Who may represent an employer in an OSHA appeal, and the two Western states where the answer is no

One of the most useful facts in Cal/OSHA practice is also one of the least known: an employer contesting a citation in California does not have to be represented by a lawyer.

California

Title 8 section 378(a) of the California Code of Regulations says it directly: "A party may appear in person or through a representative who is not required to be an attorney at law." The representative files a written notice of representation with the Appeals Board's Sacramento office and serves the other parties. That is the whole mechanism.

There is a second point worth making alongside it, because employers get it wrong constantly. The Division of Occupational Safety and Health issues the citation. The Occupational Safety and Health Appeals Board hears the appeal. They are separate bodies. Employers lose weeks arguing their case to the district office that cited them, under the impression that this is the appeal, and it is not.

The federal rule

In states where federal OSHA has jurisdiction rather than a state plan, the equivalent is 29 CFR 2200.22, which reads: "Any party or intervenor may appear in person, through an attorney, or through any non-attorney representative." Idaho, Montana, Colorado, North Dakota and South Dakota all fall under that rule.

Where it is not true

This is the part that gets assumed across state lines and should not be.

Utah requires an attorney. Under the Utah Administrative Code, a corporation contesting a UOSH citation must be represented by a Utah-licensed attorney. The contest period there is also 30 days rather than fifteen working days.

Washington is restricted. WAC 263-12-020(3)(b) sets out a closed list of who may represent a party before the Board of Industrial Insurance Appeals, and an outside safety consultant is not clearly on it. Washington also runs a two-step process, through the Department of Labor and Industries first and the Board second.

Oregon allows non-attorney representation under OAR 438-085-0431(2), with a 30-day deadline rather than fifteen working days. New Mexico allows it under 11.5.5.111(A) NMAC, and Wyoming under its OSHA rules of practice, both on the fifteen-working-day schedule.

For that reason my own practice takes citation defense and appeals representation in California, Oregon, New Mexico, Wyoming, Idaho, Montana, Colorado and the Dakotas — and in Washington and Utah does safety and EHS consulting only: industrial hygiene and exposure assessment, written programs, hazard analysis, audits and training support. I would rather say that plainly than let an employer in Salt Lake City assume the California answer applies to them.

Two things that are uniform, and one that is not

Every one of these deadlines runs from receipt, not from issuance. And in none of these jurisdictions does an appeal reopen once the period closes, absent good cause.

What is not uniform is the length. Fifteen working days in most of them; 30 days in Oregon and Utah. Federal OSHA and Wyoming measure filing by postmark. Federal practice defines "working days" at 29 CFR 1903.22(c), and it should not be assumed that every state plan defines the term the same way.

Check the rule for the state that issued your citation, not the rule you learned somewhere else.

Michael Karl McNeil, REP, RIH, EPP, QSD. General information about published regulations, not legal advice.