Upon receiving an OSHA citation from federal OSHA, an employer has 15 working days from receipt of the Citation and Notification of Penalty to file a written Notice of Contest. 29 U.S.C. § 659(a). But if an employer misses the 15-day window to file a Notice of Contest, it may be able to file a late notice.
Courts have allowed employers to file a late Notice of Contest if the delay in filing was due to “excusable neglect.” In determining whether an untimely filing was due to excusable neglect, courts take into account all relevant circumstances surrounding the party’s filing delay. Northwest Conduit Corp., 18 O.S.H. Cas. (BNA) ¶ 1948 (O.S.H.R.C. Sept. 30, 1999) (citing Pioneer Investment Services v. Brunswick Assoc., 507 U.S. 380, 395 (1993)). Without limitation, a few factors the Supreme Court has considered in this analysis are: (1) the danger of prejudice; (2) the length of delay and its potential impact on judicial proceedings; (3) the reason for the delay; (4) whether the delay was within the reasonable control of the movant; and (5) whether the movant acted in good faith. Pioneer, 507 U.S. at 395.
- Good Faith: The good faith factor can be met by showing that the party acted promptly upon discovering the citation. George Harms Const. Co. v. Chao, 371 F.3d 156, 164 (3d Cir. 2004). In George Harms, a construction company missed its fifteen-day deadline to file a notice of contest after it misplaced two OSHA citations. Id. at 158-59. More than a month after the notice of contest was due, OSHA issued the company a delinquency notice. Id. at 159. Nine days after the delinquency notice was issued, the company’s president called OSHA and contended that he had no record of the citations but wanted to contest them. Id. Ultimately, the court found that the good faith factor weighed in favor of the construction company because it acted quickly upon filing a notice of contest discovering the fact of the citation. Id.
- Prejudice: As to the prejudice to parties or judicial proceedings factors, the Commission has recognized “it is usually a given that there is ‘a lack of prejudice to the Secretary or to the interests of efficient judicial administration, combined with a lack of bad faith by the employer.’” George Harms, 371 F.3d at 164 (citing CalHar Constr. Inc., No. 98–0367, 2000 OSAHRC LEXIS 28, *6 n. 5). In Pioneer, the Supreme Court held that a respondent’s neglect was excusable due to a lack of showing of prejudice to the opposing party or judicial proceedings. 507 U.S. at 398. The Court reasoned that the lack of prejudice to the opposing party or to the interests of efficient judicial administration, combined with good faith of the respondents, weighed strongly in favor of permitting the tardy claim. Id. Ultimately, the Court allowed the late filing. Id.
- Reason for Delay and Control: As to the remaining factors, the reason for the delay and whether the party had control over the delay, a party seeking to file a late notice of contest must provide sufficient evidence to support its reasoning for the filing delay. Arch of Kentucky, Inc. v. Dir., Office of Workers’ Comp. Programs, 556 F.3d 472, 478 (6th Cir. 2009); George Harms, 371 F.3d at 163. In Arch of Kentucky, the Sixth Circuit rejected an argument that personnel problems justified a late filing. 556 F.3d at 478. The court explained that there were no affidavits or other evidence in the record that would provide some detail to the vague assertions of a personnel problem. Id.
A single instance of unforeseen human error can excuse a party’s neglect so long as there is evidence to support that such error was in fact, a single instance. In George Harms, the Third Circuit held that a company’s negligence in misplacing its OSHA citations was excusable. 371 F.3d at 165. In its analysis, the court was persuaded by testimony from the company’s president, who testified that he had “never failed to receive any mail” for six years, and provided details supporting that their mail-handling procedures are reliable. Id. at 164-65. Ultimately, the court explained that based on this testimony, the company’s otherwise reliable mail-handling procedures demonstrated that the loss of the citations was “an unforeseeable human error beyond its reasonable control.” Id. at 165.
However, in stark contrast, the mishandling of incoming mail without having a uniform mail-handling system may not rise to the level of excusable neglect. Coastal Horizontal, Inc., 19 O.S.H. Cas. (BNA) ¶ 1303 (O.S.H.R.C.A.L.J. Nov. 17, 2000) In Coastal Horizontal, a company filed a late notice of contest, reasoning that the delay was caused by a mishandling of mail. Id. However, the Commission denied such reasoning and explained that it has “consistently denied relief to employers whose procedures for handling important documents are to blame for untimely contests of OSHA citations.” Id. As such, because the company failed to provide evidence of an orderly office procedure for handling important mail, the reason for the delay was one that was “firmly within its reasonable control.” Id. Ultimately, the untimely contest was dismissed. Id.
For help with OSHA matters or filing and pursuing a late notice of contest, please call (312) 894-3322 or fill out our contact form.