North Carolina Court Says OSHA Appeal Requires Clear Written Request From Employer

Parker Poe Adams & Bernstein LLP

Parker Poe Adams & Bernstein LLP

If an employer receives a citation and notice of penalty from the North Carolina Occupational Safety and Health Administration, that citation contains a number of important options and associated time frames. Earlier this month, the North Carolina Court of Appeals concluded that the deadlines and procedures contained in the citation must be carefully followed or the employer loses its right to contest the citation.

In Lost Forest Dev, LLC v. N.C. Commissioner of Labor, the employer requested an informal conference in response to an OSHA citation. The matter was not resolved through the conference, and the employer confirmed its intent to appeal verbally – but did not confirm through email until 15 months after the appeal deadline passed. The employer never sent a letter formally contesting the citation. Regardless, OSHA accepted the email as notice and forwarded the matter to the OSHA Review Commission for processing. OSHA later moved to dismiss the appeal as untimely, and the Review Commission agreed.

On appeal, the employer argued that its emails served as a written appeal of the citation and, regardless, OSHA’s initial acceptance of this as an appeal waived the agency’s right to claim an insufficient appeal. The N.C. Court of Appeals disagreed, affirming dismissal of the appeal. The court noted specific language in the OSHA rules and citation document requiring that a formal letter of contest be submitted. OSHA procedures require that any purported appeal be forwarded to the Review Commission, and this action did not serve as an acknowledgement of its validity or waiver of the regulatory requirement.

The Court of Appeals also rejected the employer’s claim that it should excuse any error on the employer’s part because it was not represented by counsel during the initial stages of the attempted appeal. The case did not discuss whether the decision would be the same if the employer sent the email before expiration of the 15-day appeal period. This decision demonstrates the importance of strict adherence to procedures and deadlines contained in OSHA citations. Failure to observe these requirements may prevent the appeal of a citation, regardless of the merits behind such an appeal.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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