Pre-hearing conference procedures

A Judge may conduct a pre-hearing conference as early as practicable after the employer has received the documents listed in 2200.206(a)(1).

• The regulation explicitly ties the timing to receipt of the documents in 2200.206(a)(1) and uses the flexible phrase “as early as practicable.”
• This means the Judge should schedule the conference promptly after those documents are received, but the exact timing can vary depending on the case logistics and readiness of the parties. (See 2200.207(a).)

Yes — the Judge may hold the pre-hearing conference in person, by telephone, or by electronic means.

• The rule explicitly authorizes these three modalities so parties should be prepared for any of them. (See 2200.207(a).)
• If you have constraints (access to technology, time zones, accommodations), raise them early so the Judge can choose an appropriate format.

Parties may discuss settlement, narrowing issues, an agreed statement of issues and facts, all defenses, witnesses and exhibits, motions, and any other pertinent matter.

• The regulation lists these topics to guide the conference toward simplifying and focusing the upcoming hearing. (See 2200.207(b).)
• Use the conference to resolve easy disputes, agree on uncontested facts, identify key witnesses, and narrow what the hearing must decide.

Except under extraordinary circumstances, an affirmative defense not raised at the pre-hearing conference may not be raised later.

• The rule is designed to prevent surprise defenses at hearing and to encourage full disclosure early. (See 2200.207(b).)
• If you believe you have an affirmative defense but are unsure whether it applies, raise it at or before the pre-hearing conference or explain why it couldn’t be raised earlier to preserve the issue.

At the conclusion of the pre-hearing conference, the Judge will issue an order that may record agreements reached and specify the issues to be addressed at the hearing.

• The order can set the scope of the hearing, list agreed facts, and direct what issues the parties must prepare to litigate. (See 2200.207(b).)
• Treat the Judge’s order as binding case-management guidance; failure to follow it can affect your hearing preparation and rights.

Yes — parties may discuss settlement during the pre-hearing conference.

• Settlement is explicitly listed as a permissible topic at the conference to encourage resolution without a full hearing. (See 2200.207(b).)
• If you reach a settlement, the Judge’s concluding order may reflect any agreements and indicate whether the case will be dismissed or otherwise disposed of.

Yes — parties may and should discuss witnesses and exhibits at the pre-hearing conference.

• Identifying witnesses and exhibits helps narrow disputes and focuses hearing time on genuinely contested evidence. (See 2200.207(b).)
• Where possible, exchange exhibit lists and witness names in advance so the conference can address admissibility or scheduling issues efficiently.

Yes — motions are an appropriate topic for the pre-hearing conference.

• The conference can be used to identify outstanding motions, set briefing or hearing schedules for them, or resolve procedural disputes. (See 2200.207(b).)
• Raising motions early gives the Judge time to rule before the hearing and can narrow the issues the hearing must decide.

Yes — the regulation requires the conference occur "as early as practicable" after the employer has received the documents set forth in 2200.206(a)(1).

• The timing is linked to the employer’s receipt of specific documents identified in 2200.206(a)(1), so the Judge will normally not schedule the conference before those materials are available. (See 2200.207(a).)
• If there is a dispute about whether those documents were received, raise that issue promptly so the Judge can set an appropriate conference date.

“Narrowing of issues” means the parties should identify and agree on which specific claims, defenses, facts, and legal questions will go to hearing so the hearing focuses only on contested matters.

• The pre-hearing conference is the place to eliminate agreed-upon facts and to stipulate to issues that won’t be litigated, saving time and resources. (See 2200.207(b).)
• Prepare by listing core issues, proposed stipulations, and any facts you are willing to concede so the Judge can formalize the scope in the conference order.

If an affirmative defense arises after the pre-hearing conference, promptly notify the Judge and opposing parties and explain why it could not have been raised earlier; otherwise, it may be barred except under extraordinary circumstances.

• The rule discourages late defenses to prevent unfair surprise but allows the Judge to accept late-raised defenses in extraordinary cases. (See 2200.207(b).)
• Documentation explaining the new facts or legal basis that prevented earlier notice will help the Judge decide whether to permit the late defense.

Yes — the parties may create and present an agreed statement of issues and facts at the pre-hearing conference.

• An agreed statement simplifies the hearing because facts in the statement won’t need to be proved at trial. (See 2200.207(b).)
• If you can reach agreements, ask the Judge to include them in the conference order so they are official and binding for the hearing.

The Judge’s pre-hearing order usually specifies the issues to be addressed at the hearing and may record any agreements the parties reached during the conference.

• This order functions as the roadmap for the hearing, telling parties which claims and defenses will be tried and which matters are resolved. (See 2200.207(b).)
• Treat the order as authoritative for preparation, witness scheduling, and exhibit exchange.

No — OSHA explained that only major settlement agreements are posted on the OSHA web site; most settlement agreements are not posted but remain subject to FOIA.

• The Letter of Interpretation states that while OSHA posts citations and some major settlement agreements, the vast majority of settlement agreements are not placed on the website, though they can be disclosed under the Freedom of Information Act. (See the OSHA Letter of Interpretation at https://www.osha.gov/laws-regs/standardinterpretations/2004-09-27-0.)
• The letter also notes that settlement agreements are to be posted in the same manner that employers must post citations and notices of contest under 29 CFR 2200.100(c), which can affect how and where certain agreements appear.

No — OSHA said that settlement agreements are public information and, while many agreements are not posted on the website, they remain disclosable under FOIA and cannot generally be kept confidential.

• The Letter of Interpretation clarifies that settlement agreements are public information and, although most are not posted on OSHA’s website, they are subject to Freedom of Information Act disclosure. (See the OSHA Letter of Interpretation at https://www.osha.gov/laws-regs/standardinterpretations/2004-09-27-0.)
• If confidentiality is a concern, consult counsel about FOIA exemptions and any agency procedures, but don’t assume OSHA will keep an agreement private.

Parties should conduct settlement discussions knowing that major settlement agreements may be posted publicly and that most agreements are still subject to FOIA disclosure.

• The regulation encourages settlement at the pre-hearing conference, but the Letter of Interpretation warns that settlement agreements are generally public information and can be disclosed. (See 2200.207(b) and the OSHA Letter of Interpretation at https://www.osha.gov/laws-regs/standardinterpretations/2004-09-27-0.)
• If confidentiality is essential, raise the concern early, consider confidentiality terms in negotiations, and consult counsel about the limits of FOIA and OSHA posting practices.