Please respond to the following
Employers have various options after receiving the citations and notification of penalties. What are your thoughts on the various options employers can take? In your opinion, what do you believe is the best approach an employer should take when contesting citations? Explain your reasoning.
UNIT IV STUDY GUIDE
Employer Rights and Responsibilities
Course Learning Outcomes for Unit IV
Upon completion of this unit, students should be able to:
6. Examine affirmative defenses used in legal proceedings.
6.1 Explain an employers options to contest OSHA citations and penalties.
6.2 Describe the process or procedures for contesting OSHA citations or penalties.
6.3 Examine abatement plans and the certification process.
Course/Unit
Learning Outcomes
6.1
6.2
6.3
Learning Activity
Unit Lesson
Chapter 7
Unit IV Assessment
Unit Lesson
Chapter 7
Unit IV Assessment
Unit Lesson
Chapter 7
Unit IV Assessment
Required Unit Resources
This unit will use chapters 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 7: Post-Citation Procedures and Abatement Verification
Unit Lesson
Introduction
In Unit III, we spent a lot of time discussing the types of Occupational Safety and Health Administration
(OSHA) violations and the penalties associated with each type. OSHAs penalty structure is designed to
provide an incentive for preventing or correcting violations voluntarily. In this unit, we are going to discuss
employee rights after an OSHA inspection as well as the steps employers can take to contest the citations.
Employee Rights After OSHA Inspection
When an Occupational Safety and Health Administration (OSHA) inspection results in citations and penalties,
employers can react in many different ways, including disbelief, anger, and confusion about what is required.
There are some specific requirements that all employers must follow, and some options that are available
under the OSH Act. Employees also have some rights after the inspection is complete and citations and
penalties have been issued. Many discussions about what can be done after an inspection has been
completed are limited to employers, and the rights of employees are not considered.
OSH 3302, Legal Aspects of Safety and Health
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The OSHA inspection process is supposed to be transparent to employees. The
employer
is required
UNIT
x STUDY
GUIDE to
inform employees about OSHA citations and penalties. In order to accomplishTitle
this requirement, the employer
is required to post any citations that were issued by OSHA. OSHA requires the citations to be posted in or
near the location where the violation(s) occurred and must remain posted for at least 3 days or until the
violation(s) have been abated, whichever is longer. This may be impractical for employees who travel to other
locations to perform work, such as with construction workers. In those cases, the employer must post the
citation(s) in an area where employees report each day prior to going to work sites or a common area from
which employees work. An example would be posting the citation(s) at a work trailer at a construction site.
Posting of Citations
Some employers believe that they do not have to post the citation notice if they are going to contest the
citations; however, the citation notice is required to be posted whether or not the employer is going to contest
the citations. Employers can be further cited and penalized if they fail to post a copy of the original citations.
The employer is allowed to post a notice of the control methods they intend to implement to abate any
citations. The employer is also required to post any abatement certification documents, abatement plans,
progress reports, and a notice of an informal conference made by the employer to OSHA concerning the
citations. The posting of these documents is required so employees can send representatives to informal
conferences and to respond to any proposed abatement methods proposed by the employer. As you can see,
OSHA places a priority on keeping employees informed about citations and employers actions to abate
violations.
Contesting Citations
The OSH Act provides both employers and employees with certain rights after the completion of an
inspection. These rights are designed to ensure that both the employer and employee have the ability to
contest citations and penalties that they believe are unfair. There are several processes available ranging
from informal discussions to formal legal proceedings.
The employer may decide to simply accept and abate all the citations and pay the proposed
penalties. If the employer chooses this option, he or she must complete the abatement prior to the
abatement date specified in the Notice of Citations and Penalties and pay the penalty(ies).
Employers may file a formal Notice of Contest for some or all of the citations and penalties. A formal
Notice of Contest must be filed with the area director by the 15th working day after the citations and
penalties have been received from OSHA. Formal notices can be sent by electronic means or regular
mail. Simply calling the area director and informing them that you intend to formally contest the
citations and penalties is inadequate.
The employer can also schedule an informal conference with the area director. During the informal
conference, the compliance officer is required to notify the employer of the ability to contest citations.
Informal Conference
Employers may choose to have the informal conference for various reasons, including:
The employer believes the citations and penalties were too harsh.
The employer does not understand some part of the citation or penalty.
The employer provides additional information about their health and safety program to the area
director that may mitigate the severity of the citations and penalties.
