When You Get a Citation
A safety compliance officer inspected your workplace and found problems. Now what?
As a next step, you’ll most likely receive a citation, which informs you and your employees of the nature of the violation. Specifically, a citation will list the standard violated, provide a short description of the situation and give you a date by which to correct hazards. The citation will include a Notification of Penalty, also known as a fine. You receive citations and notices of proposed penalties by certified mail.
These are the categories of violations that may be cited and the related penalties:
- De minimis violation. A violation that has no direct or immediate relationship to safety or health and does not result in citations.
- Other-than-serious violation. A violation that has a direct relationship to job safety and health, but probably would not cause death or serious physical harm. OSHA may assess a penalty up to $1,000 for each violation. The agency may adjust a penalty for an other-than-serious violation downward by as much as 95 percent, depending on your good faith-efforts to comply, history of previous violations and size of business.
- Serious violation. A violation for which there is a substantial probability that death or serious physical harm could result. OSHA assesses the penalty for a serious violation from $1,500 to $7,000, depending on the gravity of the violation. Again, OSHA may adjust a penalty for a serious violation downward based on your good faith efforts, history of previous violations and size of business.
- Willful violation. A violation you intentionally and knowingly commit. You’re aware that a hazardous condition exists, know that the condition violates a standard or other obligation, and have made no reasonable effort to eliminate it. OSHA may propose penalties up to $70,000 for each willful violation. The minimum willful penalty is $5,000. An employer who is convicted in a criminal proceeding of a willful violation of a standard that has resulted in the death of an employee may be fined up to $250,000 ($500,000 if the employer is a corporation) or imprisoned up to six months, or both.
- Repeated violation. A violation of any standard, regulation, rule or order when, upon reinspection, a similar violation to a violation cited within the last three years is found. These violations can bring a fine up to $70,000 for each violation within the previous three years.
- Failure to abate. Neglecting to correct a previous violation may bring a civil penalty up to $7,000 for each day the violation continues beyond the prescribed abatement date.
- Falsifying records, reports or applications can, upon conviction, bring a criminal fine of $10,000 or up to six months in jail, or both.
- Violating posting requirements may bring a civil penalty of $7,000.
- Assaulting a compliance officer or otherwise resisting, opposing, intimidating or interfering with a compliance officer in the performance of his or her duties is a criminal offense, and is subject to a fine of not more than $5,000 and imprisonment for not more than three years.
Ways to Handle a Citation
If you receive a citation as a result of a workplace inspection, you have three options:
- Correct and pay
- For violations you do not contest, you must:
- Notify the OSHA Area Director by letter (signed by a member of management) that you have taken the appropriate corrective action within the timeframe in the citation.
- Pay any penalties within 15 working days of receiving the penalty notice. Payment should be made by check or money order, payable to DOL OSHA. Send it to the OSHA Area Office listed on the Citation and Notification of Penalty.
The notification you send the Area Director is referred to as “abatement certification.” For other-than-serious violations, this may be a signed letter identifying the inspection number and the citation item number, and noting that you corrected the violation by the date specified on the citation.
For other violations (such as serious, willful, repeat or failure to abate), abatement certification requires more detailed proof. The inspector or the citation itself may note the kinds of proof required. If in doubt, ask. Sometimes a citation permits an extended time for abatement. In that case, you may be required to provide OSHA with an abatement plan that details the actions you will take to protect employees and correct the hazards. You may be asked to provide periodic progress reports on your corrections.
If you do not contest a citation within 15 working days, your citation will become a “final order” not subject to review by any court or agency. Even so, OSHA may continue to provide you with information and assistance on how to abate the hazards cited in your citation. It will not amend or change any citation or penalty that has become a final order, but it still may extend the time you need to abate the violation.
