Within the last six months an inspector from the Occupational Safety and Health Administration (“OSHA”) visited your premises and you just received a “Citation and Notification of Penalty” for violations allegedly identified during the OSHA inspection. Now what? OSHA citations can be confusing, frustrating, carry heavy penalties, and must be responded to within a rather short fifteen working days. Thus, it is valuable to develop a working knowledge of your rights, responsibilities, and options to minimize exposure to liability from OSHA citations. This article outlines the general procedures that you should follow, and the basics you should know to avoid additional penalty.
The procedure for responding to an OSHA citation is relatively straightforward, however if you do not abide by the strict deadlines associated with that procedure, you can lose the right to contest the citation, the citation will become final and binding, and you will be forced to pay the full amount of the penalty. As an employer who has received a citation, you have two options for response:
- you may agree to the citation, correct the condition by the date set in the citation, and pay any penalty that is proposed within fifteen working days from receipt of the citation; or
- you may send a Notice of Contest to OSHA within fifteen working days from the receipt of the citation. 29 U.S.C. § 659(b); 29 C.F.R. § 1903.17(a).
The definition of “working days” is “Mondays through Fridays but shall not include Saturdays, Sundays, or Federal holidays.” In computing 15 working days, the day of receipt of any notice shall not be included, and the last day of the 15 working days shall be included. 29 C.F.R. § 1903.22.
If you do not contest within 15 working days, your citation will become a final order not subject to review by any court or agency. 29 U.S.C. § 659(a) (emphasis added). Accordingly, it is critical that you timely respond. However, sometimes events give rise to a justifiable excuse for late filing your notice of contest. For instance, the Occupational Safety and Health Review Commission (“Commission”) may set aside the final order, if you can demonstrate:
- misconduct by OSHA, or
- that the notice of contest was not filed due to “mistake, inadvertence, surprise, or excusable neglect.”
29 U.S.C. § 661(g) (Commission proceedings conducted in accordance with Federal Rules of Civil Procedure unless Commission has adopted different rule); Branciforte Builders, Inc., 9 BNA OSHC 2113, 2117 (No. 80-1920, 1981) (late notice of contest may be excused under Federal Rule of Civil Procedure 60(b)); Federal Rule of Civil Procedure 60(b). Nevertheless, you should not rely upon these excuses for late filing, and you should adopt procedures to ensure that OSHA citations are promptly handled.
When you receive a citation, you must post a copy of the citation at or near the place where each violation occurred to make employees aware of the hazards to which they may be exposed. The citation must remain posted for three working days or until the violation is corrected, whichever is longer. You must comply with these posting requirements even if you contest the citation. Failure to follow posting requirements is a violation and can result in a penalty.
Before sending your notice of contest, you may request an informal conference with the OSHA Area Director within the 15-working-day period to discuss any issues related to the citation. In most cases, we suggest that you take this opportunity to negotiate settlement thereby eliminating the need for the more formal procedures associated with litigation before the Commission. If you are unable to settle the claims, you can also use the informal conference for the following:
- obtain a better explanation of the violations cited;
- obtain a more complete understanding of the specific standards that apply;
- discuss ways to correct violations;
- discuss OSHA’s calculation of the proposed penalties;
- discuss proposed abatement dates;
- obtain answers to any other questions you may have; and
- work together with OSHA to devise solutions to workplace safety issues.
To be clear, an informal conference is voluntary and is not required. If you desire an informal conference, you must ensure that it occurs within the 15-working-day deadline to file a notice of contest, and understand that an informal conference will neither extend the 15-working-day period nor take the place of the filing of a written notice if you desire to contest. You should also be aware that information and statements you give to OSHA during the informal conference (or at almost any time for that matter) may be used by OSHA against you, so tread carefully.
The informal conference is not your only opportunity to pursue settlement. If you are unable to settle with OSHA before having to file your notice of contest, you should have the opportunity for a later mediation (OSHA calls it a settlement conference), during the litigation of the case. In fact, you can move to have the case assigned to a Settlement Judge pursuant to 29 C.F.R. 2200.120(a) for voluntary settlement proceedings, and if the aggregate amount of penalties is $100,000.00 or greater, the ALJ must assign the case to a Settlement Judge for mandatory settlement proceedings. The Settlement Judge presides over the case as to procedural aspects, and then acts as the mediator during the settlement conference. As with civil litigation, many OSHA cases are resolved through settlement.
