On the front lines with Fisher Phillips:
by Travis Vance and Pamela Williams
Consider the following situation: OSHA conducted an inspection of your worksite following an accident and issued a serious citation to your company for a lock out/tag out violation. You believe the citation is clearly unfounded for various legal reasons, including the fact that the company has robust safety and training programs and sound lock out/tag out protocols and policies. Your company would like to contest the citation but is not sure it can afford to pay an attorney to fight the citation.
There may be relief. The Equal Access to Justice Act may provide your company with an avenue to recoup costs of being forced to challenge the citation.
What is the Equal Access to Justice Act?
The Equal Access to Justice Act (EAJA), 5 U.S.C. 504, allows attorney’s fees and other expenses to be awarded to eligible individuals and entities who are parties to certain administrative proceedings (called “adversary adjudications”), including those before the Occupational Safety and Health Review Commission (OSHRC). An eligible party may receive an award when it prevails over the Secretary of Labor, who prosecutes OSHA citations, unless the Secretary’s position in the proceeding was substantially justified or special circumstances make an award unjust.
The OSHRC has promulgated rules for identifying the parties that are eligible for awards and the proceedings that are covered. The rules also explain the process for applying for attorney’s fees and other expenses and the standard the OSHRC should apply in deciding such awards.
When does the EAJA apply to OSHRC proceedings?
The EAJA applies to adversary adjudications before the OSHRC. The party seeking an award must be successful in the adjudication before the OSHRC. ”Successful” essentially means that the OSHRC found that OSHA’s position in the proceeding was not substantially justified. OSHA then has the burden to show that its position was, in fact, substantially justified. If OSHA is unable to meet the burden of persuasion, the OSHRC may award the prevailing party reasonable fees for an attorney and expert witness.
Who is eligible to apply for an award under the EAJA?
The OSHRC’s rules specifically limit who is eligible for an award of attorney’s fees and other expenses under the EAJA. 29 C.F.R. § 2204.105 establishes who is eligible. First, the applicant must be a party with somewhat limited resources. Subsection (b)(5) of section 2204.105 limits eligible corporate applicants to any “partnership, corporation, association, unit of local government or public or private organization that has a net worth of not more than $7 million and employs not more than 500 employees.” The applicant’s net worth and number of employees are determined as of the date the notice of contest was filed.
Applying for an award of fees
An application for an award of fees may be filed whenever a party has prevailed in a proceeding. It must be filed no later than 30 days after the time for filing an appeal has expired. The application should show that the party seeking an award of fees prevailed and identify OSHA’s position that the applicant alleges was not substantially justified. The applicant must state how many employees it has and provide a statement regarding the applicant’s net worth. The hourly rate for attorney’s fees under the EAJA for OSHRC matters is currently capped at $125 per hour.
If OSHA issues your company a citation without substantial justification, consider the EAJA when deciding whether to contest the citation. If your company has a net worth less than $7 million and employs fewer than 500 employees, you may be able to obtain an award of attorney’s fees and costs from the OSHRC if you prevail in contesting a citation. Basically, the government may be forced to bear the burden of your attorney’s fees if OSHA was not substantially justified in issuing a citation to your company.
Travis Vance is a partner in the firm’s Charlotte office. He can be reached at firstname.lastname@example.org or 704.778.4164. Pamela Williams is a partner in the firm’s Houston office. She can be reached at email@example.com or 713.292.5622. Visit their website at fisherphillips.com .