What is an appeal?
If an employer disagrees with a citation they have received from the California Division of Occupational Safety and Health, they may appeal the citation to the California Occupational Safety and Health Appeals Board. The disagreement can stem from any aspect of the citation, including the issuance of the citation itself, the classification of the violation, the penalty, or the abatement requirements.
An employer may also appeal a notification of a failure to abate, a special order, or an order to take special action.
The rules and regulations that guide employers on filing and pursuing appeals are located in the California Code of Regulations, title 8, commencing with section 345.
When do I have to file an appeal for it to be considered on time?
An employer has 15 working days from receipt of a citation to file an appeal. If an appeal is filed after the deadline of 15 working days, the Appeals Board may decide to accept the appeal only upon a showing of good cause for late filing. Good cause for a late appeal generally means circumstances beyond one's control, which could not have been reasonably anticipated. The rules for filing an appeal or a late appeal are located in California Code of Regulations, title 8, sections 359 and 359.1.
What is the difference between the Division of Occupational Safety and Health and Occupational Safety and Health Appeals Board?
The Division of Occupational Safety and Health and the Occupational Safety and Health Appeals Board are separate, independent agencies.
The Division of Occupational Safety and Health, also known as Cal/OSHA, enforces California’s occupational safety and health standards by issuing citations, orders, and notices; by proposing civil penalties; and by specifying abatement requirements and dates to correct unsafe conditions. The division provides a separate service with free, on-site consultations to employers, along with advice to employers and employee groups to help prevent occupational injuries and illnesses. The Consultation Service does not issue citations.
The Occupational Safety and Health Appeals Board (OSHAB) is authorized to conduct hearings, make findings of fact, and render decisions on appeals of Division of Occupational Safety and Health citations and other actions alleging violations of the regulations governing workplace safety. The Appeals Board issues written orders and decisions explaining the disposition of appeals.
Where do I file my appeal?
The answer depends on whether you are filing paper forms or online using OASIS.
Appeals filed via paper form must include copies of all citations issued, a copy of the Notification of Penalty, and a copy of the Notice of Proposed Penalties. A separate page two of the paper form must be completed for each citation and item that is being appealed. Please duplicate page two as necessary. The completed paper form and accompanying documents must be sent to:
The California Occupational Safety and Health Appeals Board at 2520 Venture Oaks Way, Suite 300, Sacramento, CA 95833.
Appeals may also be filed online at www.dir.ca.gov/OSHAB. You must create an OASIS account by entering an email address and password. Once the account is established, you may log-in and follow the instructions online to file the appeal.
Do I have to file my appeal online or may I still file a paper form?
An employer can choose either method to file an appeal. A paper form is available for download and printing at www.dir.ca.gov/OSHAB.. The completed form must be sent by postal mail to the California Occupational Safety and Health Appeals Board. Alternatively, an employer can create an account, log in to that account and complete the electronic appeal form online. An electronic appeal must be submitted to the California Occupational Safety and Health Appeals Board online.
How long will it take to complete the appeal process and receive a decision from an Administrative Law Judge?
Generally, the appeals process can take several months to reach completion. Each case is unique and this time frame can be affected by factors specific to each case. Cases in which the employer and the division can achieve a settlement can be completed sooner than those cases which require a hearing before an Administrative Law Judge. Cases which go to hearing may require a few more months before the parties receive a decision from an Administrative Law Judge depending on the length of hearing and the complexity of the issues to be considered.
Will I be required to hire a lawyer to represent me?
An employer may be represented by any person they authorize to represent their interests during the appeals process. However, many times matters under appeal require specific knowledge related to this area of administrative law. As such, an employer may elect to have a lawyer represent its interests throughout the appeals process.
Am I required to have a hearing with an Administrative Law Judge?
No. You may informally resolve your case by contacting the district manager from the office of the California Division of Occupational Safety and Health that sent you the citation(s). If both you and the district manager agree on terms of settlement, the district manager will assist you in completing the settlement. If the parties are not able to achieve a settlement, a hearing will be conducted by an Administrative Law Judge. You will know when a hearing is set because you will receive a Notice of Hearing.
What is an Administrative Law Judge?
