For the first time in nearly 15 years, the Occupational Safety and Health Review Commission is set to adopt comprehensive revisions to the Rules of Procedure governing cases coming under its jurisdiction. The Review Commission hears appeals to citations issued by the Occupational Safety and Health Administration (OSHA). Citing "technological advancements" and the "evolution of practice" since the last revisions in 2005, the revised rules are generally aimed at providing more clarity to the parties and appear to closely track recent changes to the Federal Rules of Civil Procedure.
These revisions are set to take effect on June 10, 2019, and will apply to all cases filed on or after that date. Employers are therefore encouraged to become familiar with the changes now to better prepare for citations that may be contested in the coming months. While the revisions are not groundbreaking, they will surely alter the nature and course of proceedings before the Review Commission. Perhaps most relevant to employers and Review Commission counsel, the new rules impose a mandatory electronic filing requirement for most parties and remove the requirement for settlement approval from Review Commission judges. Minimum amounts for cases referred to mandatory settlement proceedings have also been increased. Each of these rule changes is discussed briefly below.
Rule 8 – Mandatory Electronic Filing: Beginning June 10, 2019, electronic filing will be mandatory for all documents filed with the Review Commission for parties represented by counsel or other non-attorney representatives. Revised Rule 8(c), 84 FR 14555, 14561. The deadline for documents filed electronically will be 11:59 p.m. in the time zone of the receiving commission office. Revised Rule 4(a)(4)(i), 84 FR 14559. Because the Review Commission "cannot guarantee the confidentiality of documents filed in the E-File System," however, revised Rule 8(c)(5) precludes electronic filing of various confidential or privileged information such as information covered by protective seal, documents submitted for private review by the judge and confidential settlement documents. Moreover, all sensitive information (e.g., Social Security numbers, driver's license numbers, birthdates, medical information, etc.) will need to be redacted prior to submission. Revised Rule 8(c)(6). This new e-filing requirement thus appears very similar to e-filing in federal courts using the electronic case filing system and should prove to be a convenient update for employers and their attorneys.
Rule 100 – Settlement Approval: The revised rules no longer contemplate approval from a commission judge to finalize settlement agreements. 84 FR 14557. "Rule 100 has been extensively revised to reflect that the Commission has no authority to approve the contents of settlement agreements." Id. Parties familiar with Review Commission proceedings well know that the presiding judge must currently approve settlements even in cases in which the parties are represented by counsel. Under the rule changes, the parties will now jointly submit a notification to the judge that a settlement has been reached and specify certain information, such as any remaining contested items and whether the withdrawal of a notice or petition is with prejudice. See revised Rule 100(b), 84 FR 14575. Despite most commission judges currently employing a hands-off "rubber stamp" approach to settlement approvals, revised Rule 100 should provide parties with an increased sense of autonomy and clarity during settlement negotiations moving forward.
Rule 120 – Mandatory Settlement Proceedings: The current rules require parties to participate in mandatory settlement conferences when the employer contests proposed penalties of $100,000 or more. Rule 120(b)(1). As of June 10, 2019, however, this amount is being raised to $185,000 and will continue to be "periodically and proportionally adjusted upon consideration of the penalty increases required by the Inflation Adjustment Act" of 2015. 84 FR 14558. This revision stems from ongoing changes that are increasing the maximum penalties for OSHA violations as required by the Inflation Adjustment Act. 84 FR 14557. The Review Commission has thus raised the threshold amount to avoid an overload of cases subject to mandatory settlement proceedings. Id. Importantly, revised Rule 120 also reinforces the confidentiality of information presented during settlement proceedings and instructs the settlement judge to issue orders to protect confidentiality. Revised Rule 120(d)(3), 84 FR 14557. Employers are cautioned, however, that revised Rule 120(d)(3)(iv) explicitly recognizes that documents and factual information disclosed in settlement proceedings may be obtained in subsequent litigation if properly obtained via discovery or subpoena. Therefore, employers and their attorneys should remain cognizant of revised Rule 120's evolving minimal thresholds and the potential impact of mandatory settlement proceedings on future litigation.
Conclusion: On balance, it appears most of the revisions to the Rules of Procedure are aimed at modernizing and clarifying proceedings before the Review Commission. But while changes like those discussed above are promising, they do not affect critical OSHA deadlines prior to a matter coming before the Review Commission. For example, the longstanding 15-working-day deadline upon receipt of citations to conduct the informal conference, correct and pay violations, or file a notice of contest has not been altered. Nevertheless, employers and their counsel are encouraged to become familiar with how these revisions may affect the contest of citations that may come before the Review Commissions after June 10, 2019. For the full text of the rule changes, see 84 FR 14554, available here.
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