Citation Received—Now What? A Guide to Timely Cal/OSHA Appeals

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Kevin Bland: Hello, everyone, and thank you for joining us for the Ogletree Deakins safety podcast. My name is Kevin Bland, and I’m a shareholder here in the Orange County, California office. Here with me today is Karen Tynan, a Sacramento shareholder. We are talking about Cal/OSHA appeals and the timeliness and also issues with late appeals. Also, I want to add, Karen is also our Workplace Safety Practice Group chair as well for the nation.

Karen Tynan: Well, there you go. I get to be the official feral cat herder of about 40 to 60 workplace safety attorneys. There you go.

Kevin Bland: Yeah, but I’m the head of the cats.

Karen Tynan: You’re the most feral of them all, Kevin. You are the most feral, for sure.

Kevin Bland: All right. Well, let’s dive into this issue here on Cal/OSHA appeals and timeliness and things that deal with deadlines, etc. So, first, let’s talk about now, Karen, how long do you have, once you get your citation, how long do you have to file the appeal?

Karen Tynan: Well, you’ve got 15 working days, and that’s very consistent with Fed OSHA for your notice of contest or other states. Oregon’s an outlier with a different timeframe. But Kevin, that 15 working days, if you choose to have an informal conference, or let’s say there’s a snowstorm or the power, that 15 days, you don’t get to go, “Oh, well, there were three working days where there was a tsunami,” or anything else, right? During COVID, we did have some things happen when government was closed down, but the most important takeaway for employers is to understand that 15 working days is a very black and white, very hard deadline. And you don’t get to call up and say, “Well, I was out of town on a prepaid vacation. I came back, I was looking through the mail, and eight days late. So, sorry.” Right? Nobody’s going to go, “Oh, okay, let me just write that down and give you a gold star for calling, and everything’s good.”

Kevin Bland: Right. Exactly, exactly. And just a thing that I do with my clients is, it’s supposed to be, what? It’s 15 working days from the date of receipt, and that doesn’t matter who received it at your office, by the way.

Karen Tynan: Right. Your mail room.

Kevin Bland: Your mail room, not you, not who the representative is or something, but there’s an issuance date on the citation. I find the safest thing to do is to start the 15 working days from that date, as opposed to receiving. Because what happens, Karen, if let’s say you get it 10 days later and then you file the appeal 15 working days after that. Now you’re 25 days from the issuance day, what happens?

Karen Tynan: Well, then what happens is you file your appeal and you’re going to get a query from the appeals board saying, “This appears to be late. Explain yourself.” And they’re going to ask the district manager for the copy of the certified mail receipt or the proof of service, and you end up getting into a dispute. So, I follow your rule of thumb. When I docket an appeal deadline, I go off the issuance date, because I don’t want to be explaining, “Oh, well, the mail room signed for it or this or that.” It could be very problematic where say an employer has a mailing address, and it’s different from the site address where the incident happened, and people who are knowledgeable. And then you get a citation packet into the corporate headquarters, and no one knows what they’re looking at, and maybe it bounces around to risk management, then to say right? And pretty soon, the days are just dribbling away.

So I’m like you, I go off the issuance date, and I really try, if we’re involved in the inspection, I ask the inspector to serve me by email or send me a courtesy copy so I know and can get it docketed. And also, I go over with the client and say, “This is the mailing address. Who’s there? Who’s going to sign for it? How are you going to get it in your hot little hands?” Right?

Kevin Bland: Right. No, exactly. And I’m glad you brought that up when we’re representing clients. I started doing that, I don’t know, before it was invoked, and always have it in writing. And what’s interesting is, let’s say they get us involved at the inspection stage. It says that in the notice of rep, right, Karen, or if we get into the document response, it says in our document response. And just to share a bit, there have been cases where they ignored that written order that we are the representative and the receiver of all correspondence and communications, and then they send it to–

Karen Tynan: They send the citations–

Kevin Bland: … the job site or whatever to the client, don’t send it to us. I have defeated Cal/OSHA on late appeal–

Karen Tynan: Me too.

Kevin Bland: … because of that. And I think you have too.

