Public Policy Institute
March 14, 2013
The Occupational Safety and Health Review Commission (OSHRC) has released a comprehensive, independent study, which affirmed the value of mediation in complex workplace safety cases. The evaluation declared the Commission’s dispute resolution program, which requires settlement talks in cases where employers face high penalties, to be “successful” and that OSHRC “has done an admirable job addressing an increased caseload within constrained resources while at the same time meeting the expectations of its external stakeholders.”
Entitled “Dispute Resolution in the Administrative Process: Evaluation of the Occupational Safety and Health Review Commission Settlement Part Program,” the study was performed by alternative dispute resolution experts at Indiana University School of Public & Environmental Affairs (SPEA: Indiana University Bloomington and Indiana University Purdue University Indianapolis) and is available on the Commission website at http://www.oshrc.gov/publications/index.html.
Commission Chairman Thomasina Rogers praised the agency’s corps of Administrative Law Judges (ALJs) for their work on Settlement Part cases, “Our judges, under the leadership of Chief Judge Covette Rooney, have done an exemplary job in making this alternative dispute resolution program successful.” Pointing out that the agency’s caseload has increased almost fifty percent over the last several years, Chairman Rogers noted, “The herculean effort of our judges and a well-functioning Settlement Part have made it possible for OSHRC to handle its burgeoning caseload in a responsible manner. Settlement Part encourages parties to resolve their OSHA disputes in a faster, mutually agreeable and cost-saving manner, while hastening abatement of potentially hazardous conditions.”
The Settlement Part was originally established as a pilot project in 1999 and, after an earlier evaluation by Indiana University, was extended permanently in 2000. The Commission revised some of the rules governing the program in 2005. The program provides a more structured and formal setting in the preliminary stages of cases to promote the resolution of disputes and to reduce litigation costs. It requires employers who receive job safety or health citations that include proposed penalties of $100,000 or more to participate in formal settlement talks at which a Review Commission ALJ presides. If settlement efforts fail, a different ALJ hears the case. To enhance the chances of success, settlement conferences must be attended by officials with the authority to settle. Information and documents shared during such negotiations are confidential and protected from later disclosure unless all parties agree. When employers contest workplace safety citations, they are not required to correct allegedly unsafe conditions until the Review Commission issues a final decision; thus settlement often brings swifter correction of potential workplace hazards.
Building on the success of the mediation program at the ALJ level, the Commission will be considering whether to establish a similar program at the Commission level. The Commission recently was successful in resolving a series of complex, older or “legacy” cases dating back to 1994 and Chairman Rogers has put in place a number of initiatives - including a possible Commission level Settlement Part - to lessen the chances of a similar accumulation of “legacy” cases occurring in the future.
The Review Commission was created by the Occupational Safety and Health Act of 1970 to issue decisions in disputes arising from citations issued by the U.S. Department of Labor's Occupational Safety and Health Administration. Those citations may also include proposed monetary penalties.