BOS 3525, Legal Aspects of Safety and Health 1
Course Learning Outcomes for Unit VI
Upon completion of this unit, students should be able to:
1. Assess Occupational Safety and Health Administration (OSHA) rulemaking, enforcement, and adjudication processes.
1.1 Describe the process used to request and present a case before an administrative law judge.
1.2 Describe how a formal hearing differs from an informal conference.
1.3 Describe the discovery process of a formal hearing.
7. Examine affirmative defenses used to contest alleged violations.
7.1 Discuss the results that may be achieved in a formal hearing.
7.2 Summarize the information that may be presented during a formal hearing.
7.3 Discuss which parties are allowed to attend formal hearing.
Course/Unit Learning Outcomes
Learning Activity
1.1
Required Reading, Assignment
1.2
Required Reading, Assignment
1.3
Required Reading, Assignment
7.1
Required Reading, Assignment
7.2
Required Reading, Assignment
7.3
Required Reading, Assignment
Reading Assignment
OSHA’s Field Operations Manual (FOM): Click here to access a PDF document of the FOM.
Chapter 15: Legal Issues
In order to access the following resource, click the link below:
Occupational Safety and Health Administration. (2016). Field operations manual. Retrieved from https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-160.pdf
Unit Lesson
If an informal settlement cannot be reached during or after the informal conference, an employer has an additional option available. The employer can formally contest the citations and penalties. Although many employers choose to not take this step, a review of Occupational Safety and Health Administration (OSHA) databases for 2012 show that employers are able to obtain significant reductions by formally challenging penalties. Kramer (2014) analyzed the data and found that employers who chose to formally contest the citations received an average reduction of 58%, and 17% were completely removed. This is a higher percentage for both categories than was achieved through the informal conference. The Occupational Safety and Health Review Commission (OSHRC) was not involved when Kramer (2014) reported his results. When the OSHRC became involved in a formal contest, more than one-third of the citations were totally dismissed (Kramer, 2014).
As we have stated several times in this course, the Notice of Contest must be filed within 15-working days after the receipt of the citations and penalties. Generally, if a Notice of Contest is not filed within the 15-
UNIT VI STUDY GUIDE
Adjudicating OSHA Citations
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working day period, the citations and penalties become final. Once an employer files a Notice of Contest, informal conferences cannot be scheduled. If an employer asks for an informal conference at the same time or after filing a Notice of Contest, the employer will be notified that the informal conference cannot be scheduled unless the formal Notice of Contest is withdrawn. This is the reason it is important for an employer to schedule an informal conference and leave adequate time to file a Notice of Contest after the informal conference. If an employer submits a Notice of Contest after the 15-working day period, the area director will send a notice to the employer stating that the notice cannot be accepted and explain the process for filing the late notice to the OSHRC.
The OSHRC was created with the passage of the Occupational Safety and Health (OSH) Act to provide employers with a method to obtain a fair and timely response to contests of citations and penalties. In order to make the process fair, the OSHRC is an independent agency, not related to the Department of Labor where OSHA resides. This independence is important in making sure OSHA is honest in their dealings with employers. Contested cases are assigned to and presided over by administrative law judges (ALJs).
The OSHRC has three offices located in Washington D.C., Denver, and Atlanta. The chief administrative law judge is located in the Washington D.C. office, along with four ALJs. The Denver office has a first administrative law judge, along with three additional ALJs. The Atlanta office also has a first administrative law judge, but only two additional ALJs (OSHRC, 2015). When a Notice to Contest is received, the case is assigned to an ALJ at the location closest to the place where the citations and penalties were issued.
States who have established a state-run OSHA program will have their own OSHRC. For example, Kentucky has an approved state OSHA program. Contested citations and penalties are heard by the Kentucky OSHRC (KOSHRC), which is an independent agency established by state law KRS 338.071 (KOSHRC, 2015). Contested citations and penalties issued by Kentucky OSHA are heard by ALJs from the KOSHRC instead of the OSHRC. The rules of law, however, are the same.
The rues of law associated with hearings are similar to other administrative cases. Unlike the informal conference, during the formal contest of citations, each side is allowed to discover what evidence the other side has by asking them to produce documents, send questions to the other side (called interrogatories), and conduct depositions of potential witnesses. Depositions are a process during which potential witnesses for one side can be asked questions related to the case while under oath. Depositions are very common, especially if one or both sides are using expert witnesses. The deposition allows attorneys for each side to evaluate the strength of the other side’s case. In some instances, settlement agreements are reached after the depositions and prior to a formal hearing.
