Both employers and employees have a right to contest citations and penalties and to request a review of decisions made by administrative law judges by the full Occupational Safety and Health Review Commission (OSHRC). The process is used frequently by employers but infrequently by employees. Reflect on situations where you believe an employee would benefit the most from contesting a citation. Respond with 200 words
UNIT VI STUDY GUIDE
Adjudicating OSHA Citations
Course Learning Outcomes for Unit VI
Upon completion of this unit, students should be able to:
1. Examine Occupational Safety and Health Administration (OSHA) operational processes.
1.1 Discuss the process for contesting OSHA citations.
7. Summarize legal processes related to employer criminal sanctions.
7.1 Explore the OSHRC webpage for prior commission decisions.
7.2 Analyze the outcome of a OSHRC case study.
Course/Unit
Learning Outcomes
1.1
7.1
7.2
Learning Activity
Unit Lesson
Chapter 15
Unit VI Case Study
Unit Lesson
Chapter 15
Webpage: “Judge Upholds US Department of Labor Citations, $145K in
Penalties for Denver Contractor that Ignored Safety Requirements
Repeatedly”
Unit VI Case Study
Unit Lesson
Chapter 15
Unit VI Case Study
Required Unit Resources
This unit will use a chapter from the following resource:
Occupational Safety and Health Administration. (2020). Field operations manual. U.S. Department of Labor.
https://www.osha.gov/enforcement/directives/cpl-02-00-164
In order to access the following chapter resource, click the chapter link below.
Chapter 15: Legal Issues
In order to access the following resource, click the link below.
U.S. Department of Labor—Region 8. (2021, August 26). Judge upholds US Department of Labor citations,
$145K in penalties for Denver contractor that ignored safety requirements repeatedly: Premier
Roofing LLC exposed emploees, subcontractors to fall hazards [News release]. Occupational Safety
and Health Administration. https://www.osha.gov/news/newsreleases/region8/08262021
OSH 3302, Legal Aspects of Safety and Health
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UNIT x STUDY GUIDE
Unit Lesson
Title
Introduction
In Unit V, we spent a lot of time talking about the purpose of requesting an informal conference after receiving
the Notice of Penalties and Citations from the Occupational Safety and Health Administration (OSHA) and the
rules of the conference. In this unit, we are going to discuss the steps that can be taken after the informal
conference if a settlement cannot be reached.
Contesting Citations
If a settlement cannot be reached during the informal conference, the employer can formally contest the
citations and penalties. As we have stated several times in this course, the Notice of Contest must be filed
within 15-working days after the receipt of the citations and penalties. Generally, if a Notice of Contest is not
filed within the 15-working day period, the citations and penalties become final. Once an employer files a
Notice of Contest, informal conferences cannot be scheduled. If an employer asks for an informal conference
at the same time or after filing a Notice of Contest, the employer will be notified that the informal conference
cannot be scheduled unless the formal Notice of Contest is withdrawn. This is the reason it is important for an
employer to schedule an informal conference and leave adequate time to file a Notice of Contest after the
informal conference. If an employer submits a Notice of Contest after the 15-working day period, the area
director will send a notice to the employer stating that the notice cannot be accepted and explain the process
for filing the late notice to the Occupational Safety and Health Review Commission (OSHRC).
Occupational Safety and Health Review Commission (OSHRC)
The OSHRC was created with the passage of the Occupational Safety and Health (OSH) Act to provide
employers with a method to obtain a fair and timely response to contests of citations and penalties. In order to
make the process fair, the OSHRC is an independent agency, not related to the Department of Labor where
OSHA resides. This independence is important in making sure OSHA is honest in their dealings with
employers. Contested cases are assigned to and presided over by administrative law judges (ALJs).
States who have established a state-run OSHA program will have their own OSHRC. For example, Kentucky
has an approved state OSHA program. Contested citations and penalties are heard by the Kentucky OSHRC
(KOSHRC), which is an independent agency established by state law KRS 338.071 (KOSHRC, n.d.).
Contested citations and penalties issued by Kentucky OSHA are heard by ALJs from the KOSHRC instead of
the OSHRC. The rules of law, however, are the same.
Rules of the Hearing
The rules of law associated with hearings are similar to other administrative cases. Unlike the informal
conference, during the formal contest of citations, each side is allowed to discover what evidence the other
side has by asking them to produce documents, send questions to the other side (called interrogatories), and
conduct depositions of potential witnesses. Depositions are a process during which potential witnesses for
one side can be asked questions related to the case while under oath. Depositions are very common,
especially if one or both sides are using expert witnesses. The deposition allows attorneys for each side to
OSH 3302, Legal Aspects of Safety and Health
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evaluate the strength of the other side’s case. In some instances, settlement agreements
are reached
UNIT x STUDY
GUIDE after
the depositions and prior to a formal hearing.
