Guide to E-Z Trial Procedures

Section 2 - E-Z Trial--An Overview For Employers And Employees

What is an E-Z Trial?

E-Z Trial is a simplified procedure designed to resolve small and relatively simple cases in a less formal, less costly, and less time-consuming manner. The Commission's Chief Administrative Law Judge or the judge assigned to your case notifies you that your case will be heard under E-Z trial. Even though the legal process is streamlined, the proceedings are still a trial before an Administrative Law Judge with sworn testimony and witness cross examination.

Major Features of E-Z Trial

Under E-Z Trial procedures:

1. Early discussions among the parties and the Administrative Law Judge are required to narrow and define the disputes between the parties.
    
2. Motions, which are requests asking the judge to order some act to be done, such as having a party produce a document, are discouraged unless the parties try first to resolve the matter among themselves.
    
3. Disclosure.  The Secretary is required to provide the employer with inspection details early in the process. In some cases, the employer will also be required to provide certain documents, such as evidence of their safety program, to the Secretary.
    
4. Discovery, which is the written exchange of information, documents and questionnaires between the parties before a hearing, is discouraged and permitted only when ordered by the judge.
    
5. Appeals of actions taken by the judge before the trial and decision, such as asking the Commission to rule on the judge's refusal to allow the introduction of a piece of evidence, called interlocutory appeals, are not permitted.
    
6. Hearings are less formal. The Federal Rules of Evidence, which govern other trials, do not apply. Instead of submitting briefs (written arguments explaining your position in the case), the parties argue their case orally at the conclusion of the hearing. In many instances, the judge will render his or her decision "from the bench," which means the judge will state at the end of the hearing whether the evidence and testimony proved the alleged violations and will state the amount of the penalty the employer must pay, if a violation is found.

Cases Eligible for E-Z Trial

It is possible that not all relatively small cases eligible for E-Z Trial will be selected.  (Rules 202 and 203(a) ) The Chief Judge will assign cases for E-Z Trial or, if your case is not selected, you may request that it be chosen. Cases appropriate for E-Z Trial are  those with one or more of the following characteristics:

• relatively simple issues of law or fact with relatively few citation items,
• total proposed penalty of not more than $20,000,
• no allegations of willfulness or of repeated violations,
• no fatalities,
• a hearing that is expected to take less than two days, or
• a small employer whether appearing with or without an attorney.

Employee or Union Participation

Affected employees or their unions who file a notice of contest may also request E-Z Trial. Unions or an affected employee (one exposed to the alleged health or safety hazard) wishing to participate in a dispute may file a notice of contest (see Appendix 1C) challenging the reasonableness of the period of time given to the employer for abating (correcting) an alleged violation.  Even if the employer does not contest the citation, unions or affected employees can object to the abatement period.  This must be done in writing within 15 working days of the employer's posting of the citation. You might consider E-Z Trial if you or your local union wish to avoid the time and expense of a full blown hearing.

When affected employees or their unions contest the time allowed for abatement, and the employer does not contest the citation, the employer may in turn elect to participate.  Once the abatement date has been contested, other employees or unions may likewise elect to participate.

An employee or a union must mail a written notice of contest to the Area Director of the OSHA office that issued the citation, not the Commission .  First-class mail will be sufficient for this purpose. The Area Director's name and address will be listed on the citation. This process is governed by Section 10 of the Act and Commission Rules 20, 22 and 33.

Should You Ask for E-Z Trial?

If you are an employer and your case was not designated for E-Z Trial, you might consider E-Z Trial if you received a citation from the Occupational Safety and Health Administration, OSHA, and want to fight it but the time and expense of a conventional hearing may cost more than either the penalty or abatement.

Your case may be appropriate for E-Z Trial but that does not necessarily mean that your particular interests are best served by requesting an E-Z Trial.  In addition to considering time and expense, you should base your decision on the facts of your case, the nature of your objections to the citation, and what you will try to show the judge at the hearing.

You should also remember that, in most circumstances, your interests may be best served if you can reach a fair and equitable settlement of your case with OSHA before a hearing. Either way, E-Z Trial or conventional, the proceedings are legal and the Secretary of Labor will probably be represented by an attorney.  You have the right to represent yourself or to be represented by an attorney or by anyone of your choosing.

