OSHA Expert Explains Options to Handle OSHA Citations and Penalties
When OSHA believes that an employer is in violation of one or more of their health or safety standards, they will issue to that employer a written citation and notification of penalty. The employer should expect to receive that citation notice in a certified mail envelope from OSHA sometime within six months of OSHA determining that a violation exists. And in some relatively rare cases, the OSHA citation and notification of penalty may even be hand delivered to the employer in person. Once notified of the citations and penalties, there are several options available to the employer on how to resolve the matter. This includes options that can result in some, or all, of the OSHA citations and monetary penalties being totally dismissed.
But, first things first. Understand that I am NOT providing legal advice about how to handle OSHA citations in this blog post. Employers who actually receive an OSHA citation should seek the council of an attorney who specializes in handling OSHA-related matters to discuss their options. I’m simply providing a non-exhaustive examination of the most often utilized options available to employers who have received an OSHA citation, or citations, to resolve the matter; sort of an introduction to OSHA procedures to contest citations for safety personnel and business managers, if you will. I will also share some of my experiences when using these various options to help employers resolve their OSHA citations in the past.
And secondly, know that the deadline for the employer to take one of the several steps available to respond to the citations is by the end of the 15-workday period (Monday through Friday, excluding federal holidays) that starts the day after the citations are received. Failure to do so means the citations become a final order reflected in the employer’s record. The employer will also be required to certify they have abated (corrected) all alleged violations in the time-frame dictated by OSHA, and pay all monetary penalties in full.
First Deadline – Post the OSHA Citations in the Workplace
What is Step #1 ? As far as deadlines are concerned, 29 CFR 1903.16 requires the employer to immediately post an unedited copy, or copies, of their citation(s) in the workplace near the area where the alleged violation(s) occurred, for affected employees to review. Speaking of mandatory postings, be aware that as things progress, employers will also be obligated to post a copy of the OSHA form used to document abatement actions taken by the employer in response to citations. And, where applicable, the employer must also post notices of any scheduled informal conferences with OSHA to discuss settling citations, penalties, and/or abatement dates, any written settlement agreements made with OSHA to resolve any citations, penalties, and/or abatement dates, and notices of any scheduled court dates announcing when a hearing will take place to litigate the citations.
After posting their OSHA citations, the employer must then explore and choose from several options available to respond to their OSHA citations, monetary penalties, and abatement dates. OSHA will provide general information about the employer’s options in a booklet (OSHA 3000) that comes in the envelope with their citations.
What if the Employer Knows They Are Guilty?
If an employer knows they were in the wrong, or if they decide they just don’t want to fight the OSHA citations, associated monetary penalties, and prescribed abatement dates to avoid the hassle, they have the option to accept everything as valid. In that case, the employer must abate the violative condition(s) in accordance with the deadlines listed by OSHA in the citations, and submit documentation and certification of abatement to OSHA within the 15-workday deadline. The employer must also pay the full amount of the proposed penalties, if any were assessed. Then, the matter becomes a final order, and all citations will be reflected in the employer’s record.
However, the employer should first see if they are eligible for the next course of action, described below.
Expedited Settlement Agreement with OSHA
To encourage quick resolution of the matter, OSHA sometimes offers an employer the option to accept an expedited settlement agreement. This usually involves OSHA offering a reduction in the monetary penalty, usually in the 30 to 40% range, in exchange for the employer not trying to negotiate or litigate any of the citation(s) and abatement date. Usually, the expedited settlement agreement form is included in the mail along with the citations. The employer would simply fill out and return that agreement form within the 15-workday period, and then, as is the case with the previous option, submit certified proof of abatement and pay the reduced amount of the monetary penalties. Since there is no means to contest citations when using this option, all citations will be reflected in the employer’s record.
Settlement Through an Informal Conference with OSHA
If an employer chooses to try and get at least some, if not all, of the citations and penalties removed or adjusted, or to get an extension on an abatement date, they have the option to request an informal conference at the OSHA Area Office from where the citations were issued. To do so, the employer must contact the Area Office to schedule an informal conference, and that meeting MUST take place within (not after) the 15-workday period (Monday through Friday, excluding federal holidays) that starts the day after the citations were received. The employer must also notify, in writing, affected employees and their representatives (e.g.: union) of the scheduled conference so they too can have an opportunity to attend the informal conference if they wish (in the envelope containing the citations, OSHA provides a fill-in-the-blank form which can be posted in the workplace to facilitate this notification).
The purpose of this informal conference is for all parties to discuss the citations and negotiate a settlement without going to court. In some cases, some or all specific citations, classifications, monetary penalties, and/or proposed abatement dates will be adjusted, or even withdrawn. However, it may be that OSHA does not offer to make any withdrawal or adjustment. Just be aware that all actions must occur and the agreement finalized withing the 15 work-day period. Furthermore, neither OSHA or the employer are under any obligation to reach a settlement during this conference; they may just agree to disagree, and the employer will have to handle resolution of their citations in a different manner.
Sometimes an employer is in negotiations with OSHA in an informal conference, but they are about to run out of time to get a signed agreement before the expiration of the 15-workday deadline, which OSHA cannot extend. In that case, the employer can present the OSHA Area Director with a letter of contest for all citations, penalties, and abatement dates, with the understanding that both parties will continue to try and resolve everything informally. Then, if successfully resolved, the employer can then cancel their notice of contest.
