OSH Law Primer, Part XIV: Did OSHA Get It Wrong? Understanding Judicial Review Under the OSH Act

Quick Hits

• Employers can challenge OSHA’s findings through the administrative system and, if necessary, seek federal court intervention, though winning on appeal is difficult.
• Appeals from OSHRC decisions must be filed within sixty days in the appropriate U.S. court of appeals, with strict adherence to initial administrative procedures.
• Federal courts review OSHRC’s decisions with substantial deference, making it challenging for employers to overturn findings unless they are arbitrary, capricious, or legally flawed.

By the time this series is complete, the reader should be conversant in the subjects covered and have developed a deeper understanding of how the OSH Act and OSHA work. Of course, the series is not—nor can it be—a comprehensive study of the OSH Act or OSHA capable of equipping the reader to address every issue that might arise.

The first article in this series provided a general overview of the OSH Act and OSHA; the second article examined OSHA’s rulemaking process; the third article reviewed an employer’s duty to comply with standards; the fourth article discussed the general duty clause; the fifth article addressed OSHA’s recordkeeping requirements; the sixth article covered employees’ and employers’ respective rights; the seventh article addressed whistleblower issues; the eighth article covered the intersection of employment law and safety issues, the ninth article discussed OSHA’s Hazard Communication Standard (HCS); the tenth article examined voluntary safety and health self-audits; the eleventh article, in two parts, reviewed OSHA’s citation process; the twelfth article covered OSHA inspections and investigations; and the thirteenth reviewed OSHA’s ability to seek criminal penalties.

When OSHA shows up at an employer’s door, the path forward can feel a bit like standing at the edge of a cliff—especially if citations or penalties may follow. But what happens if the employer challenges OSHA’s findings and still disagrees after the case is heard by an administrative law judge (ALJ) or the Occupational Safety and Health Review Commission (OSHRC)?

This article explains how employers can ask a federal court to step in, what the process looks like, and why winning on appeal is often an uphill battle.

Purposefully Limited Role for the Courts

The OSH Act was designed to resolve most disputes within the administrative system. That means the heavy lifting—investigating, citing, defending, and adjudicating workplace safety violations—happens within OSHA and OSHRC, not in the courtroom.

Still, federal courts do have a say in a few important scenarios:

• Appeals of final OSHRC decisions in contested enforcement actions
• Legal challenges to new OSHA standards, within sixty days of their finalization
• Enforcement of subpoenas, imminent danger injunctions, or anti-retaliation orders

Even when a dispute does make it to the court system, the review is limited and courts give great deference to many of OSHRC’s conclusions.

Standing to Appeal?

Most appeals come from employers who have received citations and do not like the outcome at OSHRC. However, the secretary of labor can also appeal if the secretary believes OSHRC reached the wrong conclusion.

Employees or their representatives (like unions) may join the process if they filed a valid notice of contest. But they cannot force the secretary to appeal—so if the DOL declines to take further action, the employees’ hands are tied.

When and Where to File

Appeals from OSHRC decisions go straight to a federal appellate court—the United States Court of Appeals. Employers or the secretary can choose to file in: (1) the circuit where the violation allegedly occurred, (2) the circuit where the employer’s principal place of business is located, or (3) the District of Columbia Circuit.

Timing is important: a petition must be filed within sixty days of the final order. If an employer misses that deadline, OSHRC’s decision becomes final and enforceable—even if the employer still believes it was wrong.

Initial Administrative Hoops

Employers must play by OSHA and OSHRC’s rules before heading to federal court. That means:

• Timely contesting the citation within fifteen working days
• Going through an ALJ hearing
• Requesting Commission review—OSHRC, however, does not have to grant a review.

Skipping any of these steps will close the door on later judicial review.

What Courts Review—and How Closely

Federal appellate courts are not interested in retrying the case. They review the written record and the arguments already made. Federal appellate courts uphold OSHRC’s findings of fact if they are supported by substantial evidence—which just means a reasonable person could believe the conclusion. For legal conclusions, the court will overturn them only if they are:

• arbitrary or capricious;
• contrary to the law or the U.S. Constitution;
• outside OSHA’s legal authority; or
• issued without following required procedures.

Thus, employers face an uphill battle when challenging OSHRC’s conclusions. Moreover, courts generally tend to give deference to OSHA and OSHRC, particularly when interpreting technical safety rules. However, some change may be on the horizon.

The Courts Are Watching, but They Are Not Driving

Judicial review is a critical backstop in the OSHA system, but it is not a first stop—and it is not a guaranteed reset button. It is available only after the full OSHRC process plays out, and the odds of reversal are steep, given the deference courts give to agency decisions.

Still, for employers with significant stakes—such as hefty penalties, reputational harm, or precedent-setting issues—judicial review can be an important and sometimes necessary final step in defending their position.

Ogletree Deakins’ Workplace Safety and Health Practice Group will publish additional articles on the Workplace Safety and Health blog as an ongoing part of its OSH Law Primer Series. The next article in the series addresses imminent danger inspections.

Follow and Subscribe
LinkedIn | Instagram | Webinars | Podcasts