Seyfarth Synopsis: The 15-day statutory deadline to contest federal OSHA citations has been the subject of recent litigation in the 5th and 11th Circuits and before the Occupational Safety and Health Review Commission. In those cases, after having their contests to the citations dismissed for failure to contest by the statutory deadline or failure to satisfy court deadlines, employers have asked for a second look, citing confusion, miscommunication, and staffing-related issues. During a global pandemic, the risk of such issues arising and causing missed deadlines is exacerbated. While the courts and the Commission might exhibit some additional leeway, employers in pending inspections or OSHA-related litigation should take steps now to ensure critical deadlines are not missed.
After receiving a citation from federal OSHA, an employer has 15 working days from receipt of the Citation and Notification of Penalty to file a written Notice of Contest to the citations. 29 U.S.C. § 659(a). We have previously blogged on this very important topic. See Fifth Circuit Provides New Grounds for Employers to Pursue Late Notices of Contest to OSHA Citations, and Don’t Be Late — Review Commission Law Judge Finds Notice of Contest Filed Late Was Inexcusable Neglect. Failure to contest the citations, without excusable neglect, can result in the citations becoming a final order. And even after filing a Notice of Contest, failure to meet court deadlines can result in default judgment being entered against the employer and the Notice of Contest being dismissed.
Recently, however, some employers have received reprieve in cases in which they missed deadlines. For example, in Secretary of Labor v. Arch-Tech Construction, an employer missed several deadlines and telephonic conferences with the OSHRC administrative law judge during the early months of the pandemic, and the ALJ dismissed the employer’s Notice of Contest as a consequence. The employer asked the Commission to review, averring confusion over the virus-related shutdown of courts in Massachusetts in March and miscommunication between the business owner and Department of Labor attorneys led the owner to believe OSHA had dropped the citations or legal actions were on hold.
The Commission agreed that it was appropriate for the ALJ to “impose the sanction of default for Respondent’s repeated failure to participate in Commission proceedings.” However, as the Commission noted, “[i]t is well established . . . that the Commission favors deciding cases on their merits, and the circumstances alleged in Respondent’s petition for discretionary review—namely, those surrounding the ongoing COVID-19 pandemic, the owner’s apparent confusion as to who should be contacted to ascertain the status of the case, and the alleged failure of the Regional Solicitor’s office to respond to the Respondent’s telephone calls—warrant remanding to the judge for him to consider these proffered reasons for Respondent’s failure to participate in these proceedings.” (internal quotations omitted).
In another recent case, PetSmart v. Secretary of Labor, the employer got a second chance in an appeal filed two-and-a-half years after the citation was delivered to a Vero Beach, Florida, store in October 2017. The ALJ initially rejected PetSmart’s late appeal, but all three Commission members in a remand order vacated the ALJ decision and sent the appeal back for reconsideration. PetSmart claims its Phoenix-based managers weren’t aware of the 2017 Vero Beach citation until a debt collection agency contacted corporate headquarters earlier this year, and that OSHA should have sent the citation and penalty notice to PetSmart’s Phoenix office. PetSmart also says its corporate safety manager in 2017 had requested OSHA refer all questions to company headquarters. “Under these circumstances,” explained the Commission, “we find that an opportunity for the parties to present evidence is warranted.”
These two recent orders from the Commission might signal a preference that cases be decided on merits, rather than procedural default, when possible. This could have greater import during the COVID-19 pandemic, during which time OSHA and the Commission may have to make additional allowances for slow responses that can be attributed to virus-related issues.
Still, employers involved in ongoing OSHA inspections and litigation can take steps now to mitigate against the risk of default and other procedural issues, particularly during the pandemic, including:
- Confirming with OSHA representatives during the inspection the specific address where citations should be sent if issued;
- Confirming during the inspection the contact information of the OSHA inspector(s) and Area Office (phone, fax, and email);
- Recording when citation documents are received and calculating the Notice of Contest deadline immediately;
- Confirming with the Area Office the specific address where the Notice of Contest should be sent, and considering sending the Notice of Contest via fax and/or email to the Area Office;
- Ensuring the correct contact information of the lead employer representative(s) are listed in the Notice of Contest;
- After filing a Notice of Contest, monitor for emails from attorney(s) with the Department of Labor; and
- Calendaring deadlines from the ALJ’s pre-trial schedule order.
For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Workplace Safety and Health (OSHA/MSHA) Team.