Dan Napier, CIH
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
For more information, write to:
U.S. Occupational Safety and Health
1120 20th Street NW, 9th Floor
Washington, DC 20036
Phone: 202-606-5400 Fax: 202-606-5050
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
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
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.