Employers have gotten a reprieve in three recent cases in which they missed a 15-day statutory deadline to challenge federal worker-safety citations, a trend that could have greater impact because of the pandemic.
The second chance for late appeals of allegations that employers endangered workers — two-and-a-half years late, in one case — comes as businesses and the U.S. Occupational Safety and Health Administration face notification difficulties brought on by virus-related problems such as slow mail delivery and offices that are closed or thinly staffed.
The Occupational Safety and Health Review Commission, which hears appeals of OSHA citations, is now giving a second look to at least two cases involving employers that failed to meet the deadline. A third case that raised the issue recently settled.
The shift to decide the appeal based on the merits of the case and not deadline-related processing reflects a pair of recent appeals court decisions that kicked late appeals back to the review commission, according to Gary Visscher, a lawyer who served on OSHRC in 1999 and 2000 and is now of counsel with the Law Office of Adele L. Abrams P.C. in Beltsville, Md.
But OSHA and the review commission may have to make additional allowances for slow responses that can be attributed to virus-related issues, said attorney Anthony Tilton, a partner with Cotney Construction Law L.L.P. in Tallahassee, Fla., who successfully represented a builder in a late-filing case.
Employers should record when citation documents are received and when their appeal is sent to OSHA because delays attributable to closed offices or employees working away from an office may be justifiable, he said.
“Those are all elements of excusable neglect,” Tilton added.
The 1970 law that created OSHA gives employers 15 working days after receiving a citation by certified mail to file a notice of contest.
A spokesperson for the Labor Department, which oversees OSHA, said the agency’s notification policies haven’t changed—by law, certified mail is the only official way to notify employers.
However, when virus issues could lead to situations such as closed offices, the agency has used additional contact methods, including telephone calls, email, and hand-delivery, the spokesperson added. Employers are encouraged to discuss settlement options with OSHA area offices before formally contesting alleged violations.
This summer, the review commission approved the rehearing of one case, Secretary of Labor v. Arch-Tech Construction. Confusion about a virus-related shutdown of a courthouse in March and miscommunication between the business owner and DOL attorneys had led the owner to believe OSHA had dropped the citations or legal actions were on hold.
And earlier this month, PetSmart Inc. got a second chance in an appeal filed two-and-a-half years after the citation was delivered to a Vero Beach, Fla., store in October 2017.
Review commission Administrative Law Judge Sharon Calhoun had rejected PetSmart’s late appeal in an Aug. 24 decision, writing that the company hadn’t “provided the Court evidence regarding any good faith efforts to timely contest.”
But all three review commission members in an Oct. 13 remand order vacated Calhoun’s decision and sent the appeal back to her for reconsideration.
In PetSmart v. Secretary of Labor, the retailer said its Phoenix-based managers weren’t aware of the 2017 Vero Beach citation until a debt collection agency contacted corporate headquarters earlier this year.
OSHA should have sent the citation and penalty notice to PetSmart’s Phoenix office, the company said in its appeal. The retailer said its corporate safety manager in 2017 had requested OSHA refer all questions to company headquarters.
PetSmart’s attorneys declined to discuss the ongoing case.
‘Forced’ Second Look
It’s not clear if other late-appeal cases are being contested at the review commission. Since mid-March, the commission’s Washington, D.C., office has been closed to public inspection of case filings.
The review commission in recent months has rejected at least two appeals on the grounds that the employer’s reasons for the delay didn’t merit a new hearing.
One of the rejections, involving a contractor in Council Bluffs, Iowa, was appealed to the U.S. Court of Appeals for the Eighth Circuit on Oct. 16. The court has yet to issue a decision in Reiber Contracting Inc v. Secretary of Labor.
Tilton, the Florida lawyer, cautioned that the greater leeway courts are showing shouldn’t be seen as a green light for late appeal, especially if it can be shown that citations were ignored.
“This is not a get out of jail card,” Tilton said.
Visscher, the former review commission member, pointed to two appeals court cases decided in the past year that are likely encouraging the recent trend—Coleman Hammons Construction Company Inc. v OSHRC and Randall Mechanical Inc. v. Secretary of Labor.
“I think what happened was that the current commission was forced to take a look by courts of appeals decisions,” he said.
Both cases involved whether the chain of events leading to late filings could be considered “excusable neglect,” as defined by the U.S. Supreme Court, and deserved full hearings.
The high court’s 1993 decision in Pioneer Investment Services Co. v. Brunswick Associates Limited Partnershiplaid out criteria for deciding whether late filings were the result of excusable neglect, Visscher said.
The review commission majority prior to the recent shift had tended to take a strict view on what was an allowable reason for late appeal under the Pioneer standard, according to Visscher. A flooded office might pass the commission’s interpretation, but paperwork mix-ups weren’t likely to be a winning argument.
Tilton represented Randall Mechanical in its appeal to the Eleventh Circuit.
The issue was a misunderstanding between a company manager and OSHA, Tilton said. After the company received the citation, the manager thought that as long as he was discussing the case with OSHA, there wasn’t a need for a formal written appeal.
When Randall Mechanical learned it had missed the 15-day deadline, the company hired Tilton’s firm and the notice was promptly sent. But in May 2018, the commission issued a final order declaring the notice was filed too late.
Randall Mechanical filed an appeal with the Eleventh Circuit in July 2018 and, on March 18, 2020, a three-judge panel unanimously remanded the case back to the review commission. The company and OSHA later settled and closed the case, Tilton said.
In Coleman Hammons, a three-judge panel from the Fifth Circuit unanimously ruled on Nov. 6, 2019, that the review commission erred when it decided that the Pearl, Miss., contractor, wasn’t entitled to have the merits of the case considered because the challenge was filed 18 days late.
The company argued that the office manager familiar with handling mail from OSHA was out when the certified letter was delivered and another worker left the letter on the desk of a construction supervisor who was on a two-week business trip.
When the supervisor returned and saw the OSHA letter, he immediately called the agency and filed a written notice of contest five days later.
The appeals court judges said Coleman Hammons’ record of timely appeals of prior OSHA citations was proof it had good practices in place and shouldn’t be penalized for the late notice.
“Far from being inadequate, the procedures enabled the company to handle seven previous OSHA citations and in at least three instances, to contest them by informal means within the statutory time limit,” the court said. “This track record demonstrates the company’s usual procedures were sufficient to respond to OSHA matters.”
The case was remanded back to the review commission, where Coleman Hammons continues to contest the violations.