Prehearing conferences

Under 1905.23(a), the hearing examiner may order a conference either on the examiner's own motion or at the request of a party, and the parties or their counsel must meet with the examiner.

• The rule says the examiner may direct the parties or their counsel to meet for a conference, so either the judge or any party may trigger the conference.
• Include the parties themselves or their attorneys as directed by the hearing examiner.

Reference: 1905.23(a).

Under 1905.23(a)(1), "simplification of the issues" means the examiner and parties work to narrow, clarify, or eliminate contested points so the hearing focuses only on disputes that remain.

• Examples include agreeing on uncontested facts, narrowing legal claims, or identifying the precise facts each party must prove.
• The goal is to save hearing time and focus the record on genuinely disputed matters.

Reference: 1905.23(a)(1).

Yes. Under 1905.23(a)(2), the hearing examiner may allow amendments to filed documents for purposes of clarification, simplification, or limitation.

• Any amendments allowed should be recited in the examiner's subsequent order so the record is clear.
• Amendments made to streamline issues reduce surprises at the hearing and help focus testimony and exhibits.

Reference: 1905.23(a)(2).

Yes. Under 1905.23(a)(3), parties may make stipulations and admissions of fact and of the contents and authenticity of documents to limit what must be proved at the hearing.

• A stipulation can remove the need to call witnesses or introduce extra foundation evidence for agreed items.
• Stipulations should be included in the examiner's written prehearing order so all parties and the record reflect what is admitted.

Reference: 1905.23(a)(3).

Yes. Under 1905.23(a)(4), the hearing examiner may limit the number of parties and expert witnesses to keep the hearing efficient and focused.

• Limits can reduce duplication of testimony and control hearing time.
• Any such limits should be stated in the examiner’s conference order so parties know the scope and can plan accordingly.

Reference: 1905.23(a)(4).

Under 1905.23(a)(5), a prehearing conference can address any additional matters that will expedite the proceeding and help assure a just outcome.

• Common topics include scheduling deadlines, exhibit exchange and numbering, jury or witness logistics, confidentiality or protective orders, and preliminary rulings on evidence.
• The examiner has broad discretion; parties should propose practical steps to streamline the hearing.

Reference: 1905.23(a)(5).

Under 1905.23(b), the hearing examiner must issue a written order that recites the actions taken at the conference, any amendments allowed to filed documents, and the agreements between the parties; that order then limits the issues for hearing to those not disposed of by admissions or agreements.

• The order controls the subsequent course of the hearing unless modified at the hearing to prevent manifest injustice.
• Including agreed facts and document amendments in this order reduces disputes and streamlines the hearing record.

Reference: 1905.23(b).

Yes. Under 1905.23(b), the prehearing conference order controls the hearing unless it is modified at the hearing to prevent manifest injustice.

• A party seeking modification must show why enforcing the order would cause manifest injustice (for example, newly discovered evidence or extraordinary circumstances).
• The examiner retains discretion to reopen or modify the order when fairness requires it.

Reference: 1905.23(b).

Under 1905.23(a), a party requests a prehearing conference by moving the hearing examiner (filing a motion or asking the examiner) to direct the parties to meet for a conference.

• Make the request in writing to the hearing examiner and explain the purpose (e.g., simplifying issues, stipulations, witness limits).
• Provide proposed topics and dates to help the examiner schedule the conference efficiently.

Reference: 1905.23(a).

Under 1905.23(a)(3) and 1905.23(b), any stipulations about facts or document authenticity reached in the conference should be recited in the examiner's written order so they are part of the official record and control the hearing scope.

• The order should plainly list each stipulation to prevent relitigation and to guide witnesses and exhibits at the hearing.
• If a party later seeks to reopen a stipulation, the order may be modified at the hearing only to avoid manifest injustice.

References: 1905.23(a)(3) and 1905.23(b).

Yes. Under 1905.23(a)(5), the examiner may consider matters that tend to expedite the disposition of the proceeding, which can include discussing settlement possibilities or directing parties toward alternative dispute resolution.

• While the regulation does not mandate settlement, the examiner may schedule time to explore settlement options or set procedures that encourage resolution.
• Any settlement reached should be reflected in the examiner’s written order or agreed documentation.

Reference: 1905.23(a)(5).

Yes. Under 1905.23(a)(4), the examiner may limit the number of expert witnesses to avoid repetitive or cumulative testimony, including directing parties to designate a single expert on a specific technical issue.