Title
The ALJ will hold a formal hearing if an agreement is not reached. The hearing will be scheduled in a location
close to where the citations and penalties were issued. The rules of the hearing are similar to the rules in
other administrative courts. Witnesses are sworn in, a transcript is recorded by a court reporter, and a
representative for both sides (typically an attorney) has the ability to question each witness. The ALJ may
exclude testimony based on the rules of law. For example, the Daubert test is sometimes used to exclude the
testimony of a witness. The Daubert test says that if an expert is rendering an opinion, he or she must be
qualified by knowledge, skill, experience, training, or education, and the opinion must meet certain criteria.
The testimony must be based on sufficient facts or data. The testimony has to be based on reliable accepted
scientific principles. The witness has to apply the scientific principles reliably to the facts of the case (Daubert
v. Merrell Dow Pharmaceuticals, 1993). One purpose of the Daubert test was to keep what is considered junk
science out of the court proceedings. Therefore, opinions have to meet the criteria of current scientific
knowledge and testing, peer review, and be considered acceptable in the scientific community. Some tests
performed by so-called experts that are not accepted practice in the field are generally not allowed to be
presented in court. An example would be a safety and health expert who develops his or her own sampling
and analytical method that has not been validated using OSHA or NIOSH criteria and is not widely accepted
by other safety and health professionals. The results of sampling using that method would typically not be
allowed in the OSHRC proceedings.
Types of Hearings
The OSHRC has two types of hearings available, the full hearing or a simplified proceeding. The full hearing
is what was discussed above. For smaller, less complicated cases, the ALJ may use simplified proceedings.
Simplified proceedings are used for cases with less than $20,000 to $30,000 in total aggregate penalties.
Simplified proceedings cannot be used if there are willful or repeat citations or if a fatality has occurred. The
main differences between the full hearing and the simplified proceedings are that there are no pleadings and
no discovery, including depositions. OSHA is required to provide the employer with certain documents within
12 to 30 days after the case has been designated, depending on the type of document (OSHRC, 2010a). The
hearings are also less formal, and the ALJ will sometimes render an opinion at the end of the hearing instead
of days or weeks later as is common with formal hearings. The decisions of the ALJ in both full and simplified
proceedings become final 30 days after the decision is published.
Decisions
The decisions of an ALJ may or may not be reviewed by the entire OSHRC. The chief ALJ chooses some
opinions to review without any request. However, OSHA, the employer, or an employee may also request a
review of a decision. The party must file a petition for discretionary review with the ALJ or the executive
secretary of the OSHRC. The OSHRC will typically request each party to file a brief explaining their position
OSH 3302, Legal Aspects of Safety and Health
3
on the decision (OSHRC, 2010b). The OSHRC may also request that each party
present
some
oral
UNIT
x STUDY
GUIDE
arguments in front of the commission. If the OSHRC reviews a decision, the decision
Title may be changed or
totally vacated. If the OSHRC issues a decision, the ruling becomes final 60 days after being issued. Even
that decision is not the final step. Due process allows any of the parties to appeal the decision of the OSHRC.
An appeal of an OSHRC would be heard by the U.S. Circuit Court of Appeals. The decision of the U.S. Circuit
Court of Appeals becomes final when it is issued.
The OSHRC publishes decisions reached by ALJs and reviews by the OSHRC. State OSHRCs will also
publish decisions by ALJs and the state OSHRCs on their websites.
Conclusion
As you can see, the OSHA inspection process can be rather lengthy. There are many steps an employer can
take once receiving the Notice of Citations and Penalties. One important thing to remember is timing is key! It
is important to submit the required documentation in the designated amount of time.
References
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).
Kentucky Occupational Safety and Health Review Commission. (n.d.). KOSH Review Commission.
https://koshrc.ky.gov/Pages/index.aspx
Occupational Safety and Health Review Commission. (n.d.) Decisions. https://www.oshrc.gov/decisions/
Occupational Safety and Health Review Commission. (2010a). Subpart M — simplified proceedings.
https://www.oshrc.gov/rules/subpart-m-simplified-proceedings/
Occupational Safety and Health Review Commission. (2010b). Subpart F — posthearing procedures.
https://www.oshrc.gov/rules/subpart-f-posthearing-procedures/
Suggested Unit Resources
In order to access the following resources, click the links below.
This standard provides additional information on the powers of the administrative law judge.
Administrative Law Judge; Powers and Duties. 29 U.S.C. § 1955.12, (1970). Occupational Safety and Health
Administration.
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=11216
This standard provides procedures for the OSHA Review Commission.
Purpose, 29 CFR § 2200.200. (1970). Occupational Safety and Health Administration.
https://www.osha.gov/laws-regs/regulations/standardnumber/2200/2200.200
The following links provide additional information on the Occupational Safety and Health Review Commission.
Occupational Safety and Health Administration. (n.d.). SEC. 12: The Occupational Safety and Health Review
Commission. https://www.osha.gov/laws-regs/oshact/section_123366
Occupational Safety and Health Administration. (n.d.). Settlement procedure, 29 CFR § 2200.120. U.S.
Department of Labor.
https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=11457
OSH 3302, Legal Aspects of Safety and Health
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