Hearing examiners powers and duties

A hearing examiner has broad powers needed to conduct a fair, full, and impartial hearing, including administering oaths, receiving relevant evidence, regulating discovery and the hearing's course, ruling on procedural matters, holding settlement conferences, inspecting workplaces, and deciding matters in accordance with the Act and the Administrative Procedure Act. See the full list of powers in 1905.22(a).

• These specific powers are enumerated in 1905.22(a)(1)–(9).
• Use these powers to ensure hearings are fair and orderly and that the record is complete for any later review.

Yes. A hearing examiner may administer oaths and affirmations to witnesses and parties as part of their authority to conduct a fair hearing, as stated in 1905.22(a)(1).

• Administering oaths helps ensure testimony is part of the official record and subject to penalties for false statements.

A hearing examiner is authorized to rule upon offers of proof and to receive relevant evidence necessary for a full and fair hearing, per 1905.22(a)(2).

• “Relevant evidence” means evidence that reasonably tends to make a fact at issue more or less probable.
• The examiner may exclude evidence that is irrelevant, privileged, or would unduly disrupt the hearing process.

Yes. A hearing examiner may provide for discovery and determine its scope, including setting reasonable limits and procedures, under 1905.22(a)(3).

• The examiner controls discovery to balance the parties' need for information with the need to avoid unnecessary delay or burden.

Yes. A hearing examiner may make, or cause to be made, an inspection of the employment or place of employment involved in the hearing, as authorized by 1905.22(a)(7).

• Inspections can help the examiner evaluate disputed facts and ensure the record accurately reflects workplace conditions.

No, not generally. Except for ex parte matters, a hearing examiner may not privately consult a person or a party on any fact at issue unless all parties have notice and an opportunity to participate, as required by 1905.22(b).

• If an examiner needs outside technical assistance, the procedure requires notice to the parties so they can participate or respond.

If a hearing examiner deems themselves disqualified to preside over a particular hearing, they must withdraw by giving notice on the record directed to the Chief Hearing Examiner, as stated in 1905.22(c)(1).

• The withdrawal should be recorded on the hearing record so parties and the Chief Hearing Examiner are formally notified.

A party may file a motion with the Chief Hearing Examiner to disqualify and remove a hearing examiner and must support the motion with affidavits stating the alleged grounds for disqualification, per 1905.22(c)(2).

• The Chief Hearing Examiner will rule on the motion.
• Include facts and sworn statements (affidavits) showing why the examiner cannot be impartial or fit to continue.

Contumacious conduct (willful disobedience or disruptive behavior) at a hearing is grounds for excluding the person from the hearing, as set out in 1905.22(d)(1).

• Exclusion is an immediate, discretionary remedy the examiner can use to maintain orderly proceedings and protect the fairness of the hearing.

If a witness or party refuses to answer a question or obey an order to provide discovery, the hearing examiner may issue orders that are just and appropriate, including denying the applicant's application or regulating the contents of the hearing record, according to 1905.22(d)(2).

• Remedies vary with the seriousness of the refusal and may include striking testimony, adverse evidentiary rulings, or excluding material from the record.

On procedural questions not covered by Part 1905, the Act, or the Administrative Procedure Act, a hearing examiner should be guided, to the extent practicable, by pertinent provisions of the Federal Rules of Civil Procedure, as stated in 1905.22(e).

• This guidance helps fill gaps in procedure, but the examiner must still follow the specific rules and objectives of the OSHA hearing process.

A hearing examiner must make decisions in accordance with the Williams-Steiger Occupational Safety and Health Act, Part 1905, and the Administrative Procedure Act, as required by 1905.22(a)(8).

• This means decisions must follow the Act's requirements, the Department of Labor's rules of practice (Part 1905), and APA principles for administrative adjudication.

Yes. A hearing examiner may hold conferences to settle or simplify the issues, but typically only with the consent of the parties, as authorized in 1905.22(a)(6).

• Such conferences are commonly used to identify undisputed facts, plan evidentiary presentations, and reduce hearing time and cost.

A hearing examiner may regulate the course of the hearing and the conduct of parties and their counsel to ensure orderly and fair proceedings under 1905.22(a)(4).

• Regulation can include setting time limits, ordering decorum, limiting repetitive questions, and excluding disruptive participants.

Yes. A hearing examiner may consider and rule upon procedural requests, which means parties can ask the examiner for procedural relief (e.g., extensions, motions to compel discovery, protective orders) and expect a ruling under 1905.22(a)(5).

• Parties should make procedural requests in writing when practical and be prepared to justify why the requested relief is necessary and reasonable.

It means the hearing examiner has residual authority to take actions necessary to conduct a fair hearing that are specifically authorized by the Act, Part 1905, or the Administrative Procedure Act, as described in 1905.22(a)(9).

• This catch-all permits reasonable procedural steps not explicitly listed but consistent with statutory and regulatory authority—for example, ordering supplemental filings or managing the hearing record.

An employer seeking a variance must apply under 29 CFR Part 1905 and show that the alternative methods or conditions proposed will provide a workplace as safe and healthful as required by the standard from which relief is sought, as explained in the Part 1905 rules and discussed in OSHA's Overhead crane lateral clearance interpretation.

• Variances may be permanent, temporary, or for national defense; a permanent variance requires proof that alternatives provide equivalent protection.
• The application must include a statement showing how proposed practices provide safety at least equal to the standard, as emphasized in the 1995 memorandum on variance applications.

No. OSHA has taken the position that Section 6(d) does not provide for interim relief when seeking a permanent variance, and the interim relief provisions in 29 CFR 1905.11 are inoperative for that purpose, as explained in the 1995 interpretation about safety valves and interim relief.

• Employers should not expect automatic interim exemptions while a permanent variance application is pending.

The employer must demonstrate that it is truly infeasible to comply and that proposed alternative practices will reduce hazards as much as possible and provide a level of protection at least equivalent to the standard; OSHA evaluates such variance requests closely, as noted in the 1995 memorandum on variance requests for crane operations and the 1999 variance letter about carrying loads over people.

• The variance application should explain the infeasibility and provide objective evidence and safeguards demonstrating equivalent protection.