Two recent cases should remind employers to contest OSHA citations quickly to prevent the citations from becoming final. It’s an uphill battle if your notice of contest is submitted late.
By David Klass and Travis Vance
Under the Occupational Safety and Health Act of 1970 (OSH Act), once OSHA has issued a citation to an employer for an alleged violation of the OSH Act and the employer receives notice of it, the employer only has 15 working days to contest the citation, penalty amount or abatement period (29 U.S.C. § 659(a)). If the employer fails to notify OSHA that it intends to contest the citation, the law provides that the citation “shall be deemed a final order” of the Occupational Safety and Health Review Commission (OSHRC or Commission) and “not subject to review by any court or agency” (29 U.S.C. § 659(a)).
In other words, the citation becomes final, and the employer has lost its ability to contest the citation. Even worse, OSHA may cite your company over $12,500 a day for the failure to abate any uncontested citations.
Once the contest period has closed, the employer can file a motion to reopen the case with the Commission under Federal Rule of Civil Procedure 60, Relief from a Judgment or Order. The standard for success of the motion is set out in Pioneer Inv. Servs. v. Brunswick Assocs., 507 U.S. 380, 395 (1993), which provides a four-part test: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control of the movant; and (4) whether the movant acted in good faith.
Two Cases Affirm the Difficulty of Trying to File a Late Notice of Contest
Two recent cases have reaffirmed that it is very difficult to challenge an OSHA citation if the employer fails to contest it within 15 working days.
In Secretary of Labor v. Frame Q, LLC, an employer filed a late notice of contest, approximately two months after it was due, and the Secretary of Labor later moved to dismiss it (OSHRC Docket No. 16-2010 (Feb. 5, 2018)). OSHRC considered the late notice of contest under Rule 60 and held that it should be dismissed because OSHA had twice mailed the citation to the employer - once by certified mail and a second time by regular mail - and it was presumed that the mail was delivered because it was not sent back. The Commission rejected the employer’s argument that it delayed because it “did not fully understand OSHA rule and regulations.” The Commission also noted that the employer needed to show that it “played no role in causing his [notice of contest] to be filed late.”
The U.S. Court of Appeals for the D.C. Circuit reached a similar result in David E. Harvey Builders, Inc. v. Secretary of Labor, No. 17-1215, May 11, 2018. In that case, the court upheld the administrative law judge’s finding that the employer was at least “partly to blame for the delayed filing,” and the employer “provided no explanation why the citation was not timely forwarded” to responsible parties within the company.
It remains exceedingly difficult to challenge an OSHA citation if the employer waits until after the 15-working-day period to challenge the citation. Given this difficulty, employers should review their procedures for responding to OSHA investigations, including who will be in charge of receiving and reviewing any citations received and who and when they will be contested. Specifically, employers should ensure that after OSHA has conducted an investigation, its employees know to watch for correspondence from OSHA and know where to channel that correspondence in the company so that the right people know in a timely fashion that OSHA has issued a citation.
(Please note that some State Plan States have different contest periods and rules; consult with legal counsel.)
About the Authors: Travis Vance is a partner in Fisher Phillips’ Charlotte office. He has tried matters across several industries and various subject matters, including employment litigation, business disputes and matters prosecuted by the Mine Safety and Health Administration (MSHA) and Occupational Safety and Health Administration (OSHA). He uses unique or outside-the-box approaches to counsel employers and owners on all aspects of employment law and the development of preventive policies and procedures to avoid employment and workplace safety-related claims. Travis handles litigation in both federal and state courts as well as claims pending with state and federal agencies including the Equal Employment Opportunity Commission (EEOC), MSHA, OSHA, and the U.S. Department of Labor (USDOL). David Klass is Of Counsel in Fisher Phillips’ Charlotte office. His practice focuses on representing employers in a variety of employment matters in state and federal courts, as well as matters prosecuted by the Occupational Safety and Health Administration.
Republished with permission from Fisher Phillips’ Workplace Safety and Health Law Blog.
This material provided by the Intelex Community and EHSQ Alliance is for informational purposes only. The material may include notification of regulatory activity, regulatory explanation and interpretation, policies and procedures, and best practices and guidelines that are intended to educate and inform you with regard to EHSQ topics of general interest. Opinions are those of the authors, and do not necessarily reflect the opinion of Intelex. The material is intended solely as guidance and you are responsible for any determination of whether the material meets your needs. Furthermore, you are responsible for complying with all relevant and applicable regulations. We are not responsible for any damage or loss, direct or indirect, arising out of or resulting from your selection or use of the materials.
Would you like to become a member of the EHSQ Community? Sign-up is free and easy.