The OSHA Appeal Process
When OSHA Knocks On Your Door
Employers are reminded that OSHA compliance officials (industrial hygienists, safety engineers, etc.) possess specific law enforcement powers. They are not quite like your cop on the beat who can arrest you and take you to jail, but they can and do obtain search warrants, seek complaints from the local District Attorney, and testify against you in front of the OSHA Appeals Board, or the criminal court trial.
Therefore, you should exercise extreme caution whenever an OSHA official appears at your work-site. This is even more important if an employee injury or death, or employee safety complaint is the reason OSHA is knocking. The following steps outline a basic procedure that you can follow if these officials do show up and discover some OSHA Violations.
Know the Process. Review these steps with your managers and supervisors. Remember, statements made to OSHA by ANY member of your company can and will be used against the company and/or its officers or agents in an enforcement action.
a) Targeted Industry: you are in a targeted industry such as underground construction, petrochemical refining, general construction or power press operations.
b) Safety Complaint: someone (most likely an employee) called OSHA and made a safety complaint against your company;
c) Employee Injury or Death: one of your employees was recently injured or killed (that’s why it is so important to notify OSHA in the specified time if a serious injury or fatality occurs; your local emergency services notifies OSHA when they respond if the event is work related so OSHA is waiting for your call!). In California, you are required to notify OSHA within eight hours of learning of a serious accident.
Ask to see the inspectors identification and record his or her particulars.
Attempt to determine:
a) the reason for the visit,
b) the anticipated scope and duration of the visit,
c) whether records will be reviewed,
d) whether employees will be interviewed in private.
Contact your legal department immediately and the person named as the “most responsible party” in your IIPP. If the visit involves an employee injury or death, or OSHA has cited you within the past three years for ANY violation, you should consider contacting an adviser immediately.
Notify union representatives Under OSHA, union representatives (among others) have a right to be present during the OSHA visit. Moreover, if you have collective bargaining groups, OSHA will probably not begin the formal process (the Opening Conference) until the union is notified and accepts or declines the invitation to attend.
Actively participate in the opening conference
a) Attempt to learn the purpose and scope of the visit or inspection.
b) Determine what the order of the inspection will be.
c) Lay out rules for the inspection, including the safety rules that will be applied.
d) Determine how confidential data or trade secrets will be handled.
e) Outline the procedure for asking and answering questions during the visit.
f) Determine the process for staging confidential interviews.
g) Attempt to schedule the Closing Conference.
Conduct the inspection. Literally, shadow the inspector. If the inspector takes a picture, you take a picture of the same thing. If the inspector enters a room, you enter the room. If the inspector studies something and makes a written note, you look at the object and make a written note of what you observed.
Actively participate in the closing conference
a) Discuss any and all findings of the visit.
b) Request a verbal report from the inspector of any violations that require immediate correction.
c) Ask the inspector directly if he or she is planning to issue a citation; if so, for what specific violations.
d) Determine the time for the next step in the process, including the specified “abatement” period which must be strictly adhered to.
a) A “Notice of No Violation” is received. This means that the inspector determined that the reason for the visit was not substantiated for the specific item the inspector was looking for: i.e., an employee safety complaint that the employer did not have an IIPP when, in fact, the employer had an IIPP and all employees had been properly trained about the IIPP, including the complaining employee.
b) One or more citations arrives in the mail. Because of their format, a citation is not all that easy to decipher. Generally, though, the citation will provide a specific OSHA regulation section violated: i.e., 8 CCR 5194; its classification: i.e., Serious, Willful, etc.; and a brief description: i.e., 8 CCR 5194 requires employers to provide an SDS to employees upon demand but employer was unable to provide an SDS for the methlethylbadstuff in a 5-gallon glass container in Room 47. If any of the violations are classified as Serious, Willful, or Repeat, or an employee injury or death was involved, the employer should seriously consider retaining specialized advisory counsel to represent its interests in the process.
c) The local District Attorney’s Office notifies the employer that a criminal complaint has been filed against it. While these are rare for most OSHA violations, if a serious employee injury or death was involved, the employer should seriously consider retaining specialized legal counsel to represent its interests because of the unique nature of the action, and because media problems, workers’ compensation and possible civil actions will probably all have to be correlated with the criminal case.
The appeals process – Because the overwhelming majority of OSHA actions are Administrative in nature, the Occupational Safety and Health Appeals Board has been established for employers to contest their citations. Somewhat more relaxed than the federal process, Appeals Board Administrative Law Judges hear cases and decide whether the citations should stand or be dismissed or reduced.
In summary, while OSHA officials are genial, professional people they are also government officials with specific law enforcement powers. Their findings can significantly impact your company’s financial health and expose company officials to personal and professional civil and criminal liability.
