Last week, in Part 1 of this series, we discussed what you have to do if you
want to challenge an OSHA citation that you think is unfair. We noted that you
have only 15 working days to file a legal document called a "notice of
contest." We also pointed out that there's not much margin for error; not
only is the deadline short but it's strictly enforced.

Now let's look at how to create a proper notice of contest. There's also a
Model Notice in Tools that you can access if you're a SafetyXChange member.

How to Prepare the Notice

First of all, the notice of contest must be in writing. Telling an OSHA employee
over the phone or in person that you intend to challenge the citation isn't
good enough.

The regulations don't prescribe an exact format; nor are there any specific
forms you must fill out. It's okay to write the notice in the form of a letter
addressed to the director of your OSHA area office (whose name and address will
be listed on the citation). Like the model form in Tools, your notice should:

• Be dated
• List your company name, address and phone number (or that of the attorney filing the notice on your behalf)
• List the citation number (printed on the top right corner of the citation notice) and date

The body of the letter should spell out exactly what you're contesting. You
may contest one or more of the following:

• One or more specific violations
• One or more deadlines for correcting a violation (the abatement dates)
• One or more proposed penalties

You don't have to list your reasons for contesting the violation, deadline
or penalty. You'll get the chance to do that later at a hearing.

You should also list the date you got the citation, assuming you received it
after the date it was issued. This will clarify when the 15-working days deadline
for filing the notice of contest begins running. Sign the letter and list your
job title. Attach a copy of the citation to the letter. This will ensure that
OSHA suspends the violations, abatement deadlines and/or penalties contested
until after a hearing takes place.

How to File the Notice

You can file the notice by mail, fax or personal delivery within the 15-working
day deadline. It's a good idea to call the OSHA office after you send the notice
and before the deadline expires to confirm that it was received.

The notice only freezes the violations you contest. So if you're cited for
three violations and contest only two, the third one remains in effect. Moreover,
if you contest only the penalty amount not the abatement date, you still must
abate the violation by the deadline listed on the citation.

There's one more rule: You must contest the violation in good faith. Filing
a notice just to play for time to avoid fixing a violation or paying a penalty
isn't valid.

What Happens Next

Once the OSHA area director gets the notice of contest, assuming it's timely,
he or she forwards the case to a review commissioner. The case then goes to
a hearing before an Administrative Law Judge.

If you disagree with the Judge's ruling, you can ask for a further review by
the Occupational Safety Health and Review Commission (OSHRC). OSHA can do the
same if the ruling goes against the agency. OSHRC rulings may be appealed to
the U.S. Court of Appeals.

Last but not least, if you're cited by a state agency for a safety violation,
you must follow the state procedures for contesting violations. While most states
follow procedures similar to OSHA's, you need to check with your attorney or
state agency regarding its specific requirements.

The Canadian Perspective

The above article deals with the technical provisions of a U.S. OSHA law and isn't of much interest to Canadians. Here's something that is:

Norm Keith - bio

ENFORCEMENT TRENDS

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

Here are some interesting numbers to consider:

$50,000: The highest fine against an individual supervisor
for an OHS offense. It was imposed on a supervisor named Domenico Fantini in
connection with a trench collapse fatality at an Ontario construction site.
Fantini had originally been charged with 8 OHS violations and criminal negligence
under Bill C-45 before pleading guilty to 3 OHS offenses.

156: The number of workplace safety penalties and prosecutions
by the B.C. Workers' Compensation Board in 2002.

9: The number of OHS prosecutions brought by the Alberta Human
Resources and Employment Commission in 2003.

618: The number of convictions secured by the Ontario Ministry
of Labour for OHS offences in 2003.

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.

Editor's Note

WORKPLACE SAFETY AROUND THE WORLD

SafetyXChange members are going to be treated to a free, one-of-a-kind world
tour. Each Monday, we will be stopping to take a brief look at the workplace
health and safety laws and systems of different countries around the world.
Our tour guide is Norm Keith of Gowlings in Toronto. In addition to being arguably
Canada's leading OHS attorney, Norm is a prolific author and speaker. One of
his recent projects was a presentation to the American Society of Safety Engineers
on international OHS laws. The installments in this series are based on his
presentation and the extensive research that went into it.

So, buckle up and enjoy the tour. Our first stop: China.

HEALTH & SAFETY LAW TRAVELOGUE

China

The People's Republic of China describes itself as a worker's paradise. So
it is more than a little ironic that China does not have a comprehensive OHS
statute. In fact, its workplace health and safety laws impose no legal duties
on supervisors, employers and owners. All responsibility for ensuring a
healthy and safe workplace falls on the shoulders of the workers themselves.
Regulatory enforcement is sporadic at best; criminal enforcement is nonexistent.

Does the system work? According to the World Bank, China has 150,000 workplace
fatalities each year. It looks like workplace health and safety could use improvement
in the worker's paradise.

Health & Safety Profile: China

Population: 1.3 billion
Labor Force: 778 million
Life Expectancy: 71.96 years
GDP per Capita: $5,000
Government Type: Communist State
OHS Legislation: No comprehensive OHS statute, coal mine safety
regulation, occupational diseases and pressure vessels statutes

(Statistics are from 2004)

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