Challenging citations

An employer, an employee or an authorized employee representative can file a “notice of contest” within 15 working days after a citation is issued. This is done with a simple one page notice - it is not a complex pleading.

Employers can challenge any aspect of the citation. At least one employer’s lawyer has told me that she considers the citation an equivalent to a criminal indictment: that is, it is the first step in the process, and employers should feel no obligation to accept the conclusion of the OSHA staff. In contrast, the rights of employees and their representatives to challenge the citation are very limited: if the employer does not challenge the citation, employees can only challenge the abatement period – the time allowed for correcting the violation. If the employer does challenge, however, the employees’ representative may seek party status in the proceedings that will follow. 

As described above in Chapter 1, if a notice of contest is filed, the agency will immediately forward it to the Occupational Safety and Health Review Commission (OSHRC). In cases before the Commission, OSHA has the burden of proving the validity of the citation. The hearing is presided over by an administrative law judge, who has broad authority to affirm, modify or vacate any aspect of the citation. The Office of the Solicitor of DOL is responsible for putting on the case for the agency.^[1]This includes filing a formal complaint, based on the citation. DOL/SOL lawyers in the region where the citation is issued will present the case before the ALJ, and will continue to represent OSHA on appeals.[2]

As also described in Chapter 1: Once the ALJ hears the case, his or her recommendation then automatically goes before the OSHRC. An aggrieved party may file a petition for discretionary review, asking that the ALJ's decision be reviewed, but even without a petition any Commission member may direct review of any part or all of the ALJ's decision. If the Commission considers the case, a new decision will be issued. If, however, no member of the Commission directs review within 30 days, the decision of the ALJ is final. Any appeal from an OSHRC order goes to the U.S. court of appeals for the circuit in which the violation is alleged to have occurred or to the District of Columbia Circuit. 

To state the obvious:  When you read cases such as those below in which OSHA has cited an employer, you are reading a post-inspection case. The cases you read regarding standard setting (the Benzene Case, the Cotton Dust case, and the Air Contaminants case) all involved challenges to standards. The cases below all follow an enforcement action by OSHA, an administrative decision, and an appeal of that decision to a federal court of appeals. These cases are brought under the judicial review provisions of Section 11(a) of the Act.

In the cases below, employers have challenged citations issued by OSHA and have taken the litigation through the administrative process and to an appellate court for review. The first two cases involve violations of specific standards; the next cases involve challenges to general duty citations. As you read these cases, pay attention to the different burdens that the Secretary has to prove cases involving violations of standards and violations of the general duty clause. Particularly if you have not yet taken Administrative Law – think about the role of the court in reviewing the decisions of the agency. Also think about the strategic decisions that were made by employers regarding the litigation of the claims.

FOOTNOTES

[1] The Department of Labor is organized so that the Solicitor of Labor and the Deputy Secretary of Labor both report to the Secretary.  Under the Solicitor of Labor are lawyers (“solicitors”) assigned to each agency in Washington D.C.  In addition, the SOL offices are divided into regions, and each regional office has a Regional Solicitor of Labor. The lawyers in the regional offices handle all of the litigation associated with all of the Department of Labor agencies.  Thus, while in Washington D.C. a lawyer assigned to OSHA will handle only OSHA matters, in the regional office the lawyers may handle issues that arise under the OSH Act, FLSA, ERISA, MSH Act, and so on.

[2] They also handle the whistleblower cases under Section 11(c) of the OSH Act, which prohibits retaliation against workers who raise complaints.  We will be looking more closely at 11(c) later in the course when we investigate the rights of individual workers.