On November 6, 2019, the United States Court of Appeals for the Fifth Circuit handed employers a rare reprieve from a late-filed notice of contest when it found “excusable neglect” was to blame for Coleman Hammons Construction Company’s late notice of contest. The Fifth Circuit’s ruling reversed the Occupational Safety and Health Review Commission’s ruling and will now permit Coleman to contest almost $70,000.00 worth of citations, including one willful citation.
The Occupational Safety and Health Act gives employers 15 working days to contest OSHA citations. Coleman filed its notice of contest to a $70,000.00 willful citation 33 working days after receipt of the citation, 18 working-days late.
An untimely notice of contest is usually fatal to the employer. The OSH Act imposes severe consequences for the tardy employer: failure to file a notice of contest within fifteen working days of receipt results in the citations becoming “a final order not subject to review by any court or agency.” 29 U.S.C. § 659(a).
But, the employer may get relief if it can show its failure to timely contest a citation was the result of “excusable neglect”. “Excusable neglect” is a legal term found in standard civil cases, and essentially amounts to whether the employer as a good enough justification for its delay. In late-filing notice-of-contest cases, that question turns on whether the delay resulted from “a single instance of unforeseen human error.” Coleman demonstrated such an unforeseeable error when it mustered evidence of strong mailroom procedures and demonstrable history of timely contesting citations. Thanks to its usually-dependable internal processes, Coleman saved itself from forfeiting its rights to contest a $70,000.00 willful citation.
Coleman’s internal mail handling processes probably look familiar. Mail routes through several employees and lands on several desks before getting to its ultimate destination. The company’s office manager would open the incoming mail and circulate it appropriately to staff within the office. When the company receives OSHA-related mail, the office manager directs the mail to the superintendent of the relevant project. Coleman’s system had always worked before. In fact, Coleman routinely contested OSHA citations. Yet in this case the unforeseen occurred—Coleman misplaced an OSHA citation:
The superintendent promptly telephonically informed OSHA of the company’s hope to resolve the problem and filed a notice of contest only 18 working days after the deadline.
Under these facts, Coleman’s response seems like prompt and reasonable. But the Occupational Safety and Health Commission did not think so. In a split-decision, the Commission reasoned that because Coleman’s employees were at fault for the unopened parcel of mail, Coleman “controlled” the circumstances causing the untimely response.
Fortunately for Coleman, the Fifth Circuit concluded that employers have more leeway—especially when they have a demonstrated history of timely response:
Contrary to the Commission’s finding of inadequate procedures, the company showed that all mail is ordinarily received, opened and distributed by the office manager or the company controller. Far from being inadequate, the procedures enabled the company to handle seven previous OSHA citations and in at least three instances, to contest them by informal means within the statutory time limit. This track record demonstrates the company’s usual procedures were sufficient to respond to OSHA matters. In this single deviation from the procedures, however, the OSHA citations here were not received or opened by the usual employees. That the project supervisor did not see the citations on his desk until after the deadline and after his return from out of town was also not shown to be a common occurrence, indeed it was apparently unique. The circumstances prove neglect of a very minor sort that had minimal consequences in the context of the excusable neglect inquiry.
The Fifth Circuit’s decision also noted that OSHA actually admitted that Coleman had meritorious defenses to the alleged citations. The Fifth Circuit ultimately concluded that the Commission’s erred when it narrowly focused on “control” and “inadequate” mail handling procedures, and granted Coleman the right to contest the citations.
This case serves as a valuable reminder that employers and safety managers should be conscientious as to how their facility or worksite receives and processes OSHA citations—especially if an OSHA inspection occurs at a remote worksite.by