Contesting a Safety Citation Before the Review Commission

A citation arrives with a penalty, a classification and an abatement date, and it looks like a final decision. It is a proposal — but only for fifteen working days, after which it becomes a final order that no tribunal can revisit.

Reading what arrived

Each citation item states the standard alleged to have been violated, a description of the condition, a classification and a proposed penalty, plus an abatement date by which the condition must be corrected.

Classification matters more than the penalty on the citation in front of you, because a serious citation today is what makes a similar citation in three years a repeat with multiplied penalties. That is why classification is frequently the substance of a settlement even where the penalty is not.

The fifteen days

The period runs from receipt of the citation and is measured in working days. A notice of contest filed within it preserves every argument; one filed a day late preserves none.

The employer must also post the citation at or near the place of the alleged violation for three working days or until the violation is corrected, whichever is longer. Failure to post is a separate violation and an unnecessary one.

The informal conference

Requested from the area director, held within the contest period, and the route by which most matters end. The director can vacate items, reclassify, reduce penalties, extend abatement dates and enter a settlement agreement.

What makes a conference productive:

1. Evidence the inspector did not have — training records, maintenance logs, purchase orders for guarding, disciplinary records showing enforcement of a rule.
2. Evidence of abatement already completed, with photographs and dates.
3. A specific proposal: which items are accepted, which are contested and why.
4. A realistic abatement schedule where the correction genuinely takes time to procure.

Arguing that the standard is unreasonable achieves nothing here. Showing that the condition did not exist as described, that employees were not exposed, or that the violation was the result of unpreventable employee misconduct despite an enforced rule, achieves a great deal.

The defenses that carry weight

The agency must prove four things for each item: that the standard applies to the cited conditions, that it was not met, that employees were exposed to the hazard or had access to it, and that the employer knew or with reasonable diligence should have known. Each is a place a citation can fail, and knowledge is the one employers overlook. A supervisor's knowledge is generally imputed to the employer, so a condition created and concealed by one worker on a single shift stands very differently from one visible on the shop floor for weeks.

Beyond the elements sit the recognized affirmative defenses, which the employer must prove rather than merely assert:

• Unpreventable employee misconduct — a work rule adequate to prevent the violation, effectively communicated to employees, with steps taken to discover breaches, and enforcement when they are found. The fourth element is where most attempts fail: a rule that has never produced a disciplinary record reads as a rule nobody enforced.
• Infeasibility — compliance was technically or economically impossible in the circumstances, and an alternative form of protection was used instead.
• Greater hazard — compliance would have created a larger risk than the condition cited, and a variance was either sought or unavailable.

Each defense turns on documents that existed before the inspection. Contesting on the merits without one of them is an expensive route to accepting the citation.

If the case proceeds

A contested case goes to an independent review commission, is assigned to an administrative law judge, and proceeds much like civil litigation: pleadings, discovery, a hearing with witnesses and exhibits, and a written decision. The agency bears the burden of proving the violation, employee exposure and employer knowledge.

The judge's decision may be reviewed by the commission on its own motion or on petition, and from there to a court of appeals. Cases take months to years, which is why the settlement route resolves the overwhelming majority.

One feature of the forum surprises employers who contest on the money alone: the judge assesses the penalty afresh rather than reviewing the proposed figure, weighing the gravity of the violation, the size of the business, the employer's good faith and its enforcement history. That assessment can land above the proposed amount as well as below it. The exposure is worth pricing before filing, because the real cost of contesting a modest penalty is rarely the penalty and almost always the expense of reaching a hearing on it.

Where employees fit

Employees and their representatives may elect party status in a contested case, and may contest the reasonableness of the abatement period — the only aspect of a citation employees can challenge directly. They cannot contest the failure to issue a citation, nor the penalty.

That limitation is why the complaint stage is where employee influence is greatest: a specific, signed complaint shapes what is inspected and therefore what is cited. Once a citation issues, the employee's remaining lever is the abatement timetable.

Where the underlying issue produced injury rather than only exposure, the safety case and the compensation case run in parallel and independently — a citation is not required for a claim, and it is not conclusive in one either, though it can be significant evidence where a third party is also being pursued.

Employers on shared sites should also read the citation for who else was cited. Where a staffing arrangement is involved, responsibility is allocated between the agency and the host, and contesting without knowing which theory the citation rests on wastes the fifteen days.