OSHA issues about 90,000 citations per year. Believe it or not, some of these citations are unfair. If you get hit with what you consider to be an unfair citation, you must act fast. You have only 15 working days to file the necessary paperwork. If you make a mistake or miss the deadline, the citation becomes a final order and you lose your chance to contest it. Here's a look at what you need to do to preserve your rights.

The Notice of Contest

The document you must file to challenge an OSHA citation is called a "notice of contest." It lets OSHA know you disagree with the citation and reserve the right to fight it at a later agency hearing. Once you file the notice, the citation is put on hold. That means you don't have to abate, i.e., fix, the alleged violation or pay a fine unless and until a judge orders you to.

In the meantime, you have a breathing space to talk to your lawyers and business partners and plot strategy. If you miss the deadline for filing the notice, you must abate the violation by the date listed on the citation and/or pay the fine if and when OSHA demands payment.

Consider Informal Conference First

When you get the citation you don't have to file the notice of contest immediately. You have the right to meet informally with the OSHA area director and seek to work out a settlement (the director's address and phone number will be listed on the citation). Such conferences often lead to settlements without the need to file the notice and go to a formal hearing.

At the informal conference, you can point out errors in the citation, state your objections, request more time to make corrections or negotiate for a lower penalty. But while the area director has the authority to cut penalties, 20 percent is about the maximum break you can expect. Sometimes the area director will let you pay the proceeds of the penalty directly into your company's health and safety program rather than into the coffers of OSHA. This is worth asking about.

Two Caveats

There are a couple of things you need to be aware of regarding the conference. First, the time spent preparing for and attending the informal conference counts toward your 15-day deadline for filing a notice of contest. In other words, you don't get an extension on the deadline for conference-related activities. That means you need to ensure that the conference is scheduled to take place within 15 working days of the date you get the citation. This way, if you can't negotiate a settlement during the conference, you still have time to file the notice.

The second caveat: Once you file a notice of contest, you can't request an informal conference. So don't file the notice unless you resolve not to pursue negotiation first.

Counting the 15-Day Deadline

The 15-day deadline for filing a notice of contest is strictly enforced. If you miss it, don't expect OSHA to cut you any slack.

According to the OSHA citation regulations , you begin counting on the first working day after you get the citation from OSHA. Working days include every day but Saturday, Sunday and federal holidays.

Next week, in Part 2 of this series, we'll explain how to create and file a notice of contest.

The Canadian Perspective

Norm Keith - bio

ENFORCEMENT TRENDS: The Situation in Ontario

By Norm Keith, B.A., LL.B., CRSP

It is not just your imagination. OHS charges, convictions and fines have been on the rise across Canada. At least in Ontario, Alberta and British Columbia. The Ontario Ministry of Labour (MOL) recently published statistics confirming this.

The MOL Report

The MOL report covers OHS enforcement activities from 1993 to 2003. Some of the key findings include:

• The number of convictions for OHS offenses has nearly doubled from 397 in 1993 to 618 in 2003.
• The number of individuals convicted is also on the rise, including supervisors, workers and corporate officers.
• Fine amounts are growing even faster than convictions (7.5 % per year versus 5.6 % per year). In other words, the MOL is imposing higher penalties on convictions.

Conclusion

Ontario has long been the epicenter of Canadian legal enforcement activity. But these trends are not merely a provincial phenomenon. On the contrary, other provinces including Alberta and British Columbia are enforcing their OHS laws more actively. At the same time, the new Bill C-45 law, which took effect on March 31, 2004, has opened the door to criminal prosecutions of organizations and individuals for criminal offences.

The Bottom Line: It's become increasingly important for companies to adopt strong and effective OHS management systems to prevent accidents and legal liability.

About Norm Keith

Norm Keith, BA, LL.B., CRSP, is a partner in Gowlings' Employment and Labour Group, specializing in occupational health and safety law, workers' compensation, privacy law, labour and employment law, and alternate dispute resolution. He has extensive experience with wrongful dismissal, human rights, labour arbitration, judicial reviews, Ontario Labour Relation Board cases and fiduciary duty lawsuits.

To view his bio, click here. You can contact Norm by email here or by phone at (416) 862-5699.

A BRIEF HISTORY OF TERRORISM, PART 1

Dedicated to the Victims of Last Week's Attacks in London

After a short period of dormancy, terrorism has reared its ugly head again. Although terrorism is widely considered a 21 st century problem, it's been around for at least 2,000 years. In the coming weeks, SafetyXChange will provide a brief history of terrorism and the people who practice it.

What Is Terrorism?

There's a lot of debate over the definition of the term "terrorism." For purposes of this series, we'll define it as the premeditated use of violence to advance political goals.

Simon the Zealot: Used violence to oppose Roman occupation of the Middle East.

The First Terrorists

Most historians date the beginnings of terrorism to the first century. Perhaps not surprisingly, it started in the Middle East when local religious groups rose to oppose Roman occupation. Two of these groups exhibited a willingness to use violence to get the Romans to leave:

The Zealots: The Zealots, who were led by Simon, targeted the Roman occupying officials. Their legacy includes the modern words "zeal" and "zealot," which means a fanatical partisan.

The Sicari: Named for the short dagger they carried and killed with, called a sica, these men targeted not the Roman authorities but the local people who worked with them -- "collaborators" in today's parlance. The Sicari also invented a tactic still used by terrorists today: They murdered their victims in broad daylight and in front of eye witnesses. Their intent was to send a message to other would-be collaborators.

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