This article was originally posted at some time between 2015 and September, 2020. It is being re-posted now as part of our website reconstruction. Some of the dates mentioned in this article may reference the time period from which it was originally posted.
Having an OSHA inspection is stressful enough, but the real stress comes when you walk into your office a few weeks later and find the certified letter laying on your desk. It’s your fine, more technically known as the citation and penalty. You knew it was coming, but now the moment of truth has arrived. You have fears of opening the letter and finding a penalty with many zeroes.
Your first step will be the most important, and I recommend you follow this advice to a “T”. First, do NOT, I repeat, DO NOT open the letter. Turn around, get back in your car, and drive to a donut shop. Get a large coffee and 2…maybe 3 donuts. Then return to work and find the quietest place in the building, and sit in the most comfortable chair you can find. Take a deep, cleansing breath. Now, you’re ready to open the letter. Your comfort will be critical, because you’re going to read the entire letter from beginning to end.
95% of it will be boilerplate information, which is important, but the real meat and potatoes is the part about the actual violations, fines, and abatement dates and method. It’s also critical to read the parts that explain what your options are. Take the time to read the entire citation; hours…even days. Get comfortable. You’re going to be there for a while.
As you read the letter, pay attention to your attitude and emotions. Be sure to stay positive and accepting of responsibility. Really, this will make the process much more tolerable. Don’t get angry or act hastily. Anger clouds judgement. As you weigh your options, you’ll need objectivity. If you feel yourself getting angry or argumentative, you might not be in the right frame of mind. Take a break and do something more enjoyable, like having a root canal.
Once you’ve read the letter from beginning to end, discuss it with other stakeholders and take a while to absorb, and decide what you want to do next, but keep in mind, you will need to react within the deadline for responding (see below).
Basically, you will have a few options:
Option 1. Pay the fine in full, and move on with life. This is a good approach if you don’t really dispute or disagree with the citations, the violations are easy to resolve, and the penalties are minimal; let’s say a few hundred or a few thousand dollars. Even if you don’t agree 100% with the violations, if the fines are small, you will need to ask yourself whether contesting the citation to possibly save a few hundred dollars is worth your time. Keep in mind there’s no guarantee of any reduction.
Option 2. Take advantage of any special programs that OSHA might offer. For example, here in Minnesota, most citations are eligible for an “Expedited Informal Settlement Agreement” or “EISA”. This program requires the employer to waive their right to contest any part of the citation, and in exchange, OSHA reduces the penalties by 30%. Be sure to read the fine print of the agreement.
Option 3. Contest the citation. This is a good option if:
- If you disagree with any of the violations
- You feel the fines are excessive
- You disagree with, or don’t feel you can correct (“abate”) the violations in the time required by OSHA, or in the manner they mandate
- You don’t disagree with anything, but you’d just like to request a reduction in penalty amount.
Except in very rare cases, you should dismiss the notion of having one or more of your citations thrown out (“vacated”). In reality, the vast majority of OSHA citations are completely valid, and try as they might, employers usually don’t succeed at getting violations vacated. The best you can hope for is a significant penalty reduction.
To contest your citation, in whole or in part, you would file a Notice of Intent to Contest or NOIC. This is a legal notification to OSHA that you wish to have an informal conference to discuss your case. There will be a form for doing this included in your citation letter. Be sure to follow the directions for filing the form! There are requirements for posting the form, communicating with unions, etc. Also, if you choose this route, it will be critical that you (1) File the NOIC within the allotted time period, usually about 20 days but this may vary from state to state. Read the letter to see when the deadline for filing is and pay attention to whether they use business or calendar days. OSHA has zero tolerance on late filings. The day your deadline expires, your citation becomes a final order, your fines are payable in full, and your case can’t be reviewed by any court. (2) Indicate in the NOIC that you plan to contest each one of the cited items, on all possible grounds, even if you don’t really object to the specific violation. This just keeps those items on the table for discussion.
When OSHA receives your NOIC they will contact you to schedule the informal conference. The informal conference is just that…an informal conference. It isn’t a legal proceeding with judges, and lawyers. It’s a few people sitting in a conference room at OSHA, discussing their concerns with the citation and/or penalty. You might object to whether or not there actually was a violation, or the penalty amount, or the abatement date or method. Or, you might feel you’re completely guilty, but would just like to ask for a reduction anyway. At the informal conference, it will be important to remain positive and cooperative, and avoid the urge to nit-pick the OSHA compliance officer’s conduct. It’s surprisingly common for my clients to bring up the fact that the OSHA inspector didn’t present their credentials, or broke some other minor protocol, thinking that their case will be “thrown out” based on this. That’s not going to happen and it creates a negative atmosphere.
For many reasons, I don’t recommend bringing your lawyer to the informal conference.
- It’s an unnecessary expense.
- There’s usually no need for legal advice at this point.
- It has the potential to take a relatively minor and inexpensive regulatory issue and make it much more expensive, prolonged and stressful.
Option 4. Bypass the informal conference and proceed directly to litigation. This almost never happens. I won’t even discuss it here.
Have you had an OSHA inspection and citation? How did it go? Please comment below.