"Administrative Law Judge" is any person appointed by the Appeals Board pursuant to Labor Code sections 6605 and 6607 as a hearing officer to conduct hearings and decide matters. An Administrative Law Judge will be assigned to your case when the case is docketed. A docketed appeal is one that meets all of the requirements of a complete and timely appeal.
Am I required to settle my case informally rather than going to a hearing?
Although the vast majority of appeals settle before hearing, an employer may opt to have the matter heard on the merits at a formal hearing. There is no requirement compelling employers or the California Division of Occupational Safety and Health to settle their disputes before hearing.
Once an Administrative Law Judge is assigned to my case, may I contact the judge directly?
Generally speaking, the answer is no. Pursuant to the California Code of Regulations, title 8, section 352, ex parte communication with the Administrative Law Judge is prohibited. An ex parte communication is a written or verbal communication with the Administrative Law Judge assigned to your case without including the opposing party in your communication. If you are writing (via U.S. mail or email) to the Administrative Law Judge you must also provide a copy of the writing to all other parties to the case at the same time. If you are communicating with the judge assigned to your case by telephone, this communication must be a conference call where all parties to the case are represented in the telephone call.
May I email the Appeals Board or the Administrative Law Judge assigned to my case?
The Appeals Board does not accept service of documents by email. Case documents such as motions or briefs must be filed by mailing them to the Appeals Board or uploading them through the OASIS internet portal. Sometimes an Administrative Law Judge may request a courtesy copy of a brief or other document by email, however, that method of delivery is for the judge’s convenience and not official service on the Appeals Board. Official service must be by postal mail, personal delivery or delivery through the OASIS Internet portal. Please refer to California Code of Regulations, section 355.4.
Settlement terms are often submitted through email, although this must only be done with all parties copied on the email. When one party fails to copy all other involved parties to the email outlining settlement terms, the judge will not address the settlement until all parties have been served. The district manager with whom you settle is knowledgeable at guiding the parties in the correct method of properly submitting settlement terms to the assigned Administrative Law Judge.
When filing documents with the Appeals Board, am I required to serve those documents on the other parties?
Yes. Once the appeal is filed with the Appeals Board and the appeal is given a docket number, any documents filed with the Appeals Board must also be served (in other words, copied to) the other parties in the matter.
What is a Declaration of Service? (a.k.a. Proof of Service)
A Declaration of Service (sometimes called Proof of Service) is a statement made by the declarant (the person signing the document) indicating that he/she is at least 18 years old, not a party to the action, describing the documents mailed, emailed or otherwise served on a certain date, under penalty of perjury. On the Declaration of Service, the serving person must include his/her mailing address and list the names and addresses of those persons or parties who received a copy of the document.
How do I request a language interpreter?
A party must request an interpreter in writing. The request must be made at least 10 working days prior to an event such as a status conference, prehearing conference or hearing at which an interpreter is needed. The language to be spoken by the interpreter must be stated in the written request. A party may also make a written request for a sign language interpreter, if needed. See California Code of Regulations, title 8, section 376.5.
Are hearings recorded?
The official record of the hearing is arranged by the Appeals Board through the means of an electronic device, or by a court reporter arranged by the parties. A party desiring the presence of a court reporter must make its own arrangements pursuant to California Code of Regulations, title 8, section 376.7. A proposed amendment to section 376.7 will allow a hearing reporter to produce transcripts that become the official record of the hearing instead of the recording. However, the cost of providing a transcript to the California Occupational Safety and Health Appeals Board shall be paid by the parties and not the Appeals Board.
Can I have a copy of the recording?
Either party is entitled to a copy of the recording at no charge. A written request must be sent to the California Occupational Safety and Health Appeals Board, 2520 Venture Oaks Way, Suite 300, Sacramento, CA, 95833. Any request must include the name of the case (employer), the inspection number and the date(s) of hearing. An electronic copy of the hearing record will be transmitted to the person making the request by email utilizing a service that allows the transfer of large file by email. If the requestor does not have email, state this fact in your correspondence to the Appeals Board and special arrangements will be made to ensure you receive a timely copy of the hearing recording.