Litigating the Citation
Once a proper and timely Notice of Intent to Contest is filed, the OSHA Area Director will transfer your case to the Commission. The Commission hears employer contests of OSHA violations and assigns the case to an administrative law judge (“ALJ”). OSHA will file a Complaint within twenty days. 29 C.F.R. § 2200.34 (a). You will then have twenty days to file an answer and affirmative defenses, or motion to dismiss. 29 C.F.R. § 2200.34. The rules of procedure governing the litigation with OSHA are set forth in 29 U.S.C. § 2200, et seq. The case resembles a regular civil lawsuit, including document discovery and examination and cross-examination of witnesses. Once the ALJ makes a ruling, the employer may request a further review by the Commission and if still not satisfied after the Commission’s ruling, may appeal to the Federal circuit court in which the case arose or the Federal circuit court where the employer has his or her principal office.
If you received more than one citation, the Commission may docket each citation as a separate case. If that happens, you may seek to have the cases consolidated, through a motion pursuant to 29 C.F.R. 2200.9, if the cases pertain to a common party, and involve common questions of law and fact.
In responding to OSHA’s complaint in the Commission lawsuit, you should consider all possible affirmative defenses. A few of the more common defenses applicable specially to OSHA cases that we have seen alleged are as follows:
- The cited violations resulted from unforeseeable, unpreventable, or isolated employee misconduct. In pleading this defense, you should also allege that the employer established work rules designed to prevent the alleged violation, adequately communicated these rules to its employees and contractors, took steps to discover such violations, and effectively enforced its rules when violations were discovered. Furthermore, you need to be aware of these requirements now, such that you implement them into your normal safety plan.
- Compliance with the requirements of the cited standard(s) would have been functionally impossible or would have precluded performance of required work and alternative means of employee protection were used or were unavailable.
- The Complaint fails to state with particularity “the time, location, place and circumstances of each such alleged violation” as required by 29 CFR 2200.34(a)(2)(ii).
- The Complaint fails to state with particularity “the considerations upon which . . . the proposed penalty of each such alleged violation are based” as required by 29 CFR 2200.34(a)(2)(iii).
- OSHA performed its inspection without a warrant and without permission to access the property where OSHA performed its inspection.
Recovery of Attorney’s Fees and Costs
You may be entitled to an award of attorney’s fees and costs upon a dismissal of the Complaint, or, upon a final judgment award in your favor if the proposed penalty in the citation is substantially in excess of the final judgment award. Whether you are eligible is governed by 29 C.F.R. § 2204.105. Of note, to be eligible you must have a net worth of not more than $7 million and employ not more than 500 employees, as of the date the notice of contest was filed.
Do Not Retaliate Against Workers
Section 11(c) of the OSH Act prohibits employers from discharging or otherwise retaliating against an employee who has exercised any right under the Act, including the right to make safety and health complaints or to request an OSHA inspection. It provides in relevant part:
No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.”
- 11(c)(1), OSH Act. However, do not let this provision confuse you into thinking that you cannot or should not punish your employees for violating your safety rules. OSHA in fact advocates for strong enforcement of your safety rules through penalties, such as monetary fines, suspension, and termination of employment.
Do Not Provide False Information
All information that you report to OSHA must be accurate and truthful. Providing false information on efforts to abate cited conditions or in required records is punishable under the OSH Act. Section 17(g) of the OSH Act provides: “Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this Act shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than six months, or by both.”
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. First and foremost, you should implement procedures in your business to ensure that any OSHA citation is promptly handled, to avoid missing the rather short 15-working-day deadline. In addition, knowledge of your options for mitigating the citation through settlement negotiations and defenses will provide value to your business and minimize exposure to liability. If you are faced with a citation arising from a legitimate violation or safety risk, we suggest treating OSHA as your ally to work together to develop solutions, to implement those solutions with guidance from OSHA, and to fully document your plan and execution of the plan to create a file of evidence to use in your defense if you are faced with another citation from OSHA in the future.