Judge tells employer that temporary crisis is no excuse for lack of orderly procedures

Full Commission to review “excusable neglect” defense of untimely response to OSHA

Posted July 25, 2017

A case before the Occupational Safety & Health Review Commission (OSHRC) involves an OSHA citation, severe water damage, and a late-filed response. On June 28, 2016, OSHA issued a citation to an environmental services company with a proposed penalty of $14,000. The company failed to contest the citation within 15 days of receiving it, which means the citation automatically became a final order.

However, the company took its case to OSHRC, arguing that it was entitled to relief under the “excusable neglect” standard. That’s because shortly after the company received OSHA’s citation, it experienced severe water damage, including water dripping onto a desk where the OSHA paperwork had been placed. The OSHA citation, along with many other wet papers were moved to a different location while repairs were made. Once the company found the citation among the wet papers, it immediately mailed its notice of contest to the Area OSHA Director, but the 15-day cutoff had already passed.

The company told the court that it was so busy dealing with the temporary crisis in the office, such as preventing and mitigating mold, fixing damaged structures, and restoring a safe working environment, that it lost track of the citation. But as soon as the company was able to return to its regular business operations, it acted quickly on the citation and sent in its notice of contest.

Rule 60(b) of the Federal Rule of Civil Procedure allows OSHRC to grant relief to a party for missing the contest deadline for excusable neglect, which includes situations where missing a deadline may be due to negligence. In previous cases, the Supreme Court has held that the court must consider all relevant circumstances surrounding the negligence. This could include the length of delay and its potential impact on court proceedings, the reason for the delay, whether the delay was in the control of the company, and whether the company acted in good faith.

Judge says company lacked orderly procedures

The Administrative Law Judge disagreed with the company’s argument, saying that even though the company was involved in numerous repairs, “it had not shown those repairs interfered in its ability to timely file its notice of contest.”

The judge explained that employers must maintain orderly procedures for handling important documents. When the lack of these procedures results in untimely filings, “Rule 60(b) relief is not warranted.” According to the judge, the reason for the delay was within the “reasonable control” of the company. Therefore, the judge denied the company’s request to schedule a trial on the matter.

Full Commission review pending

But that’s not the end of things. On July 17, OSHRC directed a review of the Administrative Law Judge’s decision by the full Commission. OSHRC will review all the evidence, briefs, arguments, and the judge’s decision and make a final decision on the outcome of the case.

1910 OSHA GuideOSHA Rules for General Industry: 1910 and Other Essential Regulations puts OSHA’s workplace safety regulations in a reader-friendly format.


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