In reviewing OSHA decisions for this series, we’re startled at how often the OSH Review Commission dismisses untimely Notices of Contest, and upholds citations in cases where the employer simply disregards the citation.
In civil practice, there are deadlines, and there are deadlines. Some deadlines are hard-and-fast, drop-dead dates. Some can be excused, “for good cause shown.” Still others are honored primarily “in the breach.”
When an employer is served with an OSHA citation, it has 15 working days to preserve its rights by filing a Notice of Contest. Fifteen “working days” means that weekends and holidays observed by the federal government are not counted.
This deadline is essentially of the hard-and-fast variety. Occasionally, in truly unusual circumstances, OSHA will not insist on the strictest, to-the-letter observance, but we more often see Notices of Contest, even ones that are just a day or two late, being dismissed.
Thus, for practical purposes, if you are even considering contesting your OSHA citation, do not fail to serve written notice, within the deadline, on the local OSHA office that issued the citation, mentioning the inspection number, and specifying just what it is that you are contesting. Sometimes it will be all of (1) liability for the alleged violation, or specified citation items; (2) the characterization of all, or some, of the items in the citation (as “Willful,” “Serious,” etc.); (3) the amount of the monetary penalty recommended by OSHA for one or more citation items specified in the Notice of Contest; and (4) the time for abating one or more citation items stated in the citation.
Being over-inclusive in a Notice of Contest is to be preferred over being insufficiently inclusive. Serving a Notice of Contest will cause the matter to be referred by the local OSHA office to the OSH Review Commission in Washington, D.C., and cause the regional office of the Solicitor of Labor to become involved. It does not mean, however, that you have irrevocably committed yourself to litigate every contested issue through trial. Occasionally, an employer will be dead-on certain as to exactly which aspects of a citation it wishes to contest. An example would be a single-item citation, where the employer (preferably, after consultation with experienced OSHA counsel!) while certain that its employees committed the violation, is equally certain that the characterization of the violation as a “Repeat” violation is wrong (as in the case where neither the employer, nor any predecessor entity, has ever before been cited by OSHA, not just for the specific violation cited, but for any similar violation).
While, in the latter case, you may wish to contest only the characterization of the citation item as a “Repeat” violation, again, it’s best to err on the side of preserving our rights, and contest everything. You can always withdraw some, as well as all, of the citation, in the course of the contest proceedings.
If you want to contest the citation, or parts of it, treat the 15 working day time limitation as one that will almost certainly not be extended. Certainly, inattention, or sloppy office procedures, are emphatically not valid excuses. So, “Tip #1” for this month: instruct all personnel who receive and open the company mail to bring an OSHA citation to the boss’s attention immediately, and count and “tickle” the 15th working day following receipt of any OSHA citation, as the date by which a written Notice of Contest must be sent out.
“Tip #2” is that, however wrong you may consider an OSHA citation to be, or however adamant your libertarian principles that “the government has no damn right to be telling you how to run your business,” don’t be foolish, and don’t shoot yourself in the proverbial foot, by disdaining to respond to an OSHA citation. (An example of this we remember from a few years back was the owner of a roofing company, who indignantly told OSHA that since he, the owner, routinely worked on elevated surfaces with no fall protection, OSHA had no right to demand that his employees receive better protection. No surprise: the citation was affirmed as “Willful.”)
While recent increases in OSHA penalties make the following proposition less true that it was in the past, it remains the case that the penalties for “Serious” and “Other Than Serious” citations are, usually, sufficiently slight that, as a matter of business judgment, you may not wish to contest an item with only one or two items (“Other Than Serious” citations often carry no monetary penalties at all) (although they can be the predicate for “Repeat” citations at a later date).
Contests, in our experience, are more likely to succeed when they are based on legal grounds, than when the basis is a “he said, she said” “swearing contest,” pitting your supervisor against an OSHA compliance officer. It’s in OSHA’s interest that employers regard contest proceedings as being unbiased and fair. The Administrative Law Judges (ALJs) who conduct bench trials of contests of OSHA citations are specialists, and pretty much all of them are earnest and highly knowledgeable about OSHA standards, and the laws relevant to contest proceedings. Where an OSHA citation is wrong on the law, usually the ALJ will vacate it.
Nonetheless, while we have encountered in the decisions rare instances of an ALJ finding unworthy of belief disputed testimony by an OSHA compliance officer, we perceive a distinct “tilt” in favor of the compliance officers, who are seen as unfailingly truthful guardians of a public interest (namely, employee safety) while business owners, and their upper-level employees, are seen by the ALJs as motivated to prevaricate. Thus, where the primary basis for your contest is that the compliance officer is not telling the whole truth and nothing but, it’s more of an uphill struggle.
So, often the slim chances of success, coupled with the considerable cost to take a citation contest through trial, make it the more prudent and businesslike decision to accept the citation, pay the penalties, and move on. Even where your first impression is that that’s the course of action you should take, it’s still a good idea to consult OSHA counsel (which is “Tip #3”). Especially where the citation has multiple items, counsel may be able to help you negotiate a settlement with OSHA, that will combine two or more items, or drop items, or reduce the monetary penalties. There are instances, also (especially where you have a recent history of prior OSHA citations) where it’s important to proceed with a full understanding that accepting the current citation may impair your ability to bid on public (and, increasingly, on private) work.
What you should never do is to ignore the citation (that’s our “Tip #4”) or, having served a Notice of Contest, fail to participate in the process. If you are in construction, you’re in an industry that is targeted by OSHA for enhanced enforcement, and frequent inspections. Whatever the outcome on your current citation, you will be seeing OSHA again, probably sooner rather than later. You may want, or need, OSHA to negotiate some reduction on your next citation, which will be more difficult, if their perception is that you do not respect the process, or are inattentive to employee safety and health.
So, even if your decision is not to contest your current citation, it’s usually a good idea to have an informal conference, shortly after the citation is served. Bring your safety director, bring your written safety plan, and look to impress the OSHA personnel with your concern for employee safety, and that you don’t see OSHA as an enemy. You can, and should, ask for concessions (in one recent case involving our firm’s client, OSHA was unexpectedly generous) but even if no concessions are granted, you will hopefully have convinced OSHA that your company is not one of the few who are genuinely indifferent to employee safety.
If, after serving a Notice of Contest, you decide not to pursue the contest, be sure to write to the Solicitor, and advise him or her accordingly. Don’t put them to the trouble of making motions to the ALJ because you’re not filing pleadings, discovery materials, or other pretrial items in a timely fashion. You will want courtesies (or the benefit of the doubt) from OSHA sometime in the future. Tip #5, therefore, is to extend appropriate courtesies today.