In some cases, the area director may agree to reduce the severity and/or amount of the penalty(ies) because
of information provided at the informal conference. If this occurs, an informal settlement agreement may be
reached and further litigation avoided. In order to avoid what might be considered back-alley deals between
the area director and employers, employees or their representatives have the right to participate in any
informal conference. This is the reason a notice of an informal conference must be posted in or near the area
where citations occurred.
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Many health and safety experts recommend that an employer always request UNIT
an informal
conference
x STUDY
GUIDE after
citations and penalties are issued. This recommendation is typically made because
Title informal conferences
cannot result in additional citations and fines but may result in a reduction in the severity of citations and a
reduction in penalties. There are more potential positive outcomes than negative outcomes. However,
employers must remember that the informal conference does not delay the 15 working days that the employer
has to file a Notice of Contest. Therefore, the employer must schedule the informal conference early enough
to allow time to file a Notice of Contest, if necessary. If the employer does not file a Notice of Contest within
15 working days, the citation becomes a final order. This means that the area director can no longer change
the seriousness of citations or the penalties because they have become final orders (OSHA, 2020).
The ability of the employer or employee to formally contest citations, penalties, and abatement dates is
extremely important for ensuring due process is provided. The contest process means the employer or
employee does not have to accept the views of the compliance officer(s) and the area director without any
ability to defend themselves or challenge what is perceived as an inadequate response or an overreaction to
an employee complaint. An employer or employee does not have to contest every citation and penalty. In fact,
in most cases, only a portion of the citations and penalties are challenged. The Notice of Contest that is filed
with the area director must state which part(s) of the citations and penalties the employer is contesting. Once
a formal notice to contest is filed, the case is in litigation, and the area director cannot take any additional
actions until the case is heard by an administrative law judge (ALJ) assigned to the case.
Administrative Law Judge
There are many federal agencies that use ALJs. The ALJs that hear contested OSHA citations are from the
Occupational Safety and Health Review Commission (OSHRC). The OSHRC was created along with OSHA
after the OSH Act was passed. The OSHRC is an independent organization, separate from OSHA and the
Department of Labor. This separation was by design to make sure there is no undue influence over the
OSHRC. This helps ensure the hearings are impartial.
Citation and Notification of Penalty
The Citation and Notification of Penalty document will specify state abatement dates for each citation. The
dates are set by the compliance officer performing the inspection based on his/her best estimate of the time
required to complete the abatement. Employers have the right to formally petition for an extended abatement
date if they believe they will not be able to meet the original date (OSHA, 2020).
Abatement Certification
The final document OSHA requires for citations is abatement certification. Abatement certification is required
for all citations that have become final orders, except quick-fix items that were corrected during the inspection.
The Citation and Notification of Penalty will typically specify which violations require additional certification.
The area director may require an abatement plan to be submitted for some violations, especially if the
abatement is complicated or may take an extended period of time. The area director may also require the
abatement plan to include interim measures to protect employees during the extended abatement process. If
an abatement plan is required, the employer may be required to periodically submit progress reports.
Conclusion
In this units discussion, we discussed employee rights after an OSHA inspection. This unit also covered
steps the employer must take after receiving the citations and notification of penalties, such as posting the
citations and contesting citations. An informal conference is a great way discuss additional information with
the area director and get clarification on any citations that are not fully understood.
Reference
Occupational Safety and Health Administration. (2020). Field operations manual. U.S. Department of Labor.
https://www.osha.gov/enforcement/directives/cpl-02-00-164
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Suggested Unit Resources
UNIT x STUDY GUIDE
Title
In order to access the following resources, click the links below.
If you are interested in exploring the topic of employer rights and responsibilities further, review the resource
below.
Occupational Safety and Health Administration. (n.d.). Employer rights and responsibilities following a federal
OSHA inspection. U.S. Department of Labor. https://www.osha.gov/Publications/osha3000.pdf
The standard below provides additional information on the requirements for requesting modifications to
abatement dates.
Occupational Safety and Health Administration. (1975). Petitions for modification of abatement date. U.S.
Department of Labor. https://www.osha.gov/laws-regs/regulations/standardnumber/1903/1903.14a
The standard below provides additional requirements for employers for posting OSHA citations.
Occupational Safety and Health Administration. (2016). Inspections, citations, and proposed penalties:
Posting of citations. U.S. Department of Labor. https://www.osha.gov/lawsregs/regulations/standardnumber/1903/1903.16
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