Complaint and Answer

Once your case is selected for E-Z Trial, the complaint and answer are not required. However, until an employer is notified that a case has been designated for E-Z Trial, conventional procedures should be followed and an answer must be filed.   (Rule 205(a ))

Beginning E-Z Trial

Once the Commission receives a notice of contest, the Chief Administrative Law Judge may assign a case for E-Z Trial.  A party may also request E-Z Trial in writing within 20 days of the date on the notice of docketing. You need not give any reasons for requesting E-Z Trial. A letter saying simply "I request E-Z Trial," and indicating the Docket Number assigned to your case, is sufficient. The letter must be sent to:

Executive Secretary
U.S. Occupational Safety and Health
Review Commission
1120 20th Street, N.W., 9th Floor
Washington, D.C. 20036-3419

Notifying Other Parties

It is required that a copy of your request for E-Z Trial must be sent to the Regional Solicitor of the Department of Labor office for your region. The address is on your Notice of Docketing.  All employee representatives, including an employee union, that have elected party status must also be sent a copy of your request for E-Z Trial. A brief statement indicating to whom, when, and how your request was served on the parties in the case must be received with the request for E-Z Trial.  An example of such a "Certificate of Service" follows:  (Rule 203(b) )

Example: I certify that on October 1, 1995, a copy of my request for E-Z Trial was sent by first class mail to Jane Doe, Office of the Solicitor, U.S. Department of Labor, 123 Any Avenue, Anytown, NC 99999 and to John Doe, President, Local 111, International Brotherhood of Machinists, 123 B Street, Othertown, NC 99990 (see Appendix 5B).

Objections to E-Z Trial

Should you decide to object to another party's request for E-Z Trial, all you need to do is file a brief written statement with the judge assigned to your case or, if the case has not been assigned to a judge, with the Chief Administrative Law Judge, explaining why your case is inappropriate for E-Z Trial. The judge is required to rule on a request for E-Z Trial within 15 days. Therefore, you must file your objections as soon as possible.

Discontinuing E-Z Trial

If it appears that a case is inappropriate for E-Z Trial, the use of this method may be discontinued by the judge at his or her discretion. A party may also request that the judge discontinue E-Z Trial. The request must explain why the requesting party believes that the case is inappropriate for E-Z Trial. If you agree with another party's request to discontinue E-Z Trial, you should submit a letter saying so. When all parties agree that a case is inappropriate for E-Z Trial, the judge is required to grant the request. If the judge orders that a case be taken out of E-Z Trial, the case will proceed under the Commission's conventional procedures.

If you disagree with another party's request to discontinue E-Z Trial and you want your case to continue under E-Z Trial rules, you have seven days to file a letter explaining why you disagree. (Rule 204(b) )

Restrictions on Obtaining Information and Flexibility Regarding Evidence

Discovery (the process by which one party obtains information from another party before a hearing) is restricted under E-Z Trial.  Unlike conventional procedures, discovery is discouraged and will occur only when  ordered by the judge. Rules governing the admissibility of evidence are also modified in E-Z Trial. The judge is not bound by the technical requirements of the Federal Rules of Evidence. This means that the Judge may be more flexible in determining what evidences submitted and how those submissions can be made.(Rules 208 and 209)

Required Information Disclosures

In cases designated for E-Z Trial, the Secretary of Labor must give the employer, free of charge: a copy of  documents generally called the OSHA investigatory report (OSHA forms 1-A and 1-B, the narrative and worksheet) within 12 working days after a case has been designated for E-Z Trial, and, within 30 calendar days, copies of photographs and videotapes .  The Secretary must also give the employer any evidence in her possession, which is information that may clear one of a charge or of fault or of guilt, therefore, it might help the employer's case. When an employer admits that the violation occurred, but offers an excuse for the violation (an "affirmative defense"), the judge will order the employer to disclose to the Secretary documents relevant to the defense. (Rules 206(a) and (b))

Pre-hearing Conference

Soon after the parties exchange the required information, the judge will hold a pre-hearing conference to either reach  settlement in the case or to find out which factual and legal issues the parties agree on.  This discussion may be conducted in person or by a telephone conference call. The purpose of the pre-hearing conference is to settle the case or, if settlement is not possible, to determine what areas of dispute must be resolved at a hearing.  Even if a settlement of the entire case cannot be reached, the parties are required to attempt agreement on as many facts and issues as possible.  The discussion will include the following topics:  (Rule 207)

1. Narrowing of Issues. The parties will be expected to discuss all areas in dispute and to resolve as many as possible. Where matters remain unresolved, the judge will list the issues to be resolved at the hearing.
    
2. A Statement of Facts. The parties are expected to agree on as many of the facts as possible.  Examples of these facts include: the size and nature of the business, its safety history, details of the inspection, and the physical nature of the worksite.
    
