A Few Words About Due Process and State Action

I was recently contacted by a journalist planning an article about Cal/OSHA and posing the question of why more appeals of Cal/OSHA citations are being filed. We had a conversation about the significant impact that a Cal/OSHA citation may have on an employer's ability to do business, the dispute resolution process once a citation is issued, and the employer's right to appeal.

As background, when an employer receives a citation, it has 15 working days to file an appeal with the California Occupational Health and Safety Appeals Board. This is not typically enough time for the employer to conduct an investigation, and then to evaluate the merit of the citations issued by Cal/OSHA. In all but the simplest cases, there is insufficient time for the employer to make decisions about how to best go forward. The legal effect of a failure to timely file an appeal is draconian: if the employer does not file an appeal to protect its right to present evidence contra to Cal/OSHA's allegations before the deadline, they lose the right to contest Cal/OSHA's allegations.

When the article was published, I found that the published article did not touch on employers' right to challenge Cal/OSHA allegations. The limited reference to employer appeals came under the subtitle "Got Fines? It's Fine. Just appeal them." Instead, after ignoring the employer's rights, the author elected to describe an employer’s appeal as a lengthy process that significantly delays the payment of fines and creates extra work for an already strapped Cal/OSHA staff.

It is time to talk about due process of law.

The Federal Constitution is the highest law of the land and governs the relationship between the government and the governed. Any action by the government must comply with the Constitution. The Constitution mandates that state action by the government provide procedural due process to the governed, including employers. The Fifth Amendment says to the federal government that no one, including employers, shall be “deprived of life, liberty or property without due process of law”.

The Fourteenth Amendment, ratified in 1868, uses the same eleven words, called the Due Process Clause, to describe the legal obligation of all states. Section 7 of the California Constitution mirrors this language. The burden is on the federal and state governments to provide due process to those subject to state action. If it fails to do so, that action is unconstitutional.

The issuance of a citation to an employer by Cal/OSHA is a state action. The Cal/OSHA citation is an allegation of a violation of a safety regulation. The Cal/OSHA appeal system, as any other legal framework for challenge of a state action, is based upon the concept of due process, and must provide fair notice and a right to a hearing.

Due process requires that legal matters be resolved according to established rules and that participants are put on notice of any claimed violation, have the opportunity to investigate the claims, review the evidence against them and prepare a defense. It requires a fair hearing where the accused is given an opportunity to present evidence in their defense.

In this case, once a citation is issued, employers have a right to appeal. Cal/OSHA has the burden of proving each element of the alleged violation. This means that Cal/OSHA must present evidence that, when weighed in terms of probability of truth and against opposing evidence, is more convincing than opposing evidence. If Cal/OSHA is unable to meet this burden, the employers' appeal must be granted.

Garrett Brown, former Cal/OSHA inspector and assistant to the Cal/OSHA Chief, is quoted by the article as stating "inspectors now have to spend even more time gathering evidence because appeals have become inevitable.” This would seem to indicate that if Cal/OSHA did not have to worry about employer appeals, they would also not have to worry about evidence in support of their allegations.

While this may be is true, it also suggests a frank admission that Cal/OSHA inspectors are issuing citations without sufficient evidence in disregard of their constitutional obligations to our system of justice and in complete disregard of employers' constitutional right of due process.

Whatever challenges are now facing Cal/OSHA, we must not support a dialogue that makes light of or undermines California employers' constitutional right of appeal and Cal/OSHA's legal obligation to prove alleged violations.