OSHA Citations may be Contested

By Vernon Howerton.

Say an OSHA inspector arrives at your jobsite unannounced. The inspector does not initially note his presence, tours the site alone and finds your laborer, who has received trench-safety training, retrieving a dropped thermos from the bottom of a 9 ft. deep, flat-walled trench.

The spoil is 6 in. from the edge of the trench with no cave-in protection. The employee is observed using a 10 ft. ladder to enter the trench. Your superintendent is onsite, eating his lunch 50 ft. away. The violator is in plain view, but the superintendent-busy studying a safety manual-does not see the employee enter the trench.

After photographing the scene, the inspector approaches the superintendent, flashes his OSHA identification and announces that a citation will be issued. A month later, a citation arrives, alleging three serious violations and one repeat violation, and you feel the citation is unfair. Now what?

Employers must inform the OSHA area director within 15 working days of receipt of a citation of the intent to contest the citation. Absent a timely notice of contest, the citation becomes a final order of the OSHA review commission.

Applicable regulations provide the citation recipient with an opportunity to have an informal conference to discuss the citation including its merits, the amount of the penalties and potential defenses. Often, conferences result in an offer of settlement from OSHA with lesser penalties and/or reclassification of one or more violations. An informal conference may be held before or after the notice of contest is filed.

In the event that no settlement is reached during an informal conference, the area director may refer a contested citation to the office of the solicitor. The solicitor then files a "complaint" on behalf of the secretary of labor before the review commission.
Once the case is filed, the OSHRC assigns an administrative law judge to hear the case. Generally, the case proceeds either under the normal track or under "EZ Trial."

Under the normal track, the employer must file a written "answer" to the complaint. The answer must include any affirmative defenses, such as employee misconduct, greater hazard and such. Both the employer and OSHA then have the opportunity to take discovery of the others' evidence including photographs and other reports. Depositions may be taken.

Under the EZ Trial procedure, (not an option with every case) no answer is filed and OSHA must automatically disclose certain materials. After the close of the discovery period, the judge will hold an evidentiary hearing akin to a trial.

Cases heard under EZ Trial are less formal than those heard under the normal procedure. Ultimately, the judge issues an opinion that is subject to examination by the review commission.

Obviously, if the case goes to trial and the employer wins, there is no violation and no penalty. Less obvious is the fact that many cases settle while the case is pending.
OSHA inspectors and area personnel are charged with the task of implementing OSHA policies to achieve workplace safety. In doing so, some citations may push or exceed the limits of the applicable regulations.

Since the solicitor's attorney will actually have to try the case, that attorney may take a more objective view than the inspector's. This often produces a greater opportunity for settlement on terms acceptable to the employer than were available at the informal conference stage.

Back to the worker and the thermos in the ditch. We settled a similar case for a single, "other-than-serious" violation based on a number of factors. For one, the OSHA inspector did not follow proper procedures.

In addition, the worker removed safety equipment while on a break and entered the trench without the employer's knowledge. The worker was properly trained and subsequently disciplined for violating a work-safety rule. This gave us an unpreventable employee-misconduct defense.

Also aiding our defense was the fact that trench shields were available for use under the project's trench-safety plan. We also discovered a case where the review commission had found that the top of an excavation is not considered a landing for purposes of the regulation requiring ladders to extend past the top of the landing.

Finally, the prior violation used to support the allegation of repeat violation was not sufficiently factually analogous.