Contesting OSHA Citations, Penalties, and Abatement Dates
Another option available to the employer is to formally contest all or part of the alleged violations, penalties, and abatement dates. This can take place after any unsuccessful attempt to settle the case in an informal conference, or without even attempting resolution through an informal conference. To contest all or part of the alleged violations, penalties, and abatement dates, the employer must present OSHA with a written letter of contest within the 15 work-day period, taking care to specify exactly what is being contested; it could be all or some of the cited violations, proposed penalties, and abatement dates. Many employers engage their attorney or an OSHA expert to help prepare their letter of contest. Once the letter of contest has been presented to OSHA, they will send their case file to their legal team (someone formally referred to as the Solicitor for the Department of Labor), and the employer usually does the same with their attorney. Employees and their representatives (e.g.: union reps) must also be notified about, and given the opportunity to attend, all proceedings.
Eventually, the employer will be notified of hearing to be held in front of an Administrative Law Judge, or ALJ. OSHA’s case will be presented by a U.S. Department of Labor Solicitor, who acts as OSHA’s attorney, and the employer is usually represented by their own attorney. Both sides present their case to the ALJ; this includes evidence either side wishes to provide, including witness testimony and expert reports. Eventually, the AJL will issue his or her findings in a written decision, usually several months after the hearing has concluded. The ALJ may decide to uphold, alter, or vacate some, or all, of the contested items.
It has been my experience that in a majority of cases I’ve been involved with, the ALJ tends to side more often with the DOL Solicitor (in other words, with OSHA) than with the employer. But that should not be a surprise, since most of the ALJs used to be solicitors for the Department of Labor, meaning they most likely litigated cases on behalf of OSHA, and tend to see things from their point of view. But, I have also been involved in cases where the ALJ sides with the employer who presents a strong case, and withdraws the contested citation (or citations).
Appeal ALJ Decision to the Occupational Safety and Health Review Commission (OSHRC)
If either side is not satisfied with the ALJ’s decision, they have the option to file an appeal for all or part of it through the Occupational Safety and Health Review Commission (OSHRC). This commission, which consists of three commissioners appointed by the President to staggered six-year terms, will review the ALJ’s findings, read written briefs filed by the employer’s attorney and the DOL Solicitor, debate the contested items internally, and then vote on whether to uphold, vacate, or alter the contested items. Due to backlogs, and delays in Senate confirmation hearings for nominated commissioners, this process can actually take several years to run its course.
Higher Court Appeals for OSHA Citations
If the employer or the DOL Solicitor is not satisfied with the Occupational Safety and Health Review Commission’s decision, either party may appeal all or part of that decision to the applicable U.S. Court of Appeals having jurisdiction over the case, and eventually to the United States Supreme Court if they so choose.
How long can all of this take? Many years ago I was hired as Safety Director for a large company, and in my first few days at work we received notification of a decision by the U.S. Supreme Court being handed down in a case related to one OSHA citation that the company received over 20 years earlier!
Contesting OSHA Citations Issued Through a State Plan OSHA Program
Contest proceedings in States operating a State-plan OSHA program will be formatted similar to what has been described here. But all proceedings will take place through the State Plan OSHA program personnel and procedures, as well as through their associated State court system. So, check your State Plan OSHA program’s website to get official information on their process to resolve OSHA citations.
Is It Worth the Effort to Fight OSHA Citations and Penalties?
Too many times, in my opinion, an employer decides to take the path of least resistance and accept OSHA citations and penalties as they were originally issued, or as offered in an informal settlement agreement. In fact, I often hear them say “it’s just a cost of doing business”. However, if an employer believes those citations were unjustified, they are usually much better off investing the time and money necessary to resolve citations and monetary penalties fairly. And it can be done!
Look at the following list of OSHA citations and penalties below for one example.
These citations were issued in a double-fatality case in which I was hired by the company’s attorney to help defend an employer against what they believed (and I agreed) were grossly erroneous OSHA citations. There was a total of 13 citations originally classified as Serious issued to the employer, which carried a total of $131,274 dollars in monetary penalties.
First, we went to an informal conference and were successful in getting about half of the citations and penalties withdrawn. Then, we contested the remaining citations and penalties. After the hearing with an Administrative Law Judge (ALJ), about half of the contested citations and penalties were deleted. Then, we appealed the remaining citations and penalties to the Occupational Safety and Health and Review Commission. Soon thereafter, before the Review Commission took up our appeal, the Solicitor for OSHA contacted the employer’s attorney with an offer to withdraw all remaining citations and penalties except for one, which was reclassified as an Other-Than-Serious citation for a paperwork issue. As a result, the total monetary penalty assessed would drop by almost $120,000. After considerable consideration, the employer decided to take the Solicitor’s offer (even though I felt confident that the Review Commission would eventually side with the employer).
Beneficial Reasons to Fight OSHA Citations and Penalties
There are various avenues an employer can take when it comes to responding to OSHA citations and penalties, most of which are outlined above. As you can imagine, this process could be expensive and time consuming if you chose to progress through most or all available avenues.
However, fighting to have unwarranted citations removed from their record helps protect employers from receiving future citations classified as Repeat and Willful citations should OSHA conduct another inspection down the road, not to mention save them some serious money from the associated monetary penalties. Also, the employer’s OSHA inspection history, which is available on the internet for anyone to see, will cast the employer in a much better light to customers and employees, as well as prevent anyone who may try to use a bad inspection history to portray the employer as unsafe or uncaring about their workers.
Need more information about how OSHA inspections, citations, and operating procedures? Check out our advanced level Introduction to OSHA online training course available on our website. And please, if you know of someone who may benefit from the information in this blog post about how to handle OSHA citations and penalties, please send them a link to this post now, while it is fresh on your mind. And please scroll down to share your thoughts with us in the “Comments” section of this post. Thanks, Curtis