Receiving a citation from the California Division of Occupational Safety and Health (Cal OSHA) can be a daunting experience for any business. Citations become a part of an employer’s public record, potentially affecting future project acquisition. Therefore, appealing any/all citations is highly recommended.
Why Appeal Cal OSHA Citations?
Appealing Cal OSHA citations provides your business with an opportunity to present your side of the story. Citations might not fully capture the nuances of your operational methods or safety protocols. Misunderstandings or misinterpretations can occur, leading to citations that may need to be withdrawn, amended, reclassified, reduced.
How Long do Employers Have to File an Appeal?
Employers have 15 days from date of receipt of citations to file their intent to appeal. Filing can be done online in the State’s OASIS system (https://caldir-production-portal.ecourt.com/public-portal/) or by filling out forms manually and submitting by mail or fax (https://www.dir.ca.gov/oshab/appealform.pdf).
Once appealed and perfected (appeal granted by OSHAB), you will have up to approximately two years to defend your company’s position. Employers can speed this process if it proves advantageous.
Tips For Employers Filing an Appeal of Cal OSHA Citations
Employers can file their own appeals; however, a person with experience can greatly assist in the success of final outcome.
- Identify and assert all appropriate affirmative defenses. A few are provided via check box on the appeal form; however, many more are available and important to assert, if applicable. Note: Motion to Amend Appeal can be filed later; however, depending on the circumstances, your Motion may not be Granted.
- Abate alleged serious citations asap if not issued as “corrected during inspection.” If serious citations are issued as not corrected, your appeal will be issued as Expedited Status, forcing your appeal to be processed within 150 days, which is not advantageous for the employer in most cases.
- Request Discovery. Serve this request to acquire your case file which includes all documents, interviews and photos collected during the inspection. The Request should demand all future evidence discovered/produced by the Division (Cal OSHA). Case file evidence or lack thereof may necessitate the need for a motion to be filed.
Here are some common discrepancies to look for:
- Statute of Limitations (i.e. citations must be issued within six months of last known date of violative condition)
- Proper Employer Name/Identification (Controlling, Creating, Ex- posing, Correcting or Primary/Secondary)
- Clarity in Alleged Violative Description(s) (vagueness is a defense) n Misapplication of Section and Subsection number(s) – common
- Lack of or misunderstanding of evidence to support an alleged violation
- Duplicative citations (multiple citations for a single hazard)
- Many other arguments may present themselves, as all cases contain their own unique variables.
What If I’m Not Successful With My Formal Defense Prior to Going to Hearing?
Worst case, if you are not successful or have limited success with your formal defenses/arguments prior to going to Hearing, the Appeal process makes available a non-admission of guilt clause in a settlement agreement, which can prove extremely valuable in not permitting the citations to be used to imply guilt in current/future third-party proceedings.
Proceeding to Hearing is only recommended if you are very confident in your legal position. The outcome at Hearing will be recorded as a Decision by trier-of-fact. You can appeal for reconsideration; however, this is an expensive road to travel with no guarantees.
The bottom-line recommendation is to Appeal any and all Cal OSHA citations regardless of penalty totals because the penalties are not, in most cases, the most important issue for your organization.
Need help getting your Cal OSHA citation appealed? OSTS will evaluate your case, prepare arguments / defenses and handle all negotiations with OSHA & Appeals Board. Learn more about how we can help you.
