Robert G. Chadwick, Jr., Partner, Freeman Mathis & Gary, LLP.

Following receipt of an OSHA citation, an employer has only a short period – 15 workings days – to contest the citation.  If not timely contested, the citation and proposed penalties become a final order of the Occupational Safety & Health Review Commission (“OSHRC”) and may not be reviewed by any court or agency.

There can be valid reasons for not timely contesting a citation.  For example, it may be determined that the time and expense of a contest outweighs any potential benefit.

There also can be valid reasons for contesting a citation.  Under certain circumstances, litigating before the OSHRC may be preferable to acceptance of a citation or settlement at the informal settlement conference. Only by reviewing these reasons with legal counsel can a truly informed decision be made as to how to respond.

No Violation Occurred

OSHA generally has the burden of proving that a violation of the Occupational Safety & Health Act occurred. If this burden likely cannot be met, or the evidence shows that no violation occurred, a notice of contest may be worthy of consideration.

Wrong Category of Violation Cited

For a willful violation, OSHA has a higher burden of proof than for a serious or other-than-serious violation.  For a serious violation, OSHA has a higher burden than for another-than-serious violation.  If the applicable burden likely cannot be met for the category cited, a notice of contest may be worth exploration.

Availability of Affirmative Defense

Just as with other civil litigation, there are certain procedural and substantive affirmative defenses to OSHA violations.  The burden of proving an affirmative defense lies with the employer.  If this burden can likely be met as to a violation, a notice of contest may be worth evaluating.

Proposed Penalty Amount is Significant

Where the citation proposes a significant or egregious violation penalty, the financial stakes may be sufficiently high to warrant an analysis of the risks and benefits of a notice of contest.

Costly Abatement

Where the citation mandates a costly abatement, or an abatement which requires business disruption, the financial stakes may again be sufficiently high to assess the options of a notice of contest.

Settlement Options

Settlement of a citation is generally an option both before a notice of contest is filed and after a notice of contest is filed.  If informal settlement is not a viable option before the applicable deadline, a notice of contest may be necessary to preserve settlement as an option.  In other circumstances, it may be worthwhile to compare the settlement opportunities before a notice of contest with the settlement opportunities after a notice of contest.

Risk of Repeat OSHA Citations

Previous citations can be cited by OSHA as a basis for later willful or repeat violations. Previous citations may also form the basis for later egregious violations, or inclusion in OSHA’s Severe Violator Enforcement Program.  A citation which places an employer in OSHA’s Severe Violator Program increases the frequency of inspections, and thus the likelihood of future citations.  Under certain circumstances, therefore, the risk of future OSHA inspections and citations can be a consideration favoring a notice of contest.

Future Potential Civil Liability

State laws vary significantly as to the admissibility and relevance of OSHA citations in personal injury litigation.  If such litigation is possible, the admissibility and relevance of the OSHA citation may in certain states weigh in favor of a notice of contest.

Reputation in the Industry

For many businesses, a reputation for safety in the workplace is an asset worth fighting to protect.  An OSHA citation may be the basis for the loss of ongoing business relationships or the loss of future business relationships. Inclusion in OSHA’s Severe Violator Enforcement Program can be especially damaging. Depending upon the circumstances, a notice of contest may be worthwhile to protect the business’ reputation.

Increased Worker’s Compensation Insurance Premiums

Several states have statutes which authorize an increase in workers’ compensation insurance premiums based on safety and health violations.  An increase in worker’s compensation insurance premiums may be a reason to contest an OSHA citation.

Not all OSHA citations are worth contesting.  In consultation with legal counsel, the prudent decision may be to accept the citation or reach a settlement with OSHA at the informal settlement conference.  Unless the reasons for contesting an OSHA citation are fully considered, however, the employer risks an uninformed decision which may later come back to haunt it.

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