Do not take an OSHA visit lightly – Knowing the OSHA regulations that apply to your operations, maintaining a safe workplace, and knowing how to respond to an OSHA visit can literally mean the difference between a “Notice of No Violation” and criminal prosecution, especially under harsh new sanctions imposed by California’s AB 1127 which became effective on January 1, 2000.
Regulatory, General, Serious, Repeat, Willful
Regulatory – Pertains to a Title 8 permit, posting, reporting or recordkeeping requirement and is not classified as General or Serious.
General – Has a relationship to occupational safety and health but is specifically determined not to be of a serious nature.
Serious – A substantial probability that death or serious physical harm could result from a violation, including, but not limited to, circumstances where there is a substantial probability that either of the following could result in death or great bodily injury:
1. A serious exposure exceeding an established permissible exposure limit, or,
2. A condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in the place of employment.
The term “substantial probability” refers not to the probability that an accident or exposure will occur as a result of the violation, but rather to the probability that death or serious physical harm will result, assuming an accident or exposure occurs as a result of the violation.
Employer’s knowledge can be accomplished via Actual or Constructive knowledge. Special Serious violations include carcinogen and tower cranes.
Repeat – Employer has corrected or indicated a correction of a violation for which a citation was previously issued but upon later inspection employer is found to have committed a violation of the same Title 8 Safety Order section again within a period of three (3) years immediately proceeding the former violation.
Fixed Establishments: limited to the cited establishment
No Fixed Establishment: prior violations within the same Region of the Division.
Willful – Employer committed an intentional and knowing (as contrasted with inadvertent) violation and is conscious of the fact that what he is doing constitutes a violation of a safety law; or employer was not consciously violating a safety law but was aware that an unsafe or hazardous condition existed and made no reasonable effort to, general or serious. eliminate the condition. Willful violations shall be further classified as willful regulatory
Serious Violations Except where another penalty is specifically provided, every employer and every officer, management official, or supervisor having direction, management, control, or custody of any employment, place of employment, or of any other employee, who does any of the following is guilty of a misdemeanor.
(a) Knowingly or negligently violates any standard, order, or special order, or any provision of this division, or of any part thereof in, or authorized by, or
(b) Repeatedly violates any standard, order, or special order, or provision of this division, or any part thereof in, or authorized by, this part, or,
(c) Fails or refuses to comply, after notification and expiration of any abatement period, with any such standard, order, special order, or provision of this division, or any part thereof, or,
(d) Directly or indirectly, knowingly induces another to commit any of the acts in sub- divisions (a), (b), or (c).
Any violation of subdivision (a) is punishable by imprisonment in the county jail for a period not to exceed six months, or by a fine not to exceed five thousand dollars ($5,000), or by both that imprisonment and fine. Any violation of the provisions of subdivision (b), (c), or (d) of this section is punishable by imprisonment in a county jail for a term not exceeding one year, or by a fine not exceeding fifteen thousand dollars ($15,000), or by both that imprisonment and fine. If the defendant is a corporation or a limited liability company, the fine may not exceed one hundred fifty thousand dollars ($150,000).
In determining the amount of fine to impose under this section, the court shall consider all relevant circumstances, including, but not limited to, the nature, circumstance, extent, and gravity of the violation, any prior history of violations by the defendant, the ability of the defendant to pay, and any other matters the court determines the interests of justice require.
Willful Violations Any employer and any employee having direction, management, control, or custody of any employment, place of employment, or of any other employee, who willfully violates any occupational safety or health standard, order, or special order, or Section 25910 of the Health and Safety Code, and that violation caused death to any employee, or caused permanent or prolonged impairment of the body of any employee, is guilty of a public offense and is punishable by imprisonment in a county jail for a term not exceeding one year, or by a fine not exceeding one hundred thousand dollars ($100,000), or by both that imprisonment and fine; or by imprisonment in the state prison for 16 months, or two or three years, or by a fine of not more than two hundred fifty thousand dollars ($250,000), or by both that imprisonment and fine; and in either case. if the defendant is a corporation or a limited liability company, the fine may not exceed one million five hundred thousand dollars ($1,500,000).
If the conviction is for a violation committed within seven years after a conviction under subdivision (b), (c), or (d) of Section 6423 or subdivision (c) of Section 6430, punishment shall be by imprisonment in state prison for a term of 16 months, two, or three years, or by a fine not exceeding two hundred fifty thousand dollars ($250,000), or by both that fine and imprisonment, but if the defendant is a corporation or limited liability company, the fine may not be less than five hundred thousand dollars ($500,000) or more than two million five hundred thousand dollars ($2,500,000).