Karen Tynan: I think in the last five years, I’ve had that happen three times, and I was thinking about this before the podcast. And each of those three times in the last five years, I’ve been able to prepare declaration and then also show the notice of rep that says–

Kevin Bland: Exhibit A.

Karen Tynan: Right. “Dear Inspector, moving forward, please serve us with all communications, notices, citations, blah, blah, blah.” And then when you have that in the declaration, the judge is just like, “Well, bad on you, Cal/OSHA. Yeah, Mr. Employer or Mrs. Employer, you get to file a late appeal now because Cal/OSHA didn’t serve you properly.”

Kevin Bland: Exactly. I know we haven’t talked about this before, Karen, but this came up and we haven’t really approached it with the board or anything, or I haven’t, but most corporations have a place for service of process. And I don’t know, but I’d like to get your take on what you think of this. Where it comes up is, let’s say you have a big box store and they were there and manager A was working there and then manager B takes over three months after the inspection, and manager B gets this random letter from Cal/OSHA, and all legal documents are supposed to be served on the corporation. Do you think that’s a good idea to try to make that change or a bad idea or just neutral on it? I’m just curious.

Karen Tynan: I think it could help bigger employers because we have seen this with box stores, or with employers that have a lot of remote locations, right? And then the inspector sends the citations to the store as the site address, as the employer address. Even though if you went on to the Secretary of State website, you’d see that ABC big store expects to be served by a company that they utilize to make sure all their legal filings come to them. I do think it’s worth continuing to discuss at the appeals board. I think there are pros and cons to it.

And in fact, I think you and I are thinking of a similar situation where a big box store got a set of citations, the manager wasn’t familiar with it, put them in the circular file. Right? Months go by, pretty soon you’re getting the letter from Cal/OSHA collections saying, “When are you going to pay the citations?”

Kevin Bland: Which point is, and it’s amazing, they have such a difficult time getting the citation to the right place, but they always seem to get the right address for the collection letter that comes six months later saying you owe $18,000 in penalties.

Karen Tynan: And pay it now.

Kevin Bland: That one they seem to get. Yeah, and pay it now. And it’s too late to appeal or do anything with. So, I find that interesting. So, what are some problems and how do employers get into difficult situations with appeals? We’ve talked about this a little bit. Is there anything besides the wrong address or sent to the main address, etc., that we haven’t talked about yet in that?

Karen Tynan: I think what can happen with some employers is you’ve got Cal/OSHA maybe interfacing at a local location, but then maybe the VP of safety’s been getting them documents. And then maybe the risk manager’s been involved in arranging interviews, whatever it is, or providing proof of insurance. And then if no one’s managing the process or no one’s this one single point person, you can have problems. So, I like seeing either us or a single point within the employer. I like for us as counsel to get a courtesy copy or be served with the citations. And that’s the best way to start and avoid the problems with late appeals because, and I think this is what we’re going to talk about next, Kevin, is Cal/OSHA litigation is not like civil litigation, where if you forget to file an answer or something gets missed and a plaintiff takes a default, you can get out of it.

Kevin Bland: Yeah. Excusable neglect is the doctrine, right?

Karen Tynan: Right.

Kevin Bland: And what’s amazing is, and civil, which you think is big time compared to administrative-

Karen Tynan: Right, tougher.

Kevin Bland: … tougher and all the things that go with that, if you’re a corporation, you have to be represented by an attorney in the civil court. And so, it’s an attorney that misses a deadline. But in our arena, they’re not all attorneys, sometimes they’re not even a safety rep but it’s mom and pop’s grocery store and pop is the one that would have been interfacing, and mom got the letter. There is no excusable neglect, which I think is–

Karen Tynan: It’s the reverse of what you would think. Right?

Kevin Bland: Yeah, yeah.

Karen Tynan: You would think that in this informal area of administrative law, you’d be able to say, “Oh, I got this late. I was on vacation or something didn’t get forwarded properly to me,” or whatever. No, no, no, no, no. Right? So, it’s very different. And so, it’s something we talk about in webinars and when we do seminars and even just informally interfacing with clients, is this reminder about the importance of this correspondence and not sitting on your hands with it and getting on top of it when you get the citations.

