Hearing procedures and evidence

Under 2200.209(a) the Judge will hold a hearing as soon as practicable after the conclusion of the pre‑hearing conference on any issues that remain in dispute. The hearing follows the simplified proceedings rules and will be conducted in accordance with subpart E except that 2200.73 will not apply. See the general 2200 hearing rule for the wider procedural context.

Under 2200.209(b) the Judge will enter into the record all agreements reached by the parties and any defenses raised during the pre‑hearing conference at the beginning of the hearing. The Judge and parties will then try to resolve or narrow remaining issues, and any additional agreements reached during the hearing will also be entered into the record (2200.209(b).) This ensures that stipulated facts and defenses are officially preserved for the record.

Under 2200.209(c) the Federal Rules of Evidence do not automatically control in simplified proceedings; the Judge may, however, accept a written stipulation of the parties to apply the Federal Rules in whole or in part. In practice the Judge will receive oral, physical, or documentary evidence so long as it is not irrelevant, unduly repetitious, or unreliable (2200.209(c).)

Under 2200.209(c) matters that are protected by an evidentiary privilege are excluded from admission. The Judge will hear evidence except for privileged matters, although parties may agree in writing to apply the Federal Rules of Evidence if they wish (2200.209(c).) If you expect a privilege issue (e.g., attorney‑client communications), raise it early so the Judge can rule on admissibility.

Under 2200.209(c) the Judge will receive oral, physical, or documentary evidence that is not irrelevant, unduly repetitious, or unreliable. Evidence need not conform automatically to the Federal Rules of Evidence unless the parties stipulate to their application in writing (2200.209(c).) Prepare to authenticate documents and identify witnesses so the Judge can determine relevance and reliability.

Yes — testimony at the hearing is given under oath or affirmation, so witnesses are sworn before providing testimony. This requirement is part of the hearing procedures described in 2200.209 and supports the creation of an official, verbatim record.

Under 2200.209(d) a reporter will be present at the hearing, an official verbatim transcript will be prepared and filed with the Judge, and parties may purchase copies of the transcript from the reporter. Keep this in mind when planning your post‑hearing filings, because the transcript often starts the running of deadlines for closing the record (2200.209(d).)

Under 2200.209(e) each party may present oral argument at the close of the hearing, and the Judge may allow or require post‑hearing briefs or statements of position either on request of a party or on the Judge's own motion. Any post‑hearing briefs must conform to 2200.74 unless the Judge specifies otherwise (2200.209(e).) Plan for both oral argument and the possibility of written briefs when preparing your case.

Under 2200.209(e) post‑hearing briefs must conform to the form requirements in 2200.74 unless the Judge directs otherwise. That means you should follow the formatting, filing, and content rules set out in 2200.74 or seek the Judge’s permission for any deviation (2200.209(e).)

Under 2200.209(f)(1) when the Judge renders a bench decision, the Judge must state the issues, make clear both the findings of fact and conclusions of law on the record, and then reduce that bench decision to writing and serve it on the parties no later than 45 days after the hearing (unless additional time is approved by the Chief Administrative Law Judge). The written decision must conform to 2200.90(a) and include the bench decision as an appendix to the written decision (2200.209(f)(1).)

If the Judge does not render a bench decision, the Judge must issue a written decision within 60 days of the close of the record, unless additional time is approved by the Chief Administrative Law Judge. The decision must be prepared in accordance with 2200.90(a) and filed per the filing rules (2200.209).

Under 2200.209 the record is ordinarily deemed closed upon the later of the filing of the hearing transcript or the completion of any permitted post‑hearing briefing. That closing point starts the running of the time limits for issuance of the Judge’s written decision (60 days) if no bench decision is made (2200.209).) Ensure all exhibits and briefs are filed before the record closes.

Under 2200.209(f)(1) and the timing rules, if the Judge needs additional time beyond the 45‑day deadline for a bench decision or beyond the 60‑day deadline for a written decision, the Judge must obtain approval from the Chief Administrative Law Judge. The written decision must otherwise comply with 2200.90(a) (2200.209(f)(1) and related paragraphs).

Under 2200.209(g) service, filing, and docketing of the Judge's written decision must be done in accordance with 2200.90. That means you must follow the filing and service procedures and timelines set out in 2200.90 when the Judge issues a written decision (2200.209(g).)

Under 2200.209(a) hearings in simplified proceedings are conducted in accordance with subpart E of the Rules of Procedure, but 2200.73 will not apply. This means most subpart E procedures apply, except the specific provisions found in 2200.73 are excluded from simplified hearings.

Yes — under 2200.209(d) an official verbatim transcript is prepared and filed with the Judge, and because the record is ordinarily closed upon filing of that transcript (or completion of permitted briefing), parties should plan post‑hearing filings and deadlines around the transcript filing. Obtain a copy from the reporter if you need it for preparing briefs or checking the bench decision requirements (2200.209(d).)

OSHA's interpretation is that settlement agreements are public information and OSHA posts major settlement agreements on its website, but the vast majority of settlement agreements are not posted online even though they remain subject to public disclosure under FOIA. An employer cannot assume all settlement agreements will be kept confidential; some major agreements are posted while most smaller agreements are not posted to the web site but can still be disclosed if requested under FOIA (OSHA website citation postings, Sept. 27, 2004).) The letter also notes that settlement agreements are handled under the Review Commission’s posting rules (see the letter for details).