February 19, 2008
Issue 27

Attitudes are changing at the Occupational Safety and Health Appeals Board, also known as OSHAB. The Board's increasingly tough adherence to its rules of procedure is reshaping OSHAB from an agency run to accommodate its "clients" to one in which parties to appeals need to pay close attention to the Board's new priorities.

In brief, following OSHAB's procedural rules is now as important as having a great defense to a citation. California's employers must pay more attention to process issues, and most will need assistance in navigating the system.

With a persistent backlog of appeals and petitions for reconsideration, Fed/OSHA's Review Commission breathing down their neck and a 10% budget cut in the offing, OSHAB's highest priority is to clear its case load. To that end, the Board has been steadily raising the pressure on everyone involved in the system. Here's how they are doing it.

The Board's shift in attitude was forced when an anonymous Complaint Against State Program Administration (CASPA) was filed with Fed/OSHA in 2004, alleging that the Appeals Board was taking too long to move appeals to completion. The federal benchmark is 8 to 10 months. The average appeal in California takes a year or more. But there are reconsideration petitions which have been awaiting a decision for more than four years.

The Board reacted first by mandating an increase in the number of decisions issued by its judges each month. When that move alone didn't solve the problem, the Board took a page from the Superior Courts. Since most appeals, like civil cases, settle before hearing (even if it's just minutes before), the Board now sets two or three appeals for the same day with the same judge. This has worked reasonably well, but it has stressed Cal/OSHA's attorneys and district managers by requiring them to prepare for multiple hearings, not knowing which one might actually go forward.

Then the Board limited the number of hearing locations to its offices in Northern and Southern California and two alternatives. This reduced their judges' travel time. It also placed additional burdens on both employers and the Division by forcing the parties and witnesses to travel greater distances to attend hearings.

Settlements are being encouraged - or coerced depending on your experience - by new restrictions on continuing hearings. While the Board has always said that continuances are disfavored, a simple request used to be all that was necessary. Starting last year, the Board began rejecting requests which were not supported by sworn declarations. Requests for continuances based upon conflicting dates for elective surgery have been denied. Requests based on a death in the family have been denied. In one case, we had to fight for a continuance to allow our client to attend his mother's 80th birthday party in New Jersey. Our request was denied at first because he did not have proof of reservations purchased before the date of the hearing notice. Not surprising, since the notice was served in March for a July hearing date.

And in the case of requests for continuances, no news is NOT good news! The Board often does not rule on requests until the day of the hearing. Forcing parties and witnesses to prepare for a hearing despite whatever obstacle prompted the request in the first place is another way, either by design or excessive workload, that OSHAB is "encouraging" settlements.

Additionally, while four months' notice of a hearing is the norm, it is not uncommon for the Board now to give just weeks notice to fill openings in its schedule.

The Board also adopted new regulations, effective at the end of 2007, which increase their judges' powers. One judge can now be assigned for all purposes. They can explore and limit issues and defenses, supervise discovery, and set caps on the number of witnesses and exhibits to be introduced at the hearing.

Judges can now hold as many pre-hearing conferences as they think will be helpful. Where before pre-hearing telephone conferences took maybe ten minutes and accomplished little, parties to appeals now must discuss the issues and explore settlement beforehand and be fully prepared to talk about the appeal at the conference. This can create serious dilemmas for employers who do not wish to expose their defense strategies until it is too late for the Division to fix the problem.

Further, judges can now issue sanctions (read: order payment of monetary fines) against parties who do not follow the rules. After years of a relaxed approach to pre-hearings, it was a little breath-taking to hear a judge announce the other day that she would be issuing an Order to Show Cause re: Sanctions against an employee's representative who failed to participate in the previous pre-hearing.

These cures for OSHAB's woes are stressing the system and making nobody especially happy. No one doubts that some tough love is needed at all levels to get the Board back on track. But do not expect these changes to be temporary, with a return to the old system when and if the backlog of appeals is eliminated. Rather, we expect that OSHAB will continue to operate more like the civil courts and less like the informal resolution service the Legislature envisioned when the Board was created 35 years ago.