Kevin Bland: No, absolutely. And the part that slays me, and this is a little bit off topic, but I can’t help myself.

Karen Tynan: It’s okay.

Kevin Bland: There’s no prejudice to the division and prosecuting their case. We’re prosecuting… I went to trial on one that was 12 years old. Now, if the appeal was four months late, do you think it changed anything?

Karen Tynan: No.

Kevin Bland: And that’s the part that is so frustrating with this, but. So, what about–

Karen Tynan: For sure.

Kevin Bland: There’s some new cases that have come out, it’s a little thin bit of daylight. Do you want to tell us what’s going on with those and what happened there?

Karen Tynan: Yeah. So, it’s very standard. You and I see the Cal/OSHA reporter, the appeals board cases that come out. And all the time we’ll see late appeal cases that get denied, right? Some employer will say, “Oh, I didn’t get the appeal,” or whatever, for whatever reason, it was late. And they don’t get to file a late appeal. But in 2025, there was one case, and in that case, we do have a tiny bit of daylight on late appeals. So, you have a whole bunch of cases that say, “Eh, there’s really no good excuse for a late appeal.”

Kevin Bland: 15 minutes late.

Karen Tynan: But in this Concord Farms case, the appeals board looked at an employer that had some really substantial miscommunications with their counsel. The employer thought the appeal had been filed. An attorney left a law firm, miscommunicated with their peers about the status of the appeal. Time went by, and then subsequently, the employer’s new counsel figured out no appeal was filed. And the appeals board, when the employer appealed that late denial of a late appeal, the appeals board gave a very thin piece of daylight and said, “Look, in this kind of scenario where the employer’s making these good faith efforts and there appears to be this miscommunication or misfeasance or neglect from the attorney,” and through no fault to the employer, and the employer was making efforts to follow up. The employer is emailing or calling, trying to track down with their counsel, “Hey, what’s the status of this appeal? I want to appeal.”

We got some daylight on that in that a late appeal would be allowed, but it is very narrow circumstances. And our message in this podcast I think is, don’t rely on excuses or submitting a declaration for why your appeal is late, stay on top of the deadlines, but there is a little bit of daylight if there were some problems with filing your appeal.

Kevin Bland: And I agree with that completely. And so, we’ve talked a lot about screwing it up, but we never said how to do it, how to do it. What’s the process for filing an appeal? And then if you do have it late, or let’s say you use the date, you don’t use the date of issuance and you use the date of receipt and when you file. How does that work and what’s the difference?

Karen Tynan: Well, you and I deal with the OASIS system a lot, which is the filing system. It’s the equivalent of PACER, the federal court system. We have OASIS, and in California workers’ comp has EAMS, but we have OASIS for the appeals board. And so, you end up filing an appeal in the OASIS system. Now for the, like you call them, the mom-and-pop employers, they can even call in or fax an appeal. Right? And we’ve had times where, let’s say, I can’t remember, maybe it was a couple of years ago, we had some kind of computer problem and Debbie faxed in an appeal, which I hadn’t done in years. She got out the old fax machine and sent off the appeal, and it got faxed in by the deadline.

So, the front page of your citations has the appeal instructions, and so it does have the dates for the deadlines and the methodology for the appeal. And then what we see, there are particular forms that you fill out and there are also the affirmative defenses to assert. It’s not a particularly difficult way to start your appeal process or litigating your Cal/OSHA citations, but there are some I’s to dot and T’s to cross, you and I talk about that, in filing the appeals. And you do want to get it right because, and I’ll say this, Kevin, sometimes when we come into cases late and we look at the appeal that got filed by, let’s say Roger, the head of HR that didn’t regularly do this, but he was like-

Kevin Bland: I’ve had Roger a bunch of times, yeah.

Karen Tynan: Yeah, Roger from HR filed the appeal, and dang it, he didn’t check one of the right boxes. So, then you and I have to do a motion to amend the appeal, right?

Kevin Bland: Yep, and that’s double what it takes for us to file the appeal originally. And on that point, just a couple points on if you are filing your own on appeal, and important to check all the boxes, but it’s also important not to check the wrong boxes.

Karen Tynan: There you go.

