Appealing Cal/OSHA Citations:

A Board Member’s Perspective

Judith S. Freyman

Management Member

Cal/OSHA Appeals Board

Appeals Board Profile

History and Organization

Current Members:

Judi Freyman Management

Art Carter Labor

Ed Lowry Public

Dynamics of the Appointment Process

Political Climate

Appeals Board Profile

Appeals Board Process At-a-Glance

Filing Appeal

Expedited Hearings:

unabated serious, willful and repeat citations

Pre-hearing Conference and

Settlement

Appeals Board Process At-a-Glance

Hearing and Decision

Petition for Reconsideration

Decision After Reconsideration (DAR)

Writ of Mandate

The Facts of the Matter

2113 cases appealed in 2014

1251 cases with serious citations

139 expedited abatement proceedings

233 days average appeal duration

60-70% of employers not represented

by attorneys

More than 90% of cases settled before

hearing

Case Review: A Personal Focus

Due process for employers

Advancement of OSH in CA workplaces

Clear guidance for compliance

Appreciation for DOSH enforcement

challenges

Case Review: A Personal Focus

Practical solutions to address workplace

realities

Decisions should not supplant rulemaking

Consensus is the goal

Maximizing Your Appeal

Administrative Law Judge Observations

o Agree to uncontested facts or legal conclusions

o Concentrate on the issues, not the personalities

o Organize documents for presentation

o Ask the judge if you don’t know

how to do something at the hearing

Maximizing Your Appeal

Administrative Law Judge Observations

o Assist the judge in understanding the evidence

o Assume the judge has no expertise about the subject

o Prepare your witnesses: they should speak slowly, clearly and concisely

o Calmly state your objections

Maximizing Your Appeal

Board Member observations

o Show a commitment to OSH: robust safety program

o Promptly abate hazards

o Invest in the process

o Get knowledgeable and competent representation

o Be forthcoming

Recent Developments

Expedited Abatement Program:

results to date

Electronic update of

appeals process (OASIS)

Proposed revised rules of practice and

procedure

Recent Developments

Mandatory In-Person Settlement

Conference: pilot program

New approach for

resolving general

and regulatory

violations

Notable Decisions

BART Superior Court Case:

amendment of citations

Staffchex: dual employer doctrine

Harris Construction: due diligence for

controlling employers

Section 342(a) Cases: timely reporting

of fatalities and serious injuries