Over the years I have used many OSHRC decisions in my newsletters and website, as I feel they are GREAT learning tools to further our understanding of what is required to comply with OSHA standards. The written decisions of the OSHRC include a ton of information about what the standard requires and the level of expectations. Much like the pre-ambles to some of the standards, these decisions are just another source of reliable information to help us understand the minimum OSHA requirements. But I always receive many questions about who the OSHRC is and what purpose do they serve. Here is the answer to those questions and some CRITICAL time lines should you ever find yourself challenging an OSHA citation…
The mission of the Occupational Safety and Health Review Commission (OSHRC) is to provide fair and timely adjudication of workplace safety and health disputes between the Department of Labor and employers. The cases in which the OSHRC renders decisions arise from inspections conducted the Occupational Safety and Health Administration (OSHA), which is a part of the Department of Labor. OSHRC, or the Review Commission, and OSHA were created by the Occupational Safety and Health Act of 1970, but the Act mandated that the OSHRC be an independent agency (i.e., not part of another Federal department) to ensure that parties to agency cases receive impartial hearings. Upon notification that an employer or affected employees have contested a citation, OSHRC creates a case file. The OSHRC’s Office of the Executive Secretary, which functions much like the court clerk’s office, assigns docket numbers to each contest, or new case, at its National Office in Washington, D.C. All affected parties are then notified by mail of the docketing of the case. Thereafter, the Chief ALJ assigns the case to a judge in Washington, D.C. or one of the agency’s regional offices, in Atlanta and Denver.
Commission Procedures
OSHRC’s Rules of Procedure provide for two levels of adjudication. The first level is before an Administrative Law Judge (ALJ). The second level is review of the ALJ’s decisions by the agency’s Commissioners in Washington if one of the parties petitions for review.
The OSHRC Rules of Procedure may be found in Part 2200 of Title 29 of the Code of Federal Regulations. These rules govern two types of proceedings. The more formal conventional proceedings involve the use of pleadings, discovery, a hearing and post-hearing briefing or argument. The less formal method, called Simplified Proceedings, employs fewer legal procedures and is permitted in certain less complex cases and can be requested by either party. In Simplified Proceedings, there are no formal pleadings and early discussion among the parties to narrow the disputed issues is required. Details on Simplified Proceedings are in the Rules of Procedure. Guide booklets to both conventional procedures and Simplified Proceedings are available here for downloading and from the Review Commission.
Once a Hearing is Scheduled
Upon receipt of a case by the assigned ALJ, a hearing date is set and a hearing site is selected as close as possible to where the alleged violation(s) occurred. On the hearing date, the ALJ from the Review Commission conducts the adversarial proceedings in accordance with the Commission’s Rules of Procedure.
A cited employer or an affected employee may appear with or without legal counsel. The Secretary of Labor, OSHA’s representative, is represented by a government attorney who bears the burden of proving the violation(s).
Upon hearing all of the evidence, the ALJ will issue a written decision based on findings of fact and conclusions of law. As part of the ALJ’s decision, the citation(s) will be either affirmed, modified or vacated. The decision becomes final in 30 days unless within that period one of the parties requests that the decision of the ALJ be directed for review by the three (3) OSHRC Commissioners in Washington, D.C. If one of the three (3) Commissioners directs that the case be reviewed, they review all of the evidence, briefs, arguments and the ALJ’s decisions. Thereafter, they render a decision to affirm, modify or vacate citations and penalties that have been proposed by OSHA.
Commission decisions, including Administrative Law Judge decisions, are available from the Review Commission and more recent decisions can be accessed and downloaded from the OSHRC web site.
If review of the ALJ decisions by the Commissioners is not directed, the petitioning party may request review by an appropriate U.S. Circuit Court of Appeals. Any person who is adversely affected or aggrieved may also appeal the decision of the three OSHRC Commissioners to an appropriate United States Court of Appeals. Review by a Court of Appeals must be sought within 60 days after the Commission’s final decision is issued.
Additional Information
It is important to recognize that OSHRC is the independent Federal agency that serves as the court system to adjudicate disputes between employers and employees and the Secretary of Labor arising from contested work place safety inspections. OSHA is a separate agency, in the U.S. Department of Labor, that is responsible for setting work place safety and health standards and inspecting work places to enforce compliance with those standards.