OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.
September 24, 1991
MEMORANDUM FOR: ALL REGIONAL ADMINISTRATORS THROUGH: LEO CAREY, DIRECTOR OFFICE OF FIELD PROGRAMS FROM: PATRICIA K. CLARK, DIRECTOR DIRECTORATE OF COMPLIANCE PROGRAMS SUBJECT: Informal Conference Guidance
1. Penalty Reduction
There has been some confusion as to how to apply the penalty reduction percentage in the FOM, Chapter V, H.1.c.(3). To reduce this confusion, the following change is effective immediately. Generally, Area Directors are required to contact the Regional Administrator for approval whenever the total penalty for a citation is proposed to be reduced by more than 50% as a result of informal conference discussions. Regional Administrations may, however, delegate this authority to Area Directors, with or without additional restrictions. If such a delegation is made, the following guidance continues to apply in all other respects. Please have all compliance personnel make a pen and ink change to the cited paragraph by replacing "60%" with "50%." This change will be incorporated in the next change to the FOM, currently scheduled for October 1.
In the context of the significantly increased penalties that became effective on March 1, it may be appropriate in some cases to reduce the penalty by more than 50%, particularly in the light of recent understandings reached between the Regional Administrator and the Regional Solicitor as to what cases can be litigated due to resource limitations. In such cases Regional Administrators may be liberal in granting approval for penalty reductions exceeding 50%.
If the employer provides information in the informal conference that convinces the Area Director that the citations were issued incorrectly and should be withdrawn or that the citation items were incorrectly classified and should be adjusted, a new (reduced) penalty shall be calculated, based on the remaining citations and/or the new classifications. The Regional Administrator may, at his/her discretion, allow the Area Director to reduce the recalculated penalty proposed by more than 50% without contracting the Regional Administrator for approval. All such changes shall continue to be documented in the case file, as required by the FOM.
2. Grouping of violations.
In this context a change is also made in current grouping policy as reflected in the FOM, Chapter V, C., regarding the grouping of violations. Restrictions on grouping related violations to achieve a lower penalty, when appropriate, are removed. Related violations may be grouped for purposes of reducing the penalty in appropriate cases. Regional Administrators shall provide more specific guidelines as necessary for their regions. Copies of such guidance shall be sent to the Director of Compliance Programs.
If the Area Director in an informal conference concludes that related citations should be grouped, a new (reduced) penalty shall be calculated based on the grouped citation items. The Regional Administrator may, at his/her discretion, allow the Area Director to reduce the recalculated penalty proposed by more than 50% without contracting the Regional Administrator for approval. All such changes shall continue to be documented in the case file, as required by the FOM.
3. Witnesses at Informal Conferences
A question has been raised about the need to continue the policy requiring two OSHA personnel to be present at informal conferences, because of its resource intensive nature. We feel it is best for the Area Directors' own protection, and that of the agency, that more than one person be present during the informal conference. Also since the FOM requires that an adequate record be made of settlement negotiations, and it is difficult to accurately make a record while actively involved in the negotiations, a second person would be better able to make an accurate record of the conference. Therefore, at this time, the policy will continue as stated in FOM Chapter III, paragraph G.2.c.(1).
4. Form Letter
The formal letter sent to the employer with the citations needs to be revised for several reasons. We will request OMDS to change the form letter, but until the software is changed, the attached sample letter may be followed. The sample letter reflects the new penalty language, and the informal conference language advising the employer what to expect from, and what to bring to, the conference.
5. Conference Appointments and Time Limits
In addition, we suggest an option for those Area Directors who find they have increasing numbers of informal conferences scheduled each week. The Area Directors may want to limit conferences to a definite timeframe (one or two hours). If this is done, the employer and the employee representatives must be advised of the limited timeframe. Optional language has been provided in the attached sample letter which addresses this issue. Utilizing this option may help control seemingly endless, rambling negotiations, as well as encourage the employer and the employee representatives to come to the conference prepared and organized. Obviously flexibility will be needed to avoid "killing" slow but fruitful negotiations.
6. Feedback to National Office
We are very interested in finding out what experiences the Area Directors are having at the informal conferences with the new penalties. Therefore, we suggest you survey the Area Directors and let us know of any questions or concerns that they would like us to address.
If you have any questions, they may be directed to Ray Donnelly or Art Buchanan at FTS 523-8041.