Complaint and answer procedures

The Secretary must file a complaint with the Commission no later than 21 days after receipt of the notice of contest. This is a firm deadline under 2200.34(a)(1).

• File date is counted from OSHA's receipt of the notice of contest. See the overall complaint requirements at 2200.34(a).

The complaint must list all alleged violations and proposed penalties being contested and state with particularity the basis for jurisdiction, the time/place/circumstances of each alleged violation, and the considerations supporting the abatement period and proposed penalty. See 2200.34(a)(2) and its subparts 2200.34(a)(2)(i), 2200.34(a)(2)(ii), and 2200.34(a)(2)(iii).

• Practical checklist: identify the legal basis for jurisdiction, state when and where each violation occurred, describe the factual circumstances, and explain how you calculated the abatement period and penalty.

When the Secretary seeks to amend a citation or proposed penalty, the complaint must set forth the reasons for the amendment and state with particularity the specific change sought. See 2200.34(a)(3).

• In practice, this means explaining why the amendment is needed and precisely how the citation or penalty language will be altered so the party and the Commission can evaluate the motion.

A party served with the complaint must file an answer with the Commission within 21 days after service of the complaint. See 2200.34(b)(1).

• If you miss this deadline, the complaint's allegations may be admitted by default under 2200.34(b)(2).

An answer must contain a short and plain statement denying the allegations the party intends to contest, and any allegation not denied will be deemed admitted. See 2200.34(b)(2).

• Practical tip: explicitly deny each allegation you dispute; generic or vague denials may be insufficient and leave the allegation admitted.

The answer must include all affirmative defenses being asserted, such as "infeasibility," "unpreventable employee misconduct," and "greater hazard." See 2200.34(b)(3).

• Examples of affirmative defenses:

  • Infeasibility: compliance was technically impossible under the circumstances.
  • Unpreventable employee misconduct: the employer took reasonable steps to prevent the employee's actions.
  • Greater hazard: compliance would have created a more serious hazard than the violation.

• Include factual support for each affirmative defense when possible to preserve them for later stages.

If an affirmative defense is not raised in the answer, the party may be barred from raising it later unless the Judge finds the defense was asserted as soon as practicable. See 2200.34(b)(4).

• Practical consequence: raise all known affirmative defenses in your initial answer to avoid losing the ability to use them later; if a new defense arises, explain promptly why it was not available earlier so the Judge can decide whether to allow it.

A motion filed in lieu of an answer must be filed no later than 21 days after service of the complaint and must comply in form and content with [2200.40]. See 2200.34(c) and 2200.40.

• Practical steps: prepare the motion consistent with the procedural and format rules in 2200.40, and file it within the same 21-day answer period allowed under 2200.34(b)(1).

The Secretary must explain the considerations upon which the period for abatement and the proposed penalty for each alleged violation are based and state those considerations with particularity. See 2200.34(a)(2)(iii).

• Give concrete examples in the complaint: factors such as complexity of corrective measures, availability of equipment, or employer's prior history can justify abatement time or penalty levels.

To avoid unintended admissions, an employer should expressly deny any complaint allegations it disputes, list all affirmative defenses, and, if appropriate, state which allegations are admitted. See 2200.34(b)(2) and 2200.34(b)(3).

• Practical checklist for the answer:
  • Deny disputed allegations in clear, plain language.
  • Admit only those facts you accept.
  • Plead all affirmative defenses with supporting facts.
  • File within 21 days after service per 2200.34(b)(1).

Stating the basis for jurisdiction means identifying the legal authority that allows the Commission to hear the complaint, and providing the time, location, place, and circumstances means giving specific factual details about when and where each alleged violation occurred and the facts surrounding it. See 2200.34(a)(2)(i) and 2200.34(a)(2)(ii).

• Practical examples: cite the specific statutory or regulatory provision that gives jurisdiction, list dates and work areas where violations occurred, and describe the actions or conditions that led to each alleged violation.

If a party fails to file an answer within the required period, allegations not denied will be deemed admitted and the party risks losing the opportunity to present affirmative defenses later. See 2200.34(b)(1), 2200.34(b)(2), and 2200.34(b)(4).

• Practical advice: file an answer or a timely motion in lieu of an answer under 2200.34(c) to preserve defenses and avoid default admissions.

Generally no—an employer risks being prohibited from raising the "unpreventable employee misconduct" defense later if it is not included in the answer unless the Judge finds the defense was asserted as soon as practicable. See 2200.34(b)(3) and 2200.34(b)(4).

• Practical step: plead this defense in the initial answer with supporting facts to preserve it for later proceedings.

An employer cannot assume all settlement agreements will be kept off the OSHA website; major settlement agreements are posted and most settlement agreements are public information subject to FOIA, although not all are placed on the website. See the OSHA interpretation at https://www.osha.gov/laws-regs/standardinterpretations/2004-09-27-0 and the posting requirement found in 2200.

• Key points from OSHA's interpretation: OSHA posts major settlement agreements on its site, most settlement agreements are not posted but remain subject to disclosure under FOIA, and the Review Commission rules at 2200.100(c) (as discussed in the interpretation) require posting settlement agreements in the same way citations are posted.