The company does not have to comply with any contested part of the citation - fix the hazard, for example, - until its appeal is considered and a final decision is issued, unless it is an imminent danger situation. If it is just contesting the penalty, it must abate. An Administrative Law Judge employed by the Review Commission, will hold a hearing on the appeal and make a decision. An OSHA attorney will represent the agency and oppose any employer appeal.
The Formal Appeal: What You Can Do You can participate fully in the hearings on the company's appeal of the citation, but to do so you must write a letter to the Review Commission informing them of your desire to "elect party status," or participate in the case.
It is very important to do this, and do it as soon as your employer files its formal challenge. Actively participating in the case gives you the opportunity to argue against employer efforts to lengthen the abatement period or reduce the severity of its violation. You can even push for more severe sanctions. Your views will be seriously considered, and if the employer knows you will participate, they may even think twice before contesting.
The union, as the "authorized employee representative," can declare party status, or, if there is no union, any worker exposed to the hazards in the complaint can elect party status "on behalf of affected employees.
With party status you:. Even with party status, don't assume that you will be completely included without further action on your part. Contact the area director and the Review Commission attorney and tell them you want to fully participate.
Remember, too, that the vast majority of cases are settled prior to a formal hearing. Make sure the OSHA attorney knows what you want out of the negotiations and be prepared to argue for your position during the negotiations. This is called abatement, and the citation identifies a date by which the employer must abate each hazard. Employers are responsible for fixing the hazard, certifying to OSHA that they have done so, and informing workers and their Union about this.
In some cases, OSHA requires additional documentation, including written abatement plans, progress reports, and proof of abatement, such as pictures or work orders. Unless the abatement period is contested, your employer must take steps to correct the hazard. Even if management fails to contest an abatement date, it can still delay fixing the problem. This posting must remain for three working days or until the violation is corrected, whichever is longer.
There are also a number of factors that an employer can argue in an effort to reduce their given penalty. Deciding to contest an OSHA citation can make sense in plenty of instances, but is it the right choice for you? Here are six situations where you should consider contesting a penalty. This may seem odd, but remember that the burden to prove a violation occurred rests on OSHA, not the employer. That cannot always happen.
In this case, it would be wise for the employer to contest the penalty. When reviewing your citation and the corresponding penalty, be sure to note which category the penalty falls under. However, in , the U. If you receive a citation for something that seems possible to happen again, it may be best to try and fight the penalty. For many of us, a reputation of safety is incredibly important, both in attracting workers and in maintaining customer relations.
An OSHA citation , especially any given in the more severe penalty categories, can be far more damaging than the time and money it may take to contest the fines. In some cases, the monetary cost of doing what is required to correct the cited issue, known as abatement , can be great. If this cost will be too much, or if business will be disrupted while trying to implement the needed controls, you should consider filing to contest the citation.
If this is a risk to your organization, it may be wise to avoid accepting the OSHA citation. Keep in mind, this list is not exhaustive, and you should always request an informal conference with your area director first, as you may be able to reduce your fines for various reasons.
OSHA penalties can be costly, and the process of contesting a penalty can be lengthy, so here are a few actions you can take to create a safe working environment and hopefully avoid having to spend both time and money on an OSHA issue. Is there any risk of collateral litigation?
Employers must be aware of how the law works in every state where they conduct business. However, third-party lawsuits e. Some states impose heightened damages against employers in connection with workplace accidents. Under this statute, the employer — not his or her insurer if any — must pay the extra compensation. How does the citation affect your workforce?
When deciding whether or not to proceed with a challenge, you must also consider how the process will affect your relationship with your employees, and particularly with organized labor if your company handles jobs and projects in a unionized state. Contesting OSHA citations could have a variety of indirect impacts on your workforce that are difficult to anticipate. As is true for any good relationship, communication is key.
Feel free to contact me if you have any questions or concerns about how to respond to an OSHA citation. About the Author: James Laboe. Print this entry. You failed to comply with the cited standard. Workers were exposed to a hazardous condition. As an employer who has been cited, you may either: Agree to the citation, correct the condition by the date set in the citation and pay the penalty, if one is proposed.
Disagree with the citation. Extension of abatement dates. Deletion of citations. Reclassification of citations. Clarification of abatement procedures or alleged violations. A public relations opportunity with the area director. The discovery of more facts to ascertain whether to contest the citation. To show good faith, you must have: Implemented a comprehensive workplace safety program, including a worksite analysis for the purpose of hazard identification, and hazard prevention and control measures.
Conducted the required safety training. Maintained up-to-date, accurate records. Enforced safety rules consistently, and have the disciplinary records to back up that claim. Risk Management. You have successfully saved this page as a bookmark. OK My Bookmarks. Please confirm that you want to proceed with deleting bookmark. Delete Cancel.
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