The ALJ will hold a formal hearing if an agreement is not reached. The hearing will be scheduled in a location close to where the citations and penalties were issued. The rules of the hearing are similar to the rules in other administrative courts. Witnesses are sworn in, a transcript is recorded by a court reporter, and a representative for both sides (typically an attorney) has the ability to question each witness. The ALJ may exclude testimony based on the rules of law. For example, the Daubert test is sometimes used to exclude the testimony of a witness. The Daubert test says that if an expert is rendering an opinion, he or she must be qualified by knowledge, skill, experience, training, or education, and the opinion must meet certain criteria. The testimony must be based on sufficient facts or data. The testimony has to be based on reliable accepted scientific principles. The witness has to apply the scientific principles reliably to the facts of the case (Daubert v.Merrell Dow Pharmaceuticals, 1993). One purpose of the Daubert test was to keep what is considered “junk science” out of the court proceedings. Therefore, opinions have to meet the criteria of current scientific knowledge and testing, peer review, and be considered acceptable in the scientific community. Some tests performed by so-called “experts” that are not accepted practice in the field are generally not allowed to be presented in court. An example would be a safety and health “expert” who develops his or her own sampling and analytical method that has not been validated using OSHA or NIOSH criteria and is not widely accepted by other safety and health professionals. The results of sampling using that method would typically not be allowed in the OSHRC proceedings. This has occurred many times in cases involving exposures to fungal spores and mycotoxins (mold) because most of the sampling and analytical methods for mold spores and mycotoxins have not been validated, and there has not been a general consensus among mold experts concerning the methods. However, each ALJ would make a decision of the admissibility on the data based on his or her understanding of the rules of law.
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The OSHRC has two types of hearings available. The full hearing is what was discussed above. For smaller, less complicated cases, the ALJ may use simplified proceedings. Simplified proceedings are used for cases with less than $20,000 to $30,000 in total aggregate penalties. Simplified proceedings cannot be used if there are willful or repeat citations or if a fatality has occurred. The main differences between the full hearing and the simplified proceedings are that there are no pleadings and no discovery, including depositions. OSHA is required to provide the employer with certain documents within 12 to 30 days after the case has been designated, depending on the type of document (OSHRC, 2010a). The hearings are also less formal, and the ALJ will sometimes render an opinion at the end of the hearing instead of days or weeks later as is common with formal hearings. The decisions of the ALJ in both full and simplified proceedings become final 30 days after the decision is published.
The decisions of an ALJ may or may not be reviewed by the entire OSHRC. The chief ALJ chooses some opinions to review without any request. However, OSHA, the employer, or an employee may also request a review of a decision. The party must file a petition for discretionary review with the ALJ or the Executive Secretary of the OSHRC. The OSHRC will typically request each party to file a brief explaining their position on the decision (OSHRC, 2010b). The OSHRC may also request that each party present some oral arguments in front of the commission. If the OSHRC reviews a decision, the decision may be changed or totally vacated. If the OSHRC issues a decision, the ruling becomes final 60 days after being issued. Even that decision is not the final step. Due process allows any of the parties to appeal the decision of the OSHRC. An appeal of an OSHRC would be heard by the U.S. Circuit Court of Appeals. The decision of the U.S. Circuit Court of Appeals becomes final when it is issued.
The OSHRC publishes decisions reached by ALJs and reviews by the OSHRC at http://www.oshrc.gov/decisions/index.html. State OSHRCs will also publish decisions by ALJs and the state OSHRCs on their websites.
References
Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed. 2d 469, (1993).
Kentucky Occupational Safety and Health Review Commission. (2015). KOSH Review Commission. Retrieved from http://www.koshrc.ky.gov/Pages/KOSHRCHome.aspx
Kramer, W. (2014, February). Is it a safe bet to challenge OSHA? Risk Management Magazine. Retrieved from http://www.rmmagazine.com/2014/02/01/is-it-a-safe-bet-to-challenge-osha/
Occupational Safety and Health Review Commission. (2010a). Subpart M — simplified proceedings. Retrieved from http://www.oshrc.gov/procrules/2200subm.html
Occupational Safety and Health Review Commission. (2010b). Subpart F — post-hearing procedures. Retrieved from http://www.oshrc.gov/procrules/2200subf.html
Occupational Safety and Health Review Commission. (2015). The U.S. Occupational Safety and Health Review Commission organizational chart. Retrieved from http://www.oshrc.gov/about/Org_Chart.pdf
Suggested Reading
In order to access the following resources, click the links below:
Occupational Safety and Health Administration. (n.d.). Administrative law judge; powers and duties. Retrieved from https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=11216
Occupational Safety and Health Administration. (n.d.). OSHA Review Commission: Simplified proceedings, 29 CFR § 2200.200. Retrieved from https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=11458
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Occupational Safety and Health Administration. (n.d.). SEC. 12: The Occupational Safety and Health Review Commission. Retrieved from https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=OSHACT&p_id=3366
Occupational Safety and Health Administration. (n.d.). Settlement procedure, 29 CFR § 2200.120. Retrieved from https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=11457
Learning Activities (Nongraded)
Nongraded Learning Activities are provided to aid students in their course of study. You do not have to submit them. If you have questions, contact your instructor for further guidance and information.
The OSHRC publishes decisions by administrative law judges and the full OSHRC on their website:
http://www.oshrc.gov/decisions/index.html
Search the website for some recent decisions. What types of cases are typically reviewed by the OSHRC? Are the majority of the decisions that are reviewed by the OSHRC upheld, changed, or vacated? Do you detect any pattern to decisions that are changed by the OSHRC?
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