If I choose to file my appeal online using the Internet portal, will I receive a receipt indicating when I filed my appeal?
An appeal successfully submitted through the internet portal will result in the computer system providing you with a printable receipt that includes the date and time the appeal was uploaded and detail about what to expect next in the processing of your appeal.
If I don’t have time to complete my electronic appeal, can I save my work and complete it at a later time?
Yes, your work will be saved and you will be able to return to it. Your appeal will not be considered by the Appeals Board until it is completed and officially submitted. There is a clearly marked button that must be selected to submit the appeal for consideration.
If I submit my electronic appeal form after 11:59 p.m., on what date will my appeal be deemed filed?
Appeals submitted after 11:59 p.m. on a weekday or over the weekend will be deemed filed the next business day.
Does the Appeals Board have a help desk to assist me in filing my appeal?
Yes, the Appeals Board has an information and assistance officer who is available Monday through Friday between 8:00 a.m. and 5:00 p.m. PST at 916-274-5751. The information and assistance officer is familiar with the requirements for filing an online appeal and can offer assistance. Due to the volume of calls, it may be necessary to have an information and assistance officer return your telephone call at a time convenient to you.
If I have filed an appeal and later decide that I would like to pay the penalty and withdraw my appeal, what is the process?
An employer who has filed an appeal may request to withdraw that appeal by sending a letter to the Occupational Safety and Health Appeals Board requesting that the appeal be withdrawn. You may also log into the Internet portal, follow the online directions and file a request to withdraw an appeal. An appeal may be dismissed at any time pursuant to California Code of Regulations, title 8, section 364.
How do I pay a penalty that is determined to be final?
Upon receipt of the final order or decision (which is accompanied by a summary table), an employer can mail a check to the Appeals Board’s accounting department directly. Include the inspection number and company name in the memo section of the check. Information on how to pay penalties will also be located in the summary table. Penalties may now be paid online and the instructions for accomplishing this are also located in the summary table.
What happens if my appeal is not filed on time?
If you fail to file the appeal on time, you may submit a request to file a late appeal in writing and state the reasons for the tardiness. A declaration signed under penalty of perjury and a proof of service must accompany the late appeal request. If an appeal is filed later than 15 working days from employer receipt of citation(s) and is otherwise complete, information on requesting approval to file a late appeal will be sent to the employer.
What must I do if I receive a Notice of Incomplete Appeal?
A Notice of Incomplete Appeal is a document sent to an employer who has filed an incomplete appeal or otherwise has expressed intent to appeal within 15 working days from the date the citations were received by the employer. The Notice of Incomplete Appeal will instruct the employer about what further information is needed to complete the appeal. Please read the Notice of Incomplete Appeal carefully to determine what missing information is needed, where to send the missing information, and when that information must be provided. The Appeals Board allows 20 calendar days to respond to a Notice of Incomplete Appeal. Failure to provide the missing information on time may result in the dismissal of your appeal.
How do I request permission to file a late appeal?
The late appeal process is best described in California Code of Regulations, title 8, section 359, subdivisions (b) and (c). Generally, when an employer wishes to file a late appeal, it must demonstrate good cause for extending the period during which an appeal may be filed. Employers must request a late appeal by writing to the Appeals Board with sufficient facts to establish a reasonable basis for the late filing. Additionally, the employer must file a declaration certifying that any facts stated as a justification for a late appeal are based upon the personal knowledge of the person writing the document.
Where can I read the California Code of Regulations that will help me understand the requirements and procedures for filing and completing an appeal?
The California Code of Regulations is published by the State of California. The regulations governing proceedings before the California Occupational Safety and Health Appeals Board are published in the California Code of Regulations, title 8. Relevant portions of title 8 can be located on the Department of Industrial Relations website at: www.dir.ca.gov/OSHAB. Under "Other Information" click on the link "Laws and Regulations."
What happens if I disagree with a final order or decision?
The aggrieved party may file a Petition for Reconsideration, stating the reasons for disagreement with the Administrative Law Judge's order or decision. Pursuant to Labor Code section 6614, a Petition for Reconsideration must be filed with the Appeals Board and a copy served on the opposing party within 30 days of the service of any final order or decision. When a Petition for Reconsideration is filed in a timely manner, the Appeals Board will determine whether to grant reconsideration and address the merits of the arguments presented in the petition.