Repeat Violations If the conviction is for a violation committed within seven years after a first conviction of the defendant for any crime involving a violation of subdivision (a), punishment shall be by imprisonment in the state prison for two, three, or four years, or by a fine not exceeding two hundred fifty thousand dollars ($250,000), or by both that fine and imprisonment, but if the defendant is a corporation or a limited liability company, the fine shall not be less than one million dollars ($1,000,000) but may not exceed three million five hundred thousand dollars ($3,500,000).
In determining the amount of fine to be imposed under this section, the court shall consider all relevant circumstances, including, but not limited to, the nature, circumstance, extent, and gravity of the violation, any prior history of violations by the defendant, the ability of the defendant to pay, and any other matters the court determines the interests of justice require.
As used in this section, “willfully” has the same definition as it has in Section 7 of the Penal Code. This subdivision is intended to be a codification of existing law. This section does not prohibit a prosecution under Section 192 of the Penal Code.
False Statements Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this division shall, upon conviction, be punished by a fine of not more than seventy thousand dollars ($70,000), or by imprisonment for not more than six months, or by both.
Manslaughter – Manslaughter is the unlawful killing of a human being without malice. There are several kinds: Voluntary–upon a sudden quarrel or heat of passion which is punishable by imprisonment in the state prison for three, six, or eleven years; Involuntary, –the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection and is punishable by imprisonment in the state prison for two, three, or four years.
Corporate Criminal Liability Act of 1989 – Any corporation, limited liability company, or person who is a manager with respect to a product, facility, equipment, process, place of employment, or business practice is guilty of a public offense punishable by imprisonment in the county jail for a term not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both that fine and imprisonment; or by imprisonment in the state prison for 16 months, two, or three years, or by a fine not exceeding twenty-five thousand dollars $25,000); or by both that fine and imprisonment, but if the defendant is a corporation or a limited liability company the fine shall not exceed one million dollars ($1,000,000), if that corporation, limited liability company, or person does ALL of the following:
– Has actual knowledge of a serious concealed danger that is subject to the [regulatory authority] of an appropriate agency and is associated with that product or a component of that product or business practice.
– Knowingly fails during the period ending 15 days after the actual knowledge is acquired, or if there is imminent risk of great bodily harm or death, immediately, to do both of the following: 1) Inform OSHA, in writing, unless actual knowledge that OSHA informed; and 2) Warn affected employees in writing, unless actual knowledge that employees have been warned.
Informal Conferences with the OSHA District Manager
When the citation arrives in the mail, you have 15 calendar days to file an appeal with OSHAB. Between the date of arrival of the citation and the 15 days until the expiration of the appeal period, you are legally entitled to as many Informal Conferences with the District Manager (DM) as you desire to argue your side of the story. However, your argument MUST be based on one or more of the following:
1) The existence of the violation; or
2) The classification assigned to the violation (General, Serious, etc); or
3) How the proposed penalty was calculated.
Occupational Safety and Health Appeals Board (OSHAB) Basis of Appeal
Next, when you file the appeal between Day 1 and Day 15 of the appeal period, the specific reason must be stated for the specific violation you are appealing (these are even listed on the State form). The ONLY authorized grounds for Appeal are:
1) The existence of the violations alleged; or
2) The classification of the alleged violation (General, Serious, etc.); or
3) The amount of the penalties proposed; or
4) The time allotted to abate (fix) the violative condition; or
5) Specific conditions required for abatement.
In the alternative, you may raise the affirmative defense of Employee Independent Act (the most commonly raised defense), Logical Time, or some other defense such as lack of jurisdiction, non-employee, etc. This defense must meet five stringent tests and is a very difficult defense to affirm.
Petition for Reconsideration
Next, if the ALJ rules against you at hearing, you are legally entitled to ask the full Board to reconsider the ALJ’s decision by filing a Petition for Reconsideration. The ONLY legitimate grounds for reconsideration are:
1) The ALJ exceeded or acted without authority; or
2) The ALJ’s decision was procured by fraud (an intentional perversion of truth); or
3) The evidence submitted doesn’t support the findings of facts; or
4) The findings of facts don’t support the ALJ’s decision; or,
5) New evidence was discovered after the hearing that was not available for the hearing even though due diligence was used to gather all the evidence before the hearing.
Writ of Mandate
If the OSHAB rules against you, you can file a Writ of Mandate at the Superior Court. A writ of mandate (legally, mandamus) asks a “higher” court to restore the rights or privileges you were denied by the “lower” court. A lawyer here is highly recommended. These are the only grounds on which to appeal an OSHA enforcement action.