After an employer has received a citation from the Occupational Safety and Health Administration, the informal conference process offers a path for potential settlement of the dispute. The informal conference can result in reduced penalties, reclassified citations, modifications, or even withdrawal of items contained in the citation. When faced with an offer from OSHA to settle a citation, employers should consider a number of factors involved in making that decision.
Appealing an OSHA citation entails significant cost and time that often exceed the proposed penalty. However, accepting a final citation raises risks for the employer that go beyond the monetary payment. That citation could form the basis for a future repeat serious violation. Repeat citations carry penalties that are 10 times those for an initial serious violation. OSHA can base the repeat violation on an inspection of an employer’s facility that is unrelated to the original citation. Therefore, settling a citation requires that the employer have confidence that it has identified and corrected the condition that led to the inspection.
If an employer decides to appeal the citation, it must have substantive legal or factual grounds upon which to base the appeal. The appeal involves a quasi-judicial hearing with witnesses and evidence, and legal counsel representing OSHA. Employers that do not invest the time and resources necessary to counter OSHA’s case have a low chance of prevailing on appeal. Displeasure with the inspection or that fact that competitors may have the same uncited safety issues are not strong grounds for arguing the impropriety of an OSHA citation.
In many situations, the deadline for appealing an OSHA citation requires a quick decision on whether to settle the matter. These time pressures should not detract from the need for employers to carefully consider all of the potential consequences involved with the settlement decision.
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