The Informal Conference: To Settle or Not To Settle
An important right upon receipt of an OSHA citation is to request an informal conference with the OSHA area director. Notably, an informal conference must be held within 15 working days of your receipt of the citation. (This is the same deadline as for contesting the citation. It is also important to keep in mind that requesting and/or appearing at an informal conference will not extend the time you have to contest the citation.)
Informal conferences are popular and may be extremely useful because they present an opportunity at an early stage of the process to negotiate a penalty reduction, extension of abatement dates, deletion of violations, and/or reclassification of violations. Reclassification of a violation to a less severe violation can impact not only on the amount you currently pay in penalties, but also on any future penalties. For example, if you later receive another citation for the same initial violation, you will not receive a “repeat” violation (which could cause higher penalties).
Although there may be a desire to resolve a citation at an informal conference, thought should be given to the advantages of formally contesting a citation. First, at the informal conference, an employer does not have the right to review OSHA’s files regarding the citation. As a result, the employer will not know potential weaknesses in the case. By formally contesting a citation, however, the employer may be in a better position to evaluate the strengths and weaknesses of the citations and any potential defenses. Second, by contesting the citation, the employer will be subject to the jurisdiction of the Occupational Safety and Health Review Commission (“OSHRC”), an independent federal agency that was created to decide contests of citations or penalties resulting from OSHA inspections. The OSHRC functions as a two-tiered administrative court, with established procedures for (1) conducting hearings, receiving evidence, and rendering decisions by its Administrative Law Judges (“ALJs”) and (2) discretionary review of ALJ decisions by a panel of Commissioners. Finally, OSHA has an incentive to settle contested citations early in the process and this often occurs.
In conclusion, although each case is different and future strategy will likely be dependent on the facts of each specific case, an employer should consider the potential benefits of formally contesting the citation and not simply view the informal conference as the only opportunity for early resolution.