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April 12, 2019
Procedures for contesting OSHA citations changing

Many employers will have to electronically file challenges to OSHA citations under a new set of legal procedures published April 10.

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Those with attorneys or nonattorney representatives must use the Occupational Safety and Health Review Commission’s electronic filing system to file contests to OSHA citations. Changes to the review commission’s procedures published in the Federal Register take effect June 10 and apply to all cases filed on or after that date.

Exemption for those representing themselves

The commission considered making e-filing mandatory for all parties but decided to give parties representing themselves the option of filing documents through conventional means. However, once a party uses the E-File system, all subsequent documents must be filed electronically.

Out of concern for employers that represent themselves, the review commission also addressed the problem of employers that fail to contest OSHA citations within 15 working days.

Under extraordinary circumstances, cited employers, affected employees, or their representative labor unions can file a request for relief from final orders through federal civil procedures. They can file a request for relief with the review commission’s executive secretary.

Plain language changes

Some revisions include the use of plain language, eliminating words like “herein,” “therein,” and “thereafter.” References to “paper” are changed to “document” and apply to conventionally and electronically filed documents.

Other clarifications include:

  • References to “mail,” “United States Mail,” and “U.S. Mail” now consistently refer to “U.S. Mail”;
  • Gender-specific pronouns have been dropped for gender-neutral language;
  • References to “unrepresented parties” have been changed to “self-represented parties” to recognize parties represented in review commission proceedings by one of their officers or managers; and
  • The definition of “authorized employee representative” has been revised to specify that it means a labor organization representing affected employees who are members of the collective bargaining unit.

To eliminate confusion, all rules about time periods count “days” as calendar days. Review commission procedures previously counted working days for time periods shorter than 11 days and calendar days for time periods longer than 11 days.

‘Abandoned’ proceedings

The new rules also clarify the consequences of failing to appear at a hearing. If the Secretary of Labor or Labor Department (DOL) representatives fail to appear, the commission considers the proceedings abandoned. If employers or their representatives fail to appear at a hearing, the commission will decide the employers have admitted to the facts submitted by the DOL and find for the Labor Department.

The review commission also raised the threshold for cases that must be assigned to mandatory settlement proceedings. If an employer contests citations for which OSHA is seeking total penalties of $185,000 or more, the case is assigned to mandatory settlement. The settlement judge has wide discretion in the confidential settlement proceedings. If no settlement among the parties can be reached, then the case is assigned to an administrative law judge for regular proceedings.

The commission last updated its procedures in 2005. The review commission announced September 7, 2018, it was considering changes to its procedural rules and received comments from the DOL and other interested parties. Most of the changes reflect current review commission practice.

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