3. A Statement of Defenses. You will be required to list any specific defenses you might have to the citation. The burden is on the Secretary to establish that each violation occurred.  However, you should be prepared to tell the judge all reasons why you believe that the Secretary's allegations are wrong.
   
   You might also have what is called an "affirmative defense." An affirmative defense is a recognized set of circumstances in which an employer is excused from a violation even though the employer did not comply with the cited standard.  For example, you may believe that the alleged violation was the result of an employee acting contrary to a work rule that has been effectively communicated and enforced. Or, you may think that compliance with the standard was impossible or infeasible, or would have resulted in a danger to employees that was greater than the danger that the standard was designed to prevent.
   
   You should be aware that the burden of proving an affirmative defense is on you, the employer.  Therefore, if you argue that the violation was the result of employee misconduct, at the hearing you will have to prove to the judge that you had an effectively communicated and enforced work rule.  As will be discussed later, if you raise an affirmative defense, the judge may require you to provide the Secretary of Labor with certain documents before the hearing regarding the defense. For example, if you claim that an employee violated a written work rule, you will probably be required to provide the Secretary with a copy of your company's safety rules.
   
   It is critical that you set forth your defenses at the pre-hearing conference. You may be prohibited from later asserting any defenses not raised at the pre-hearing conference. Remember, even if your defense does not excuse the violation, the judge may find it relevant in determining the penalty amount.
    
4. Witnesses and Exhibits. The parties are expected to list the witnesses they intend to call if there is a hearing, and to list any documents or physical evidence they intend to introduce to support their positions. For example, you should list any photographs that you believe show the existence of a safety device that the Secretary claims you failed to provide.

Motions

A motion is a request asking that the judge direct some act to be done in favor of the party making the motion.  E-Z Trial is designed to eliminate, when possible, motions and similar documents. Aside from motions to begin or discontinue E-Z Trial, motions made to the judge will not be received favorably if the parties have not first discussed the matter and tried to resolve the problem without filing the motion. (Rule 205(b) )

Hearings

The judge will hold a hearing as soon as possible after the pre-hearing conference on the issues the parties have not resolved. A court reporter will be present and will prepare a transcript of the hearing. At the beginning of the hearing, the judge will officially enter into the record agreements reached by the parties as well as all defenses raised at the pre-hearing conference.  The record includes all papers served on the other parties, all judges' rulings, transcripts and exhibits presented at the hearing. The judge will determine whether other agreements can be reached and if so, enter these into the record. The judge will then conduct a hearing on any remaining areas of dispute. Although the Federal Rules of Evidence will not apply, each party will have the right to question all witnesses and to introduce relevant evidence.  All testimony will be under oath. (Rules 209(b)-(f) )

Copies of the transcript may be purchased at your own expense. At the close of the hearing, you may make an oral summary of your case to explain your position on the record.

Although it is not required, you may ask the judge for permission to file a brief (written arguments)  after the hearing. It is expected that, in the usual E-Z Trial case, the judge will not find such written arguments necessary to aid him or her to reach a decision. If you intend to file a brief, you should inform the judge of your intention to do so during the hearing.  The judge will then set a due date for your brief if permission to file is granted.

If a brief is allowed, it should contain a summary of the facts as established at the hearing, the parts of the OSH Act or the regulations or standards that are involved, and an explanation, or argument, of how the law or past Commission decisions support your position.

In some instances, the judge may issue a decision at the hearing immediately after the oral arguments of the parties.  This is called ruling "from the bench." In such a situation, the judge, within 45 days after the hearing ends, will place a written version of the oral decision in the record.  When the judge finds it necessary to deliberate further and does not rule "from the bench," he or she will write a decision that generally will be sent to you within 45 days after the close of the hearing (see Appendix 2).

Review of the Judge's Decision

Any party dissatisfied with the judge's decision may petition the Commission for review of that decision.

No particular form is required for the petition (see Appendix 3).  However, it should clearly explain why you believe that the judge's decision is in error on either the facts or the law or both.  Review of a judge's decision is at the discretion of the Commission. It is not a right. (Rules 91 and 210)

Your petition should be filed no later than 20 days after issuance of the judge's written decision.  Under the law, the Commission cannot grant any petition for review more than 30 days after the judge's decision is filed. Therefore, your petition must be filed as soon as possible to obtain maximum consideration.

The Commission will notify you whether your petition has been granted (see Appendix 4).  If it is granted, your case will then proceed under the Commission's conventional rules.

Last Updated: March 27, 2003

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