Safety Policy: Deciding When to Contest an OSHA Citation
Your company has had an OSHA inspection, and the Compliance Officer has cited you for half a dozen “Serious” violations. Should you contest the citations?
If there is even a possibility that you might wish to contest any of the citations, or the recommended penalties, or the time allowed for abatement, you must not neglect to serve a Notice of Contest on the issuing OSHA office.
The “good news” is that the Notice of Contest itself requires little in terms of required content. It does, however, have to be in writing, and (here’s the “bad news”) it must be sent (first-class mail is fine, although certified with a return receipt is best) within fifteen “working days” of your receipt of the citation. A letter directed to the area director at the address appearing on the citation, referencing the citation number, and stating that the Respondent contests specified citation items as to liability and as to the proposed penalties (plus, if applicable, the time allotted for abatement) does the job.
It’s generally a good idea to go ahead and send off a Notice of Contest, even if your true intention is to try to negotiate fewer than all of the citation items, and perhaps a reduction in the monetary penalties as to others, at an Informal Conference. We are staunch advocates of the Informal Conference, but keep in mind that scheduling one does not extend the respondent’s time to serve the Notice of Contest. If you wish not to appear unduly combative, you can add a sentence stating that while you hope to adjust and settle all matters at an Informal Conference, you are sending the Notice of Contest to preserve your rights.
The decision to pursue a contest beyond serving a Notice of Contest and an Informal Conference is subject to considerations often absent in other areas of legal practice.
A primary consideration is the cost. The maximum penalty for a “Serious” violation is $7,000.00. OSHA often assesses a lesser penalty, whereas you may spend tens of thousands of dollars taking a contest through trial. Although there are sometimes countervailing considerations, as where a citation of doubtful merit, if affirmed, might disqualify your company from public work (or private work with some GCs and CMs) keep in mind what is truly at stake, based on your citation.
OSHA enjoys the services of able attorneys in the office of the Solicitor of the U.S. Department of Labor. They are salaried federal employees, who do nothing but OSHA litigation. If you intend to hire an attorney to contest an OSHA citation, not only will you be at the cost disadvantage of paying hourly rates to private counsel, but he or she will be “outgunned” in the sense that there are, so far as I am aware, no private attorneys who make their living doing nothing other than contesting OSHA citations. Unless, perhaps, you chance to find an attorney who has migrated from the Solicitor’s office to employment in a private law firm, your lawyer will have to scale a “learning curve,” and will almost certainly be less familiar with both substantive and procedural aspects of OSHA contests (not to mention the judges who hear OSHA cases) than the lawyer on the other side.
A poor match, sometimes seen in the OSHA context, is a client who either views OSHA as a meddlesome agency, or is indignant that his company has been cited for violations, coupled with an attorney whose lack of OSHA savvy is accompanied by a belief that Maximum Aggressiveness is always and everywhere the only way to attract and retain clients.
OSHA practice needs a lighter touch. This is in part because the litigation costs usually are disproportionate to the penalties, but also because the citation on your desk today is unlikely to be your last (at least if you remain in the construction business!). Often ? indeed, usually ? the better course is to see if more doubtful items can be dropped, and/or penalties reduced, and to make adjustments in your company’s policies and practices to reduce the chances of a “repeat” violation, pay the penalties, and move on.
While certainly there are instances in which litigation is justified, dealing with OSHA requires a good measure of diplomacy. For one thing, by and large OSHA personnel are both practical, and reasonable. It’s always in your interest to be, and to appear to be, a safety-conscious employer, willing to frankly acknowledge missteps and eager to do better in a highly-hazardous industry. OSHA personnel are not affronted if you point out that, technically, you did not violate the standard cited, but tossing about spurious arguments, in a “scorched earth” resistance to a few thousand dollars in penalties, is virtually always a mistake.
Some employers hold the mistaken view that OSHA proceedings are a “kangaroo court,” in which they will not receive fair treatment. That’s not the case, but there are a couple of caveats. Congress, when it enacted OSHA, set up the OSH Review Commission to be independent of the Department of Labor. The ALJs, in our experience, are knowledgeable and fair. The most favorable contests to litigate are those in which the defenses proposed are mainly on the law. For example, perhaps you have been cited under the General Duty Clause for a hazard not covered by any specific standard. If you can show that the hazard alleged is not one recognized in the industry, you ought to be able to get the citation (and any penalties) vacated.
Less promising are fact-based contests, especially where your witnesses will need to engage in a “he said/she said” “swearing contest” pitted against the Compliance Officer. Where the playing field is not level in OSHA proceedings is the result of (1) the admissibility of hearsay evidence in administrative proceedings; (2) the informant’s privilege; and (3) the expansive definition under the Federal Rules of Evidence of what constitutes an “admission” by a party.
The Compliance Officer can, for example, testify that he was told by (your) unnamed Employee X that the standard cited was routinely violated at your jobsite. Employee X may not have actually seen a single violation, but had a conversation with Union Foreman Y, in which Foreman told Employee that such violations were an everyday occurrence. This may actually be deemed to be an “admission” by your company, and the Secretary does not need to put the employees on the stand, and you will be unable to cross-examine them.
Also, where a critical part of the puzzle turns on witness credibility, the employer’s witness will be assumed to be biased, whereas the CO will be assumed to be a disinterested and diligent public servant. The CO will rarely if ever be found to be untruthful, or his testimony tainted by such things as, for example, a desire to cover over defects in a sloppy investigation.
In short, while there are citations worth fighting, the expense and difficulty of winning a contest makes it imperative that you pick your fights wisely.
If you would like more information regarding this topic please contact Thomas H. Welby at