September 2004
By THOMAS H. WELBY, P.E., ESQ.
In any construction company, safety policy flows from the top down. Management must communicate to project managers, supervisors and trades people the importance of a safety philosophy and safety programs of the company. Emphasis is usually on well-defined and rigorous training procedures, outside the seminars, internal toolbox talks and programs designed to enhance safe-work conditions.
Also important are the internal paperwork systems designed to document training, and the enforcement of safety policy. However, management must also instruct clerical and administrative support staff in how to properly respond to certain aspects of administering safety programs. Key among them is how to process OSHA citations that may be issued to the employer.
As discussed in prior articles, despite careful planning and the best of intentions, OSHA inspections sometimes result in the issuance of citations. Often, legitimate defenses to the allegations are available to the contractor. Legitimate defenses may be lost if the citations, once issued, are mishandled by the front office. In particular, a Notice of Contest must be timely filed or the citations become final and unappealable.
Tardiness Is No Defense
In a recent decision, the Occupational Safety and Health Review Commission held that the filing by a contractor of a Notice of Contest some 20 days after issuance and receipt of the citation was untimely, and affirmed all of the allegations in the citation, without addressing the merits of the contractor's defenses. In so ruling, the judge acknowledged that the employer was out of state during the 15-day period, to attend to a gravely ill elderly relative. In its decision, the court expressed sympathy, but showed no mercy. (Secretary of Labor v. Construction 2000, Inc., June 14, 2004)
The Facts
Following a construction site inspection on Sept. 9, 2003, the OSHA Compliance Office issued a citation on Sept. 26, 2003. The citation was mailed to the contractor by "Certified Mail, Return Receipt Requested" and was received by the contractor on Oct. 2, 2003. The contractor was a small business, and the president of the company took care of all of the paperwork. While the president of the company was out of state, the mail, including the OSHA citations, was accumulated for his review and action upon his return. He returned after the 15-day period and immediately contacted the OSHA Area Office. The Compliance Officer instructed the contractor that under certain circumstances, a Late Notice of Claim may be filed. The contractor immediately filed a Notice of Claim, giving an explanation. The Secretary of Labor then made a motion to the commission to dismiss the notice as being untimely.
As the OSHA Compliance Officer correctly informed the contractor, an untimely Notice of Contest may be accepted, but only under very narrowly defined circumstances which are difficult to establish. The employer has the burden of proving its entitlement to a late filing.
An otherwise untimely Notice of Contest may be accepted if the delay in filing was caused by: deception on the part of the Secretary of Labor; failure of the Secretary of Labor to follow proper procedure; pursuant to Federal Rule of Procedure 60(b), if the final order was entered as a result of mistake, inadvertence, surprise or excusable neglect; or any other reason justifying relief, including mitigating circumstances such as absence, illness or disability that would prevent a party from protecting its interests.
One might think that under the circumstances of this particular case, the contractor would be permitted to file a late Notice, and pursue his defenses to the citations. This was not the interpretation given by the judge. Citing prior Commission Orders, he stated that an employer must bear the burden of its own lack of diligence in failing to carefully read and act upon the information contained in the citations. Furthermore, ignorance of the procedural rules does not constitute "excusable neglect," and mere carelessness or negligence does not justify relief from the requirement of timely filing.
The judge noted that the commission has in the past ruled that a business must maintain orderly procedures for the handling of important documents (such as OSHA citations), and that when the lack of such procedures results in an untimely Notice of Claim, the late filing will be deemed to be simple negligence and not excusable neglect. He noted that the commission has denied relief where the late filing was due to an employer's misunderstanding or confusion about the 15-day filing, and where the delay in filing was caused by the absence, even if due to illness, of the person responsible for handling OSHA matters.
The bottom line is that the commission requires employers to have in place an administrative system whereby OSHA citations will be received and responded to in a timely manner.
In affirming the citations against the contractor, the judge stated, "While I sympathize with [the contractor's] situation and am convinced of his sincerity, I am constrained to follow commission precedent."
An OSHA inspection may occur on a single day or may be kept open for an extended period of time. OSHA has up to six months after the close of the inspection to issue the citations, although one to two months is a more likely time frame.
When a Citation is Received
Once a citation is received, the contractor's office staff should note on the citation the date received, and the manner in which it was received (e.g. regular mail, certified mail, process server, etc.). The contractor should contact the OSHA Area Director to set up an informal conference and that conference should occur within the 15-day period. The contractor should calendar the deadline for the filing of a Notice of Contest.
Every contractor's safety policy should include proper training of clerical and administrative support staff, so that citations, if and when received, are promptly brought to the attention of responsible management.
About the author: Mr. Welby is a senior partner of the law firm Welby, Brady & Greenblatt, LLP, of White Plains, Mr. Welby practices in the areas of bid protests, contract disputes, mechanic's liens, surety law, design professional's liability and contractors' claims in both the public and private sectors. He is a licensed professional engineer in both New York and New Jersey, and serves as both an arbitrator and mediator with the American Arbitration Association. He can be reached at (914) 428-2100.