Legal Aspects of Safety and Health
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OSH 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.
Reading Assignment OSHA’s Field Operations Manual (FOM): Chapter 15: Legal Issues Occupational Safety and Health Administration. (2011). Field Operations Manual. Retrieved from
https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-159.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. As we have stated several times in this course, the Notice to Contest must be filed within 15 working days after the receipt of the citations and penalties. Generally, if a Notice to Contest is not filed within the 15 working day period, the citations and penalties become final. There is a process to file a Notice to Contest after the 15 working day period, but the late notice has to be filed with the Occupational Safety and Health Review Commission (OSHRC) instead of the Occupational Safety and Health Administration (OSHA). The OSHRC was created with the passage of the 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. 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 location where the citations and penalties were issued. States who have established a state run OSHA program will have their own OSHRC. For example, the State of Kentucky has an approved state OSHA program. Contested citations and penalties are heard by Kentucky OSHRC (KOSHRC) which is an independent agency established by state law KRS 338.071 (KOSHRC, 2015). Contested citations and penalties issued by KY 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. Each side is allowed to
UNIT VI STUDY GUIDE
Adjudicating OSHA Citations
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“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 where 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. However, each ALJ would make a decision of the admissibility of the data based on his or her understanding of the rules of law. 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. 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 at the start of the process (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 an ALJ may or may not be reviewed by the entire OSHRC. The chief ALJ chooses some opinions to review without any request. 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 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. 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 one of the Circuit Courts. 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 Occupational Safety and Health Review Commission. (2010a). Subpart M -- simplified proceedings. Retrieved
from Occupational http://www.oshrc.gov/procrules/2200subm.html
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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 If you are interested in learning more about the Occupational Safety and Health Review Commission, review the resources 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
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 (Non-Graded) 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