• This reduces duplication and shortens hearing time while still allowing each party a fair opportunity to present expert evidence.
• The prehearing order should specify any limits so parties can plan expert disclosures and testimony accordingly.

Reference: 1905.23(a)(4).

Yes. Under Part 1905 and the conference authority in 1905.23, a prehearing conference can focus and narrow issues in a variance application hearing and set procedures for presentations and evidence.

• OSHA has explained in Letters of Interpretation that variance applicants must demonstrate how proposed alternatives provide protection at least equivalent to the standard and that [Part 1905] contains the application rules and procedures for variances. See the Letter of Interpretation discussing variances and the Part 1905 process at https://www.osha.gov/laws-regs/standardinterpretations/1999-03-24.
• Use the conference to identify evidence, expert testimony, and narrow contested legal questions so the variance hearing proceeds efficiently.

References: Part 1905 and 1905.23.

Under 1905.23(a), parties should come prepared to discuss issue simplification, proposed document amendments, stipulations of fact and authenticity, witness and expert limits, and any other items that will expedite the case.

• Bring proposed lists of agreed facts, proposed amendments to pleadings, a witness list (including experts) with brief topics, and a suggested schedule for exchange of exhibits.
• Providing concise written proposals in advance helps the hearing examiner issue a clear order after the conference.

Reference: 1905.23(a).

Under 1905.23(b), the examiner’s prehearing order does not erase earlier filings but recites allowed amendments and the agreements made and then limits the hearing to issues not disposed of by those admissions or agreements.

• The order should state any specific amendments to filed documents so the record reflects the current claims and defenses.
• Issues disposed of by admission or agreement are removed from the hearing agenda; other claims remain as described in the order and prior filings.

Reference: 1905.23(b).

Under 1905.23(b), "manifest injustice" is the legal standard that allows the hearing examiner to modify a prehearing order at the hearing when enforcing the order would produce a clearly unfair or unconscionable result.

• Examples can include newly discovered evidence that could not reasonably have been presented earlier or circumstances making strict enforcement fundamentally unfair.
• The party seeking modification must convince the examiner that the strict application of the order would cause substantial unfairness rather than mere inconvenience.

Reference: 1905.23(b).

Yes. Under 1905.23(a)(5), the examiner can address procedural matters that expedite the hearing, including setting deadlines for exchange of exhibits and witness lists.

• Those deadlines should be included in the examiner’s written prehearing order so all parties know their disclosure obligations.
• Timely exchanges reduce surprise and foundation disputes during the hearing.

Reference: 1905.23(a)(5).

An employer seeking a permanent variance must show how the proposed alternative practices, equipment, or procedures will provide a workplace that is at least as safe and healthful as compliance with the standard, as described in Part 1905 and discussed in OSHA's Letter of Interpretation about variances at https://www.osha.gov/laws-regs/standardinterpretations/1999-03-24.

• A prehearing conference can narrow factual and legal disputes, identify what evidence will be needed to demonstrate equivalent protection, and set deadlines for submitting engineering reports or expert testimony.
• Using the conference to agree on what technical proofs are required makes the variance hearing more efficient and focused on the equivalence question.

References: Part 1905 and OSHA Letter of Interpretation on variances (https://www.osha.gov/laws-regs/standardinterpretations/1999-03-24).

Yes. Under 1905.23(a)(5) and the examiner’s general authority in 1905.23(a), the examiner can direct parties to limit cumulative or redundant documentary evidence to streamline the hearing.

• The examiner’s resulting order should specify how documents will be presented, marked, and admitted to avoid unnecessary duplication.
• This preserves hearing time and helps focus on the most relevant evidence.

Reference: 1905.23(a)(5).

Under 1905.23(b), the hearing examiner controls whether the prehearing conference order will limit the issues and therefore the scope of witness testimony at the hearing; the order controls the subsequent course unless the examiner modifies it at the hearing to prevent manifest injustice.

• The examiner can specify witness topics, time limits, and whether certain witnesses are necessary under the order.
• Parties should raise any objections before or during the hearing if they believe a restriction is unfair and seek modification under the manifest injustice standard.

Reference: 1905.23(b).

Under 1905.23(b), the proper path is to raise the requested change at the hearing and show that enforcing the prehearing order would cause manifest injustice; the hearing examiner may then modify the order.

• Alternatively, a party can seek leave to amend before the hearing by filing a motion with the examiner explaining why the amendment is necessary and why it was not made earlier.
• Any modification will depend on the examiner’s assessment of fairness and prejudice to the other party.

Reference: 1905.23(b).