By: Charles B. Jimerson, Esq. & Jennifer Proscia
An inspector from the Occupational Safety and Health Administration (“OSHA”) just visited your premises and issued you, the employer, one or more citations detailing the nature of each violation committed and any associated penalties. You may be wondering what your options are to contest the citations and if there are any ways to reduce or completely eliminate the fines that may be associated with those citations. The procedure of formally contesting 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, or worse the citation will become final and you will be forced to pay the penalty. As an employer who has received a citation, you may agree to the citation, correct the condition by the date set in the citation, and pay any penalty that is proposed, or you may send in writing a Notice of Intent to Contest of the citation, proposed penalty and/or the abatement date within fifteen (15) working days of receiving the citation.
Procedure for Contesting a Violation
Before making the decision on whether to file a Notice of Intent to Contest, an employer may request an informal conference with the OSHA Area Director to discuss the Citation and Notification of Penalty in more detail. At this 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. When negotiating the settlement of a penalty, OSHA maintains a policy of reducing penalties for “small employers” and those employers “acting in good faith.” However, an informal conference must still be held within the fifteen working-day Notice of Intent to Contest period and will not act to extend the period or take place of filing the written Notice of Intent to Contest. If a contest is filed properly, it suspends an employer’s legal obligation to abate and pay the penalties until the item contested has been resolved. SeeOSHA Employer Rights and Responsibilities Pamphlet.
Any employer to whom a citation or notice of proposed penalty has been issued may notify the Area Director in writing that he or she intends to contest such citation or proposed penalty before the Review Commission. What makes this step in the procedure a problem for many employers is that the notice must be postmarked within fifteen (15) working days of receiving the notice of proposed penalty. Each notice of intention to contest must stipulate whether it is directed toward the citation or toward the proposed penalty, or both. It must also state whether all of the violations on the citation or just certain violations are being contested. Immediately after receiving the notice to contest, the Area Director will transmit such notice to the Review Commission in accordance with the rules of procedure prescribed by the Commission. The same deadlines apply to any employee or representative of employees of an employer who wishes to allege that the period of time fixed in the citation for the abatement of the violation is unreasonable. 29 C.F.R. § 1903.17. However, if the employer fails to send the required notice to the Area Director within fifteen working days from the receipt of the citation, and no notice is filed by an employee or representative of employees, 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.A. § 659.
Once a proper Notice of Intent to Contest is filed, the OSHA Area Director will transfer the employer’s case to the Occupational Safety & Health Review Commission (“OSHRC”). The OSHRC hears employer contests of OSHA violations and assigns the case to an administrative law judge (“ALJ”) who will then schedule a hearing. This hearing resembles a regular trial, including examination and cross-examination of witnesses, and is open to both employers and employees. Once the ALJ makes a ruling, the employer may request a further review by the OSHRC and if still not satisfied after the OSHRC’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. SeeOSHA Employer Rights and Responsibilities Pamphlet.
What if your Notice is Untimely?
Although OSHA regulations are very stringent in regard to filing deadlines and enforcement procedures, a few courts have found untimely Notices of Intent to Contest to be “excusable” under certain circumstances. One of these situations is when the violation was due to the Secretary of Labor’s “deception or failure” to follow appropriate procedures. Atl. Marine, Inc. v. Occupational Safety & Health Review Comm’n, 524 F.2d 476, 477 (5th Cir. 1975). The court in Atlantic Marine held that held that a “powerful argument” can be made that a petitioner should not be completely denied review of a Citation of Violation for not having filed a Notice of Intent to Contest within the 15-day limit stated in the Act if the Secretary of Labor’s “deception or failure to follow proper procedures is responsible for the late filing.” In that case, some of the instances of the Secretary of Labor’s non-compliance asserted by the petitioners included:
(i) during negotiation of the settlement concerning the first citation, they were led to believe by the Secretary that the six months it would take for the required safety equipment to be delivered was satisfactory, (ii) the Secretary failed to advise the petitioners of continuing violation immediately after the reinspection, in violation of the Secretary’s own regulations, 29 CFR s 1903.7(e), (iii) the Secretary did not issue the Notification of Failure to Correct and of Proposed Additional Penalty “with reasonable promptness” (it was issued 41 days after the reinspection) as required by 29 U.S.C.A. s 658(a), and (iv) the Secretary failed to serve the petitioners’ counsel of record with the Notification of Failure to Correct Violations and Proposed Additional Penalties, in violation of 29 CFR s 2200.7(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. SeeArch of Kentucky, Inc. v. Dir., Office of Workers’ Comp. Programs, 556 F.3d 472 (6th Cir. 2009).
When faced with an OSHA citation and/or penalty, it is important to know the procedure of contesting such a citation and penalty in order to avoid the serious consequences of having to pay unreasonable fines. Although limited in scope, there are still a few scenarios to suggest that an employer may have a claim to either contest or modify penalties resulting from OSHA violations, after the 15 day period provided by OSHA regulations. However, since those situations are so limited, the most important step when issued a citation is to file a Notice of Intent to Contest within the fifteen working-day period and subsequently avoid the difficult process of having to prove why your untimeliness is “excusable.”