This is the second installment of a two-part series detailing: (1) strategies and approaches to prevent OSHA citations; and (2) effectively responding to OSHA citations. In the first article, methods for preventing OSHA citations were described. In this issue, OSHA citation procedure and methods for effectively responding to an OSHA citation are identified.
B. Effectively Responding to OSHA Citations
In the event that an employer receives an OSHA citation, decisive and informed action must be taken immediately. Upon receipt of a citation, an employer only has 15 working-days to take the following actions: (i) request and participate in an informal conference; (ii) pay the proposed penalty or settlement amount; or (iii) formally contest the citation. After the 15 working-day period expires, the citation and proposed penalties become final and the options available to the employer become extremely limited.
I. Informal Conference
In an informal conference, the employer is permitted to meet with a representative from the OSHA area office and present any evidence it believes would support an adjustment to the citation and/or penalty. The Informal Conference is strongly recommended because OSHA is typically amenable to a reduction in the proposed penalty during the informal conference. It is critical to note, however, that an informal conference does not toll the 15-working day period to file a notice of formal contest. It is recommended, therefore, that an employer file a request for informal conference simultaneously with a notice of intent to contest the citations to protect its rights. In the event that the employer is unable to negotiate an acceptable settlement during the informal conference, the employer will then have an opportunity to proceed to a formal contest.
II. Formal Contest
If an employer is unable to reach an acceptable settlement with OSHA during the informal conference, the employer may proceed to formally contest the citations. As indicated above, the notice of intent to contest the citations must be filed within 15 working-days of receipt of the citation.
The form and content of the notice of intent to contest is simple, and can be found at www.oshrc.gov. Upon receipt of the notice of intent to contest, the OSHA area office will forward the notice to the Occupational Safety and Health Commission (the “Commission”), the adjudicatory body designated to process OSHA contests.
The Commission will then “docket” the case and it will be assigned to an administrative law judge and the Secretary of Labor solicitor responsible for prosecuting the citation on behalf of OSHA.
Once the citations have been formally contested, the matter will be assigned to either simplified proceedings or conventional proceedings. Simplified proceedings are appropriate for cases that involve less complex issues and for which more the more formal procedures used in conventional proceedings are deemed unnecessary to assure the parties a fair and complete contest. Cases appropriate for simplified proceedings are those with one or more of the following characteristics:
• relatively simple issues of law or fact with relatively few citation items;
• total proposed penalty of not more than $30,000.00;
• a hearing that is expected to take less than two days; or
• a small employer whether appearing with or without an attorney.
Cases having willful or repeated violations or that involve a fatality are not appropriate for simplified proceedings. In a simplified proceeding, a complaint and answer is not required, and discovery and motions are discouraged and permitted only when ordered by the judge. The hearing under simplified proceedings, the Commission-equivalent to a trial, is less formal, and the Federal Rules of Civil Procedure, which govern conventional proceedings, do not apply. If an employer’s citation meets the criteria above, simplified proceedings may be an efficient and cost-effective way to contest the citation.
Conventional proceedings are more similar to traditional litigation. There is an answer and a complaint, and discovery is permitted freely. Hearings are governed by the Federal Rules of Evidence and are more formal than hearings conducted pursuant to simplified proceedings. Each party is given the opportunity to submit a post-hearing brief to the judge with its proposed findings of fact and conclusions of law with reasons why the judge should decide in its favor.
Regardless of whether a contest is referred to simplified proceedings or conventional proceedings, the Commission encourages settlement of cases, and cases can be settled at any time. Any party can also request that a Settlement Judge be appointed to facilitate a settlement. A Settlement Judge is similar to a mediator, in that he or she can request statements of the issues, which are similar to mediation summaries, confer privately with each party to address the relative strengths and weakness of their position, and is required to keep all statements made and presented during the course of settlement proceedings confidential.
III. Whether to Settle During the Informal Conference or Contest the Citations
Generally speaking, it is advisable to settle any OSHA citations during an informal conference. There are, however, situations where an employer may decide not to accept a settlement. For example, occasionally the proposed financial penalties in the citation(s) are so high that even the reduced penalty offered in a proposed settlement agreement by OSHA will financially devastate the employer’s business. In a formal contest, the Commission retains discretion to reduce penalties based upon firm size, the good faith of the employer, and the employer’s history of previous violations, even if the citation itself is affirmed by the Commission. An employer may also disagree with OSHA’s classification of the citation. For example, an OSHA inspector may classify an OSHA violation as “repeat” or “willful” based upon his or her application of the facts to the law. Repeat and willful citations carry a multitude of unpalatable consequences. For example, repeated or willful violations can carry a proposed penalty of up to $70,000.00. An employer may choose to contest a relatively minor citation if he or she believes that there is a significant risk of receiving a similar violation in the future. Similarly, an employer risks higher insurance premiums as a result of multiple OSHA citations.
Ultimately, the decision whether to formally contest a citation is based upon the facts specific to the situation. However, if an employer decides to contest the citations, there are several different approaches that can be taken in order to pursue the employer’s goal in the most effective manner.
DALE A. EVANS, ESQ.
The Soto Law Group, P.A.
2400 E. Commercial Blvd., Suite 400
Fort Lauderdale, FL 33308
Dale A. Evans Jr. is an associate with the firm whose primary practice areas are construction and business law. Dale represents owners, municipalities, general contractors, subcontractors and material suppliers in all phases of business, construction, and insurance defense litigation, and has experience in lien foreclosure, payment and performance bond claims, construction defects, delay claims, and breaches of contract. In addition, Dale assists clients with contract review and drafting, negotiation, licensing, and OSHA defense.