Can an employer get a second chance to fight an OSHA citation if it failed to file a timely response? Yes, but only in rare instances and under “exceptional circumstances.”
An April 1, 2022, Occupational Safety and Health Review Commission (OSHRC) case shows that an employer’s lack of computer skills and technical difficulties in filing electronically with the court wasn’t enough to get an extension of the OSHRC’s filing deadline.
‘OSHA, OSHRC are different entities’
In October 2020, OSHA inspected a Knock Out Homes worksite in Illinois, resulting in citations for one willful and three serious violations involving fall protection, ladder safety and housekeeping issues. A fine of $41,349 was issued for the violations.
The owner of Knock Out Homes received an email March 29, 2021, regarding the violations and was notified he had until April 19, 2021, to file a response with the court on whether or not he’d be contesting the citations.
On April 19, 2021, the attorney representing OSHA in the case contacted the owner via email reminding him it was his last day to file a response with the OSHRC.
Several emails were exchanged between OSHA’s attorney and the owner on that date, with the owner asking for help with problems he was having e-filing on the OSHRC website. The attorney clarified that she was with OSHA and that the OSHRC was a separate entity, so the most she could do for him was provide a phone number and email address for OSHRC technical support.
After a few more exchanges, the attorney also provided the name of the judge who would be hearing the case and a phone number for the judge’s legal assistant in case the owner had problems getting a response from technical support.
The owner was able to create an account but continued to struggle with filing his response, which was never filed.
Technical difficulties continue
On May 12, 2021, a legal assistant with OSHA issued an “Order to Show Cause Why Notice of Contest Should Not Be Dismissed,” also known as a Show Cause Order. This is basically a last chance for an employer to file a response before “the alleged violations set out in the citations would be affirmed and the proposed penalties would be assessed without a hearing.” The owner had until May 26, 2021, to file his response with the OSHRC.
The owner sent an email back to OSHA’s legal assistant on May 26, 2021, again claiming technical difficulties with electronic filing on the OSHRC website and requesting an alternate method of filing. The legal assistant provided contact information for OSHRC technical support and for the judge’s office and clarified that she couldn’t do much more than that since she was with OSHA not the OSHRC.
A response wasn’t filed, and on Aug. 3, 2021, OSHA filed a motion for default judgment.
Owner sends letter asking for help
On Nov. 18, 2021, the owner sent a letter to the OSHRC stating that he was unable to access the “OSHA Portal” despite multiple calls to the Kansas City and Washington OSHA offices. In the letter, he said his company was an “employee owned company” that had “no employees” and that he wanted to submit proof but couldn’t due to lack of access to “the Portal.” He explained that he needed help because he isn’t a “computer person” and had tried everything he could to get help in submitting a proper response.
The OSHRC granted aid by viewing the owner’s letter as a request for relief under Rule 60(b)(1), which states that employers can get relief from a final judgment order in extraordinary and exceptional circumstances for “mistake, inadvertence, surprise or excusable neglect.” An employer bears the burden of proving it’s entitled to such relief.
No excusable neglect, $42K fine stands
In this case, the court found the only potential circumstance that could apply was excusable neglect, which may apply in cases where, for example, a secretary received the notice but failed to communicate it to the employer or in which the court provided an incorrect deadline date.
But the OSHRC found the owner failed to prove his case.
His primary excuse was that he couldn’t access the OSHRC electronic-filing system while doing the best he could despite not being computer savvy. However, he managed to communicate multiple times to OSHA via email and received phone numbers and email addresses of OSHRC representatives for further assistance but failed to use them.
According to the OSHRC decision, the owner’s “ability to respond via email at critical moments … reveals that he was not completely ignorant of technological tools” which “demonstrates, at best, inexcusable inattentiveness or neglect, rather than excusable carelessness.”
That meant the OSHA citations were affirmed in their entirety and the employer remained on the hook for the $41,349 fine.