Threshold to Conduct Simplified Proceedings May Change If OSHA Penalty Amounts Rise

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The Occupational Safety and Health Review Commission in 2011 will consider changing the standard for its simplified proceedings to account for possible increases in penalties for job safety violations, according to Commission Chairman Thomasina Rogers.

Under the current rules, cases are eligible for simplified proceedings if they involve total fines of less than $20,000. The Review Commission is considering raising that amount because a new policy put in place by the Occupational Safety and Health Administration Oct. 1 could increase penalty amounts, Rogers told BNA in a Dec. 3 interview (40 OSHR 843, 10/14/10).

“We want to make sure there are no unintended consequences from OSHA raising its penalties,” she said.

“Right now, we have a large number of cases that are under the $20,000 [threshold],” a review commission staffer told BNA Dec. 3. “If it turns out that, because of [OSHA's] new penalty policy, the cases that used to come in at $10,000 or $8,000 are now coming in at $25,000 or whatever, then we'll have to look at it to see if we need to change the thresholds.”

Any change to the Review Commission's rules of procedure would have to be done through rulemaking, Rogers said, giving affected parties the chance to comment.

In a separate matter, Rogers also told BNA the commission will try to resolve a series of cases in 2011 that deal with piercing the corporate veil. (See related story in this issue.)

Rules Intended to Speed Contests.

The simplified proceedings rules are intended to resolve contests more quickly and cheaply than would otherwise be possible if certain conditions are met, according to Subpart M of the Review Commission's rules of procedure.

Complaints, answers, and pleadings are not required, and discovery is not permitted, except as ordered by an administrative law judge, according to the rules for simplified proceedings. Hearings are less formal, federal rules of evidence do not apply, and parties argue their cases orally at the conclusion of the hearing, rather than submitting briefs. Judges may render their decisions from the bench.

Cases are eligible for the streamlined process if they “do not involve complex issues of law or fact,” meaning they involve relatively few citation items; do not include any allegations of willfulness, a repeat violation, or fatality; are not expected to take more than two days of hearing proceedings if a hearing is convened; involve a small employer; or do not involve an aggregate proposed penalty of more than $20,000. The chief administrative law judge decides which cases are assigned to the simplified proceeding process.

OSHA implemented a new penalty policy Oct. 1, under which the agency expects the maximum penalty for a serious violation to rise from $1,000 to an average of between $3,000 and $4,000.

The Review Commission's rules are periodically reviewed, Rogers said. The last time that happened was in 2005.

Rogers also called the simplified proceedings process “a very good tool that is working very well for us,” because “most of the cases that come in here are not your Imperial Sugar, BP, or Dayton Tire [cases]. They're cases that are totally suitable for simplified proceedings.”

The staffer said roughly half of the Review Commission's cases are assigned to simplified proceedings.

Industry Lawyer Insists on Opt-Out Provision.

Baruch Fellner, a partner with Gibson, Dunn & Crutcher, told BNA Dec. 13 that he did not object to a broader use of the simplified proceedings program as long as each side retained the ability to opt out.

“The penalty amount, in and of itself, is not necessarily indicative of the importance of the citation to the employer,” Fellner said. “What is fundamentally important to the employer is whether they can abate the citation in the fashion as required by OSHA. If the answer is no, either from an economic or a technological feasibility perspective, then the penalty is largely irrelevant. You have to have the full due process rights that go along with a contested citation.”

Under the rules of procedure, any party can file a motion requesting that the simplified proceedings be discontinued at any time. The administrative law judge handling the case then considers the matter in consultation with the chief administrative law judge. In practice, however, when one party wishes to opt out, the request is generally granted and the case is continued under conventional rules, the review commission staffer said.

But according to Fellner, even when a discontinuance of the proceedings is granted, “there's still an accelerated time frame. If a judge decides a case ought to go to simplified proceedings, there is a view held by the judge that this is a case that ought to be held expeditiously, and it becomes more difficult to obtain the time necessary for adequate discovery. That should be cured. If that problem persists, then due process rights for employers are being denied.”

Michael Taylor, an attorney with Arent Fox, told BNA Dec. 13 that one side effect of raising the threshold for simplified proceedings could be an increase in challenges to OSHA citations, as employers capitalize on an opportunity to seek judicial review inexpensively.

“I think judges might find more people filing notices of contest pro se, rather than hiring a lawyer, which may not always be the best route, in terms of OSHRC's docket,” Taylor said.

By Stephen Lee

The Occupational Safety and Health Review Commission's simplified proceedings provisions are available at