- Hold an informal conference
- Option two is to talk with an OSHA official informally. Do so when you want to:
- Get a better explanation of the violations cited
- Understand the specific standards that apply
- Negotiate an informal settlement agreement
- Discuss ways to correct violations
- Ask for an extension of correction dates
- Address any factual errors in the citation
- Discuss problems concerning employee safety practices
- Resolve disputed citations and penalties
- Get answers to any other questions you may have
Remember: An employee can request an informal conference, too. No matter who requests the conference — employer, employee or employee representative — each party gets the opportunity to participate. If one party chooses not to participate in the informal conference, he or she forfeits the right to be consulted before decisions are made that affect the citations. If the requesting party objects to the attendance of the other party, OSHA may hold separate informal conferences. And during a joint informal conference, any party may request separate or private discussions.
- Contest the citation
- If you wish to contest any portion of your citation, you must submit a Notice of Intent to Contest in writing within 15 working days after receipt of the Citation and Notification of Penalty. This applies even if you have expressed your disagreement with a citation, penalty or abatement date during a telephone conversation or an informal conference.
The Notice of Intent to Contest must state clearly what is being contested — the citation, the penalty, the abatement date or any combination of these factors. In addition, state whether all the violations on the citation, or just specific violations, are being contested.
A proper contest of any item suspends your legal obligation to abate and pay until the item contested has been resolved. If you contest only the penalty, you still must correct all violations by the dates indicated on the citation. If you contest only some items on the citation, you must correct the other items by the abatement date and pay the corresponding penalties within 15 days of notification.
How to Contest a Citation
If you receive a citation and file a written Notice of Intent to Contest, the OSHA Area Director will forward your case to the Occupational Safety and Health Review Commission. The commission assigns the case to an administrative law judge, who usually schedules a hearing close to your workplace.
- Hearing: Both employers and employees have the right to participate in this hearing, which contains all the elements of a trial, including examination and cross-examination of witnesses. You may choose to represent yourself or have an attorney represent you. The administrative law judge may affirm, modify or eliminate any contested items of the citation or penalty.
- Appeals: Once the administrative law judge has ruled, any party to the case may request a further review by the full review commission. In addition, any of the three commissioners may, on his or her own motion, bring the case before the entire commission for review. The commission’s ruling, in turn, may be appealed to the U.S. Court of Appeals.
Contesting a citation could take time, effort and money. Think hard before you contest.
- Am I in the right or do I simply want to avoid paying a fine or eliminate a hazard?
- Do I have a strong case?
- Do I have the time and money to see it through?
- Have I done a cost/benefit analysis that shows it makes sense to go to court?
- Do my fellow managers/owners think we have a good case?
- Are any employees likely to undercut the case?
- Does an attorney specializing in OSHA proceedings think I have a good case?
- Even if it’s a “matter of principle,” would it be wiser to just pay the fine, eliminate the hazard and walk away?
Of course, hiring an attorney and contesting a citation may be the right choice. An experienced attorney who knows the field, for example, may be able to negotiate a deal that you, as a novice, would not be able to — or get the citation and penalties thrown out altogether.
Another Post-Citation Move: Requesting More Time
There’s another way you can respond to a citation and that’s to ask OSHA or your state plan for more time to correct violations.
If you feel you are unable to meet an abatement date, and the 15-day contest period has expired, you can file a Petition for Modification of Abatement (PMA) with the OSHA Area Director. The petition must be in writing and submitted no later than one working day after the abatement date. To show you have made a good-faith effort to comply, the PMA must include all of the following information before OSHA will consider it:
- Actions you have taken to achieve compliance, and dates they were taken
- Additional time you need to comply
- Why you need additional time
- Interim measures you are taking to safeguard your employees against the cited hazard(s) until the abatement
- A certification that the petition has been posted, the date of posting and, when appropriate, a statement that the petition has been given to an authorized representative of the affected employees
The petition must remain posted for 10 working days, during which time employees may file an objection. Any objection must be in writing and sent to the Area Office within 10 days of service or posting.
The OSHA Area Director may grant or oppose a PMA, if applicable. Also, OSHA may conduct a monitoring inspection to check on conditions -- and that progress is being made toward abatement. If the PMA is opposed, it automatically becomes a contested case.