Kevin Bland: So, on a general, if you’re appealing a general, what are the two boxes, Karen, you should never, ever, ever, ever, ever check because it could make it a serious labor?

Karen Tynan: Classification and penalty.

Kevin Bland: Exactly.

Karen Tynan: So, and Kevin and I both had this happen at trial, where someone checked the box on a general and put the issue of classification at issue. And then some Cal/OSHA attorney or district manager says, “Well, I’m going to amend it to a serious.” And the greatest thing is to be sitting there at trial when someone tries that and then you say, “Oh, classification isn’t at issue. We didn’t appeal classification.”

Kevin Bland: Exactly.

Karen Tynan: And then their face just drops and they go, “Oh, okay.” And I’ve had that happen at settlement conferences also, Kevin, where, and this is a, I would say-

Kevin Bland: Settlement conference post appeal.

Karen Tynan: Right, post appeal. And you’re at a settlement conference and the Cal/OSHA attorney on the other side says, “Well, if you don’t settle today, I’m going to amend citation 1.1 from a IIPP general to a serious.” And I say, “Well, you can’t do that.” And we did not appeal the classification. The only classification this citation can be is a general.

Kevin Bland: Yeah, or less.

Karen Tynan: Or less. And–

Kevin Bland: And there isn’t less. There’s just a notice, right?

Karen Tynan: Right. People look at government forms as something, “Oh, I’m just going to sit here,” or they’ll ask ChatGPT what to do, right? And I have to say, the appeal process in California is different from Washington State, it’s different from Fed OSHA, it’s different from Nevada OSHA. And so, what I’ve seen some folks do as we’ve started to use AI more the last few years, is they’ll say, “Oh, well, AI told me to do a notice of contest and follow, and that’s what they do in Fed OSHA. So that’s what I did in Cal/OSHA.” And I say, “Okay, well, that was wrong. Thank you for trying. You get an A minus for effort, but an F for execution.”

Kevin Bland: Exactly, exactly. Just a footnote on, because we talked about checking the box on classification, reasonableness of penalty. You think, “Okay, well, hey, this thing is a thousand bucks, it should only be 200 bucks.” The reason we don’t do that and check that box is there’s case law, there’s decisions after reconsideration that says penalty is attached to classification. So therefore, now you have appealed classification. I just wanted to put that footnote in, that’s why you don’t check either one on a general or a regulatory.

Karen Tynan: Yes, just a little practice pointer out there. And I do know, Kevin, you know that it’s been mentioned to me by not only Cal/OSHA attorneys but by some inspectors that they listen to our podcasts, so.

Kevin Bland: Oh, you’re kidding me? Oh yeah, if I would’ve known this was public, I’d be a little more tame on what I say there.

Karen Tynan: No, but you know what? I’m putting it all on the table. And what we’re saying is the truth, we’re not using some tactic that our defense counsel peers don’t use. We all know this, the head of legal knows this. I just like to mention that so that I can give a shout-out to the inspectors, district managers, and Cal/OSHA attorneys that also enjoy our podcast.

Kevin Bland: Yes, and they have a difficult job too, so.

Karen Tynan: Yes, there you go.

Kevin Bland: And the last quickly here in 20 seconds or less, what’s the best practice to avoid a late appeal?

Karen Tynan: Especially if you have a serious citation, accident related, it’s not a simple process in the way that you…a simple process that you can’t mess up. It is a simple process that has some details that you must get right. That’s the best way to talk about this appeal process.

Kevin Bland: No, I agree, and I will sum it up like this. It is no longer your father’s Cal/OSHA anymore. It’s a whole different ballgame. So, with that–

Karen Tynan: Thank you.

Kevin Bland: Yeah, thanks for listening to Karen and Kevin today. Look for our blog articles, and I mean Karen’s because I don’t write them. Check out our practice page on our website at ogletree.com. Also check out our workplace safety practice group on the same website, it’s got a lot of great information, and we have a lot of great attorneys that can check out their bios. And then watch out for our webinars, we host webinars. We do webinars for insurance brokers and different folks and trade associations, so stay tuned for that.

Karen Tynan: For sure.

Kevin Bland: Thanks for listening.

Karen Tynan: And stay safe, everybody.

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