Notice of Contest is filed properly filed, it suspends an employer’s legal obligation to abate and pay the penalties until the item contested has been resolved. See OSHA Employer Rights and Responsibilities Pamphlet.
After the Area Director receives the Notice of Contest, the same will be forwarded to OSHA, in order for OSHA to file a Complaint against the employer with the OSHRC. A Late Notice of Contest will need to be filed by the employer. OSHA will have twenty days to file the Complaint. 29 C.F.R. 2200.34. After the Complaint is filed, the employer will have twenty days to respond. 29 C.F.R. 2200.34. The employer may raise any affirmative defenses it has to the Complaint in its Answer.
Within thirty days of the Answer, the OSHRC may issue a scheduling order to provide a timeline for the litigation. 29 CFR 2200.51. The employer and OSHA may then engage in discovery, such as taking deposition, issuing interrogatories, and requesting documents, as would occur in a normal judicial proceeding. See 29 CFR Part 2200, Subpart D. Thereafter, the matter will procced to hearing, governed by 29 CFR Part 2200, Subpart E.
However, if the amount of the penalty is low, or a party requests, the matter may proceed to “Simplified Proceedings.” The simplified proceedings will reduce the pleading required and disallow discovery. See 29 CFR Part 2200, Subpart M.
Conclusion On OSHA Employer Rights Regarding OSHA Violations
When faced with an OSHA citation it is important to know the procedure of contesting such a citation in order to avoid the serious consequences of having to pay unreasonable fines.
An employer should act quickly, as efforts to fix the violation will be viewed favorably, and missing the deadline to file a Notice of Contest can leave the employer with few options.