OSHA INSPECTION PROCESS - Part 5            (Archived Content: 2002)

Contesting a Citation?

HERE’S HOW!

Now wait a minute....do I have 15 or 30 days to file a notice of contest? And which is it, calendar or working days? If you sometimes find the legal intricacies of OSHA citations confusing, use the following:

-Once the inspection is completed, OSHA has 6 months to issue a citation. Make sure mail handling procedures are established so that the proper person receives any citations promptly and record its date and time of arrival.

-After the citation is received, 15 working days are allotted for filing a notice of contest. The employer must notify affected employees and their union, if any, of filing. The employer must request an informal conference during this time and such a request does not stop the 15-day clock from running.

-Mail or hand deliver any notice of contest to the OSHA area director. If mailed, send it certified mail - return receipt request to determine when OSHA received it. OSHA has 7 calendar days from receipt of the notice of contest to forward it to the Occupational Safety and Health Review Commission, which then assigns the case to one of its administrative law judges.

Within 20 calendar days of receiving a notice on contest, the Labor Department’s Solicitor’s Office must file a complaint detailing the legal proceedings up to that point, listing the reasons for issuing the citation and the reasonableness of all abatement dates and penalties.

1. In turn, the employer or their counsel must file an answer within 15 calendar days of receiving the Labor Department’s complaint. This answer should spell out the employer’s defense, and also include a denial of any and all allegations made against the employer. Any procedural questions, such as the reasonable promptness in issuing the citation or the statute of limitations of filing the complaint, should be attached as procedural motions.
2. A pre-hearing conference is then held before the administrative law judge assigned the case, at which time arguments are heard on voluntary and formal discovery, possible settlements, any procedural motions and union involvement in the case.
3. After agreements have been hammered out on these points, a formal hearing is held, at which time OSHA has the burden of proof to show through a preponderance of evidence that the alleged violations did, in fact, exist.
4. The resulting decision may be brought before the Review Commission within 30 days of its issuance. The Commission’s review process is discretionary - that is, they don’t have to grant an appeal request from either an employer or OSHA. Conversely, any member of the Commission can call a case up for review, even if neither party requested it.
5. If the employer wishes, a Review Commission decision can be taken to the Federal Courts.