Does a Petition for Reconsideration have to meet any special requirements?
Yes. A Petition for Reconsideration must be verified. This means that the person signing the petition must state that under the penalty of perjury that the petition is true based on the personal knowledge of the person signing the petition.
Also, the Petition for Reconsideration must be based on the grounds for reconsideration located in Labor Code section 6617. Those grounds are:
- that the Appeals Board acted without or in excess of its powers;
- that the order or decision was procured by fraud;
- that there is newly discovered evidence that could not have been produced at the hearing; and
- that the findings of fact do not support the order or decision.
The petition should not exceed 25 pages in length.
What is a Decision After Reconsideration?
If the Appeals Board grants reconsideration after an aggrieved party has filed a Petition for Reconsideration, the board will consider all of the arguments in the petitions for reconsideration and write their findings and analysis in a document entitled a Decision After Reconsideration. The board may also grant reconsideration on its own motion, when no party has filed for reconsideration. This process often results in the Appeals Board rendering a Decision After Reconsideration.
Where can I research and review Decisions After Reconsideration?
Decisions After Reconsideration are posted on the Appeals Board’s website at: www.dir.ca.gov/oshab/DAR_Decisions. Decisions After Reconsideration are also published in West Law and LexisNexis which require a subscription to access. Many local county law libraries will have other resources available to research Cal/OSHA law.
I received a demand letter requesting that I pay penalties when my case is still under appeal. What action should I take?
Please telephone the Appeals Board at 916-274-5751 for an explanation of why this happens and what course of action you should take.
Where are hearings held?
Hearings are currently being scheduled in the following locations:
- Van Nuys
- West Covina
- San Diego
The location where your case will be heard is selected based upon California Code of Regulations, title 8, section 376. Generally, the venue for a hearing will be "…as near as practicable to the place of employment where the violation is alleged to have occurred."
What do I do if I receive a Notice of Status Conference, Notice of Prehearing Conference, or a Notice of Hearing and I cannot attend?
If you have good cause for not being able to attend a hearing, you must immediately petition the Appeals Board for a continuance. The rules governing continuances are located in California Code of Regulations, section 371.1. Generally you must state in your petition why you cannot attend a conference or hearing; provide dates when you will be available for the conference or hearing; contact your opponent to see if he or she agrees to the continuance and record your opponent’s response in the petition. The petition, like all documents filed with the Appeals Board, must be sent to your opponent when it is served to the Appeals Board.
What is an expedited proceeding?
Expedited proceedings are defined in California Code of Regulations, title 8, section 373. Generally, they are cases that are classified by the Division of Occupational Health and Safety as serious or willful. If these cases are appealed and abatement was not possible at the time of docketing, the case is docketed in an expedited process. An expedited case must be calendared for a status conference within 30 days of the date the case is docketed. Within 60 days from the docket date, a prehearing conference must be calendared, and a one-day hearing shall be held within 60 days of the prehearing conference. Once docketed, a standing discovery order goes into effect, which requires all parties to immediately exchange information about the case and to continue exchanging information on an ongoing basis.
Can cases that begin as expedited be removed from the expedited process?
Yes, but only if the parties agree that the hazards that gave rise to the citations have been abated. If there is an agreement on abatement, the case can be removed from the expedited track with the assigned Administrative Law Judge's approval.
What is the difference between a regulatory, general or serious citation?
California Code of Regulations, title 8, section 334 defines regulatory, general and serious violations generally as follows:
"(a) Regulatory Violation – is a violation … that pertains to permit, posting, recordkeeping, and reporting requirements as established by regulation or statute." An example of a regulatory violation would be a failure to obtain a permit when a permit is required.
"(b) General Violation – is a violation which is specifically determined not to be of a serious nature, but has a relationship to occupational safety and health of employees."
"(c) Serious Violation -- There shall be a rebuttable presumption that a 'serious violation' exists in a place of employment if the division demonstrates that there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation."
These are the general definitions. Please consult the text of the regulation for more detailed information.
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