Dan Napier, CIH
800-644-1924

What to do when OSHA cites you!

If you are cited by federal OSHA you should contest the citation, the amount of the fine and /or the abatement period.  There is no Down Side to filing a Notice of Contest.   If you do not have a 'Notice of Contest' on file the Area Manager can go back on whatever was discussed and stick you with the whole original citation, you will have no recourse.  There is a famous movie Producer  who is often quoted  'A Verbal Contract is not worth the paper it is written on' that is especially salient at these informal meetings.

 If you file the written Notice of Intent to Contest within the required 15 working days, the OSHA area director forwards your case to the OSHRC. The OSHRC hears employer contests of OSHA citations. They are an independent agency separate from the Department of Labor. The OSHRC assigns the case to an administrative law judge who usually will schedule a hearing in a public place close to your workplace. Both employers and employees have the right to participate in this hearing, which contains all the elements of a trial, including examination and cross-examination of witnesses. You may choose to represent yourself or have an attorney represent you. The administrative law judge may affirm, modify, or eliminate any contested items of the citation or penalty.

As with any other legal procedure, there is an appeals process. Once the administrative law judge has ruled, any party to the case may request a further review by the full OSHRC. In addition, any of the three commissioners may, on his or her own motion, bring the case before the entire OSHRC for review. The OSHRC's ruling, in turn, may be appealed to the Federal circuit court in which the case arose or for the Federal circuit where the employer has his or her principal office.

For more information, write to:
U.S. Occupational Safety and Health
Review Commission
1120 20th Street NW, 9th Floor
Washington, DC 20036
Phone: 202-606-5400 Fax: 202-606-5050
www.oshrc.gov

If you do not file a notice of contest you will have nothing to work with after the fifteen days have expired.  This is a brief outline of what you MUST do and how the system works.

    1. Within 15 working days from the time the citation was received by registered mail, you must notify the Department of Labor in writing of your intent to contest. (This is called a notice of contest, and should be sent by registered mail.) This written notice should be sent to the OSHA area director who signed the citation on the next to the last page, and should specify exactly what you are contesting.  Do not get specific here, vague is the winning hand.  If you do get wordy here mention everything that you can, but be warned you may be painting yourself into a corner.  OSHA can try to keep you to only the items that you mentioned in your 'notice of contest' --The citations are multiple citations for the same item, the same situation is cited under several different code sections, they are 'Independent Employee Actions' etc etc

    2. Once you receive notice that the case has been docketed, you have to notify your employees and their labor representatives that it is your intention to contest the citation. This allows employees to ask for information or to attend conferences and hearings.

    IMPORTANT NOTE : At this point in time, the Secretary of Labor must file a written complaint to the OSHA Review Commission within 20 days from the time they received your notice of contest. You will receive a copy of this complaint letter.   You must start your defense before you get that notice.  You have to be ready to mount your arguments, identify your witnesses, and to request all the information that OSHA is going to use at the hearing.  If OSHA does not give you all the information that you request, you can ask the Judge to issue a subpoena requiring OSHA's compliance with your requests.
   
    3. The employer, has to file a written answer to the complaint to the OSHA commission within 15 days from the date which the Secretary of Labor files the complaint. All mail to OSHA has to be sent Registered US Mail with a return receipt.

    You will get notified of the assignment of your case to a commission judge. A pre-hearing conference may will be scheduled. You will be notified at least 10 days in advance of this meeting.

    You have to prove that you did the following:

    4. Post a notice of the meeting for your employees plus serve notice on all unions which represent your employees that a pre-hearing conference has been scheduled. 

    5. You notified the commission that you have complied with the requirements for notifying affected employees . (A form for completing this requirement will be furnished by the commission.)

     6. If, after the Pre-Hearing or any informal meetings with the Area Manager you cannot come to an agreement, there will be a hearing before a review commission judge.  This is an informal, but very legally operated hearing.  You can represent yourself or hire an attorney to represent you.  The hearing is not for the inexperienced. You get to hear OSHA present their case, you can question the OSHA witnesses.  You then get to present your side of the story, present witnesses, and discuss the reasons why you believe OSHA is incorrect in their assessment of the citations. OSHA can question your witnesses during the hearing.  After the hearing the Judge will send you a decision.  This decision becomes final 30 days after the Judge sends it to you, OSHA and  the commission.  If you do not agree with the judge's decision, you may still appeal the decision to the review commission within thirty days.  The review commission usually supports the review commission's Judges.  The 'Last Resort' is to hire an Appellate Lawyer and have the case heard before the District Court of Appeals.