Responding to OSHA Citations: Appealing

Posted August 13, 2017

An OSHA inspector visited, and you received one or more citations; what happens now?

Citations, which are mailed from the OSHA area director shortly after an inspection takes place, will indicate the fine assessed and the abatement period for correcting the health or safety violation. Fines are assessed at four levels, and violations will not be grouped—each one will be fined separately. Violation classifications include the following:

• Other than serious violation—up to $7,000
• Serious violation—up to $7,000
• Repeated violation—up to $70,000
• Willful violation—$5,000 – $70,000

Should I Contest an OSHA Violation?

When you know you violated an OSHA standard in the workplace and would not be able to present evidence to suggest otherwise, it is probably best to pay the fine. However, if you believe you have evidence to defend your business’ safety and health standards, you may want to contest the citation. You can contest a citation for any or all of these reasons:

• You do not believe a safety or health order was truly violated
• You feel the violation was improperly classified (e.g., classified as willful, but should be serious)
• You do not think the abatement requirements were reasonable
• You do not think OSHA allowed sufficient time to complete abatement requirements
• You believe the penalty assigned to the violation was unreasonable

When you are unsure whether to take action to contest the citation or simply pay the fine, it can be difficult to decide which will be more complex and costly. It is also important to remember that your request to appeal must be in good faith; that is, OSHA will not consider requests filed solely to avoid responsibility or monetary payment. It may help to consider these factors when faced with a citation:

• The strength of the citation: Consider whether OSHA has enough evidence to prove its case and whether you have enough evidence to prove it wrong. You will likely need photographic documentation of your practices and the support/testimony of your employees.
• Abatement requirements and their associated costs: Do not simply accept a citation because the fine is small and you think it will be easier than contesting. Abatement costs can often be staggering, so find out how much you will have to pay on top of the penalty fees. If this cost is high, take a serious look at whether or not the citation was just.
• The potential fine: Understand how fines are assessed so you can argue the degree of fairness used to determine this amount. It might not be the best business decision in the long run to accept a fine just because it seems insignificant to your company at the time.
• The potential for collateral litigation: If you accept the citation, you could also face other legal consequences. Third-party lawsuits, such as those brought about by engineers and property owners, are a common side effect of workplace accidents. Also, if you are cited for a willful violation, some states offer double compensation for subjected employees. If the citation is not just, it might not be worth the potential legal risks.
• The potential for repeat violations: According to OSHA, a violation can be cited as repeated if the employer has been cited for the same or a “substantially similar” violation anywhere in the nation within the past three years. That means if you have a plant or worksite thousands of miles away from the original citation that violates a similar standard, you will receive a repeat violation. These violations can carry fines up to $70,000; think about whether you want to risk letting this first claim slide because you don’t want to go through the hassle of contesting it.
• Possible impact on labor relations: If labor unions believe you did something wrong—which you are admitting to by not contesting an OSHA violation—you could face an unfavorable relationship with your employees.
• Undesirable effect on reputation or competitive position: No matter how small the penalty seems, your business could be adversely affected by much more than just the cost of paying the fine. If word gets out that your business practices are unhealthy or unsafe, your competitors may gain a market advantage.

OSHA emphasizes on its website that penalties for other-than-serious violations could be reduced by as much as 95 percent for an employer with good faith. They also say that serious violations can be adjusted down for employers with good safety practices and a solid background when it comes to OSHA standards and violations. Remember that when deciding whether or not to contest, you may find that your past record helps you and that the appeal never requires a hearing because OSHA is willing to settle. OSHA wants to avoid lengthy legal battles as much as you do.

What Happens After Appealing?

If decide that it would be within your business’s best interest to contest alleged OSHA violations, you must file an appeal within 15 working days of receiving the citation. Appeal forms are available at www.osha.gov, and only appeals recorded in writing are accepted. If you file after the 15-day period, your citation becomes final order and it will not be subject to review.

The case will be forwarded to the Occupational Safety and Health Review Commission, which is an independent agency that is not associated with OSHA or the Department of Labor, and therefore is not bound by any terms of the original citation. Nothing will happen until your case is docketed, meaning it is assigned a case number and an Administrative Law Judge (ALJ). You may not receive your docketed appeal packet for several months after your decision to contest the citation. Your case will then be settled in one of two ways:

1. You may reach a settlement in a pre-hearing conference. This conference will be your best opportunity to dispute the citation without having to go through a formal hearing. If there is still a dispute after you speak with the OSHA area director about your citations, the judge will join the conference to mediate and try to reach a resolution.
2. You may go through a formal hearing process if neither party is willing to compromise and reach a settlement beforehand. However, be aware that since the ALJ is not connected with the DOL, he or she could reverse the OSHA citation or could find additional penalties or violations apart from the original citation. Be cautious when presenting evidence and facts to support your case—the ALJ could catch something the OSHA officer did not, costing you more money. If the decision is reversed in your favor, you can petition to have the costs of the hearing covered as well.

Fortunately for employers, both options are likely to result in fine reductions or removal. According to an analysis by Risk Management Magazine, informal conferences typically result in an average penalty reduction of 49 percent, and about 7 percent are removed entirely.

While there are clear benefits to requesting an informal conference or formally contesting any citations, employers should make sure they go into these meetings prepared. By presenting a compelling case, there is a good chance any penalties can be reduced or completely removed from the record.

Options After a Lost Contestation

If the decision in the formal hearing does not go your way but you still believe the OSHA citation was unjust, you also have the option to appeal the initial hearing. You must file for reconsideration within 35 days of receiving the written decision from the ALJ. In order to be granted a reconsideration hearing, your appeal must be based on your belief in one or more of the following:

• The ALJ acted in excess of his or her powers
• The decision was procured by fraud
• The evidence presented did not justify the finding
• You discovered new material evidence that could not have been produced at the time of the hearing
• The findings do not support the decision

Contesting a Granted Abatement Period

Employers that think the OSHA area director did not grant enough time to fix safety or health issues that lead to a citation are able to file a Petition for Modification of Abatement (PMA). Unlike an appeal of an OSHA citation, you can file a PMA with your OSHA area director even after the 15-day contest period has expired. Simply submit a written statement (including the steps you have taken to correct the problem), additional time you need to fix it and why, steps you will take in the meantime to keep employees safe, and evidence that the citation was posted in the workplace. The PMA will then be granted or denied by the OSHA area director. If granted, be aware that monitoring OSHA inspections may occur in the meantime. If denied, your citation automatically becomes a contested case and you should refer to the above sections.

Note that though these guidelines apply to most employers across the country, the appeals process in states with their own OSHA-approved plans may have a slightly different system for review of appeals, penalties and abatement periods. Before contesting your OSHA citation, be aware of the specific laws in your state.