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Editor’s Note - In this article "OSHA" and "OSHA Compliance Officer" refer to the Federal OSHA. Your state may have its own state-approved OSHA programs and these guidelines may vary slightly.

Previous issues of Besser Block discussed OSHA in general and what occurs during an OSHA inspection. This issue discusses the OSHA citation, appeal and settlement processes.

Part 1 of 3: All About OSHA

Part 2 of 3: The OSHA Inspection

OSHA Citations

After the compliance officer reports the findings from his/her visit to your facility, the OSHA area director determines if citations will be issued and if penalties will be proposed.

Citations indicate the alleged regulations and standards violated and the proposed length of time set for abatement. The employer receives citations and notices of proposed penalties by certified mail. The employer must post a copy of each citation at or near the place where a violation occurred, for three days or until the violation is abated, whichever is longer.

The Appeal Process

1. Abatement Period - When a citation is issued, a date is set by which the OSHA violation must be corrected. The citation specifies the abatement date.
   
   
2. Appeals by Employees - If an inspection was initiated due to an employee complaint, the employee or an authorized employee representative may request an informal review of an OSHA decision NOT to issue a citation. However, employees MAY NOT contest citations, amendments to citation, penalties or lack of penalties. Also, employees may request an informal conference with OSHA to discuss issues raised by an inspection, citation, notice of proposed penalty or employer’s Notice of Contest.
   
   
3. Appeals by Employers
   
   a. Request for Informal Hearing - When issued a citation, notice or proposed penalty, an employer may request an informal meeting with the OSHA area director to discuss the case. The informal hearing should take place within the 15 working day contest period discussed later in this article. Employee representatives may be invited to attend the meeting. The OSHA area director is authorized to enter into settlement agreements that revise citations and penalties to avoid prolonged legal disputes.
   
   
   b. Petition for Modification of Abatement - Upon receiving a citation, the employer must correct the cited hazard by the prescribed date unless he or she contests the citation or abatement date. If the abatement cannot be accomplished within the prescribed time, an employer can file a Petition for Modification of Abatement (PMA). The PMA must be filed in writing with the OSHA area director who originally issued the citation by the working day following the abatement date.  
   
   
   A PMA should specify all steps taken to achieve compliance to date, the additional time needed to achieve complete compliance, the reason(s) additional time is needed, and steps being taken to safeguard employees against the cited hazard during the intervening period. Also, the employer must state that a copy of the PMA was posted in a conspicuous place at or near each place where a violation has occurred and that the employee representative (if there is one) has received a copy of the petition.
   
   
   c. Notice of Contest - If an employer decides to contest either the citation, the time set for abatement, or the proposed penalty, he/she has 15 working days from the time the citation and proposed penalty are received in which to notify the OSHA area director. The Notice of Contest MUST be in writing. There is no special format for the Notice of Contest however, it must identify the employer’s reason for contesting the citation, notice of proposed penalty, abatement period, or notification of failure to correct violations. 
   
   
   A copy of the Notice of Contest must be given to the employee representative. If affected employees are not represented by a recognized bargaining agent, a copy of the notice must be posted in a prominent location in the workplace or given personally to each unrepresented employee.

OSHA Review Procedure

If the written Notice of Contest has been filed within the required 15 working days, the OSHA area director forwards the case to the Occupational Safety and Health Review Commission (OSHRC). The commission is an independent agency not associated with OSHA or the Department of Labor. The Commission assigns the case to an administrative law judge.

The judge may disallow the contest if it is found to be legally invalid or a hearing may be scheduled at a public place near the employer’s location. The employer and the employees have the right to participate in the hearing. Although not required, having an attorney present may be advisable.

Once the administrative law judge has ruled, any party to the case may request further review by OSHRC. An OSHRC commissioner may also bring a case for review.

Appeals in State Plans

States with their own occupational safety and health programs have a system to review and appeal citations, penalties and abatement periods. The procedures are generally similar to those of the Federal OSHA. However, a state review board or equivalent authority hears cases. If you are located in a state with a state plan, familiarize yourself with the appeal process in that state.

Settlement of Cases

1. OSHA area directors have guidelines to negotiate settlement agreements, except for in extreme cases, or cases
   which affect other jurisdictions:
   
   a. The area director can enter into a Formal Settlement Agreement after the employer has filed a written Notice of Contest.
   
   b. Area directors are authorized to change abatement dates, to reclassify violations (e.g. willful to serious, serious to other-than-serious) and to modify or withdraw a penalty, a citation or citation item if the employer presents evidence during the informal conference which convinces the area director that the changes are justified.
   
   
2. Pre-Contest Settlements (Informal Settlement Agreements) occur during or immediately following the informal conference and prior to the completion of the 15 working day contest period. If a settlement is reached during the informal conference, an Informal Settlement Agreement is prepared and the employer representative is invited to sign it. The settlement becomes effective once signed by the area director and the employer representative.
   
   
3. Post-Contest Settlements (Formal Settlement Agreements) occur before the complaint is filed with the Review Commission. After an employer files a Notice of Contest, the area director notifies the regional solicitor if a settlement with the employer is forthcoming.
   
   
4. Corporate-Wide Settlements can be entered into under special circumstances. In these settlements, the employer formally recognizes cited hazards and accepts the obligation to seek out and abate those hazards throughout all workplaces under the employer’s control.
   

Conclusion

Above all, remember that the compliance officer is at your facility because there is a question (whether unfounded or not) about the safety of your employees. The objective is to cooperate with the compliance officer to create a safe place for your employees to work. If unsafe conditions exist, the ideal goal is to rectify the unsafe conditions with minimal or no penalty imposed on your company.

Resources:
State or regional OSHA offices - contact OSHA at (202) 693-1999 for help finding the correct office to contact.

References:
Occupational Safety and Health Administration (OSHA) web site: www.osha.gov. 

Types of Violations and Potential Penalties

	Other than Serious Violation A violation that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm. OSHA can impose a penalty of up to US $7,000 for this category of violation, which can be adjusted downward by as much as 95% based on the employer’s good faith efforts to comply with standards, history of previous violations and size of business.
	Serious Violation A violation where there is a substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard. A mandatory penalty of up to US $7,000 for each violation is proposed, which can be adjusted as described above.
	Willful Violation A violation that the employer knowingly commits or commits with plain indifference to the law. The employer either knows that what he or she is doing constitutes a violation or is aware that a hazardous condition existed and made no reasonable effort to eliminate it. Penalties of up to US $70,000 may be proposed for each willful violation with a minimum penalty of US $5,000 for each violation. A proposed penalty for this type of violation can be adjusted downward depending on the size of the business and the history of previous violations. Typically no credit is given for good faith.
	Repeated Violation A violation that is substantially similar to a violation for which the employer has previously been issued a citation. The fine for this type of violation can be up to US $70,000 and will not normally be adjusted.
	Failure to Abate Prior Violation Failure to abate a prior violation may bring a civil penalty of up to US $7,000 for each day the violation continues beyond the prescribed abatement date.
	De Minimis Violation A violation of a standard which has no direct or immediate relationship to safety or health. These violations are documented the same way as other violations, but no citation is issued.