Voluntary settlement procedures apply only to employer notices of contest and to applications for fees under the Equal Access to Justice Act and 29 CFR part 2204.
Either party may move for assignment to a Settlement Judge after docketing, or the parties may consent at any time, but a Settlement Judge procedure cannot be imposed over the Secretary's or employer's objection.
Voluntary settlement procedures may last up to 75 days, and they can be extended only with the concurrence of the Chief Administrative Law Judge.
A notice of contest by an employer is subject to mandatory settlement proceedings if the aggregate penalties sought by the Secretary are $205,000 or greater (subject to periodic inflation adjustments posted by the Commission).
When a case meets the mandatory settlement criteria, the Chief Administrative Law Judge shall assign the case to the Settlement Part upon docketing.
Mandatory settlement procedures last no more than 120 days unless the Chief Administrative Law Judge concurs in an extension.
The Settlement Judge may consult with parties by suitable means to schedule the conference, issue preconference scheduling orders on procedural matters, and must conduct the Settlement Conference as soon as practicable given case size and complexity.
The Settlement Judge must confer with the parties to seek whole or partial settlement, may require written statements of the contested issues and factual bases, and may allow or suspend discovery as appropriate.
Yes, the Settlement Judge has discretion to engage in ex parte communications during settlement proceedings and may privately suggest concessions to each party with the party's representative.
The Settlement Judge may require the attorney or representative expected to try the case to be present and may also require that the party's representative include an official with full settlement authority.
Statements and information presented during settlement proceedings are confidential and may not be divulged outside the proceedings except with party consent or where disclosure is required by law or public policy. Notes by the Settlement Judge, communications with the Chief ALJ, and settlement statements generally are not admissible in later hearings, and documents disclosed in settlement cannot be used later unless obtained through proper discovery or subpoena.
The following are not admissible in any subsequent hearing unless the parties stipulate: evidence of settlement statements within the scope of Federal Rule of Evidence 408; notes or materials the Settlement Judge prepared or maintained; and communications between the Settlement Judge and the Chief Administrative Law Judge related to settlement proceedings.
Documents or factual information disclosed in settlement may not be used later in litigation unless properly obtained by discovery or subpoena, and the Settlement Judge may not discuss the merits with others or appear as a witness in the case.
No, materials that must be kept confidential under 2200.120(d)(3) will not be part of the official case record required under 29 U.S.C. 661(g) and are not open to public inspection unless the parties stipulate otherwise.
The Settlement Judge must promptly notify the Chief Administrative Law Judge in writing at the conclusion of the settlement period or when the Settlement Judge decides further negotiations are fruitless—specifically after 75 days for voluntary or 120 days for mandatory proceedings if no settlement is reached.
If the settlement period ends without a full settlement, the Chief Administrative Law Judge will assign the case promptly to another Administrative Law Judge for action on remaining issues, although the parties and judges may agree to retain the Settlement Judge as the Hearing Judge.
No, decisions about the assignment of any Judge and a Settlement Judge's decision to terminate settlement proceedings are not subject to review, appeal, or rehearing.
Failure to be present at a settlement conference or to comply with a Settlement Judge's orders can result in default or sanctions under 2200.101.
Yes, the Settlement Judge may allow, limit, or suspend discovery during settlement proceedings through preconference orders as needed to facilitate settlement.
Most settlement agreements are not posted on OSHA's public web pages, but settlement agreements are public information and may be disclosed under FOIA; employers cannot guarantee exclusion from FOIA disclosure even if an agreement is not posted.