***DISCLAIMER***
The FAQs on this page should NOT to be used as a substitute for the VOSHA Review Board Rules of Procedure (“VRB Rules”). Instead, the goal of this page is to give a preliminary understanding of the procedures that are found in the VRB Rules. As a party appearing before the VRB, you need to read and refer to the VRB Rules directly and only use this FAQ page as a companion guide. After each question, you will find the citation for the VRB Rule(s) that are referenced in it.
• When and how does an employer file a notice of contest after getting a citation for a workplace safety violation from VOSHA?
• Who can participate?
• Is there a way to change the date by which an employer has to correct any violation in the citation?
• How are the VRB rules structured?
• Do the VRB Rules cover everything related to the process of handling a case before the VRB?
• Are there any samples of documents which I can use to prepare any pleadings or other documents which I might need to file with the VRB?
• Where and how do I file a document with the VRB?
• Where and how do I serve a document on a party?
• How do I know when I need to file a document with the VRB?
• Once a case has been filed with the Board, what steps take place before the hearing?
• What is the difference between simplified proceedings and conventional proceedings?
• What should I consider before electing simplified proceedings?
• Do I have to have an attorney represent me in VRB proceedings?
• If I choose not to have an attorney represent me, what should I keep in mind?
• What is the order of the proceedings?
• What happens after the hearing?
• What is a Hearing Officer’s Report?
• Are there opportunities to have a Hearing Officer’s decision reviewed before it becomes final?
• What if no one asks for a review of a decision?
• Can a party appeal a final order of the Board?
• Do all cases that are filed with the Board go to hearing?
When and how does an employer file a notice of contest after getting a citation for a workplace safety violation from VOSHA?
As an employer, if you want to dispute a citation issued by VOSHA, you must file a notice of contest of the citations and proposed penalties with VOSHA within twenty (20) days of receiving the citation. You also have the option to file a notice of contest to proposed penalties only to contest the way the amount of the penalty was calculated. [21 V.S.A. 226(a)].
If you do not file a notice of contest within that time period, you lose your right to have a hearing before the VRB on your case and to contest your violation.
To file a notice of contest, send a written statement saying you want to contest the violation to VOSHA. A sample of a notice of contest can be found on the VRB website.
Who can participate?
Employer:
See “When and how does an employer file a notice of contest after getting a citation for a workplace safety violation from VOSHA?”
Employee:
Any employees and authorized employee representatives, affected by a violation in the citation issued against their employer can participate in the case as parties if they notify the VRB 30 days prior to the hearing or for good cause at a later time. [VRB Rule 2200.20]
3rd Party
A Third Party, also called Intervenor, is a person with an interest in a given case (board of proceeding) who is not a party and has been granted intervenor status. Intervenor status can be requested 30 days prior to the hearing or for good cause at a later time. The Board or its hearing officer shall determine whether to grant the request. [VRB Rule 2200.21]
Is there a way to change the date by which an employer has to correct any violation in the citation?
Yes.
If you are an employer, you can file a petition for modification of abatement (correction) date with the Commissioner of Labor. VOSHA and any affected employee may object to an employer’s petition for modification. [VRB Rule §2200.37]
If you are an affected employee, you or your authorized union representative can file a notice of contest with the Commissioner of Labor with respect to the abatement (correction) period. VOSHA can file a statement within 14 days stating why the abatement date is reasonable. The affected employee or representative will then have 14 days to respond to VOSHA’s statement. [VRB Rule 2200.38]
Any notice of contest or petition for modification of an abatement date will be heard by the VRB, which will order an expedited proceeding. [VRB Rules 2200.38(c) and 2200.103]
How are the VRB rules structured?
There is a table of contents at the beginning of the VRB Rules, which can help guide you to the section you need, as listed below:
Subpart A - General Provisions
Subpart B - Parties and Representatives
Subpart C - Pleadings and Motions
Subpart D - Prehearing Procedures and Discovery
Subpart E - Hearings
Subpart F - Post Hearing Procedures
Subpart G - Miscellaneous Provisions
Subpart H - Settlement Part
Subpart M - Simplified Proceedings
You should look at the “Definitions” section under VRB Rules 2200.1 to help you understand the terms used throughout the VRB Rules.
Do the VRB Rules cover everything related to the process of handling a case before the VRB?
No. If the VRB Rules do not have a specific provision, then the Vermont Rules of Civil Procedure and the Vermont Administrative Procedures Act (3 VSA Ch. 25) will be used. [VRB Rule 2200.2b]
There are also Vermont statutes which have procedural provisions relating to the VRB. [21 V.S.A. 226, et.al.]
Are there any samples of documents which I can use to prepare any pleadings or other documents which I might need to file with the VRB?
Yes. The VRB website lists several pleadings and documents that may prove helpful.
Where and how do I file a document with the VRB?
All signed papers, documents, pleadings or other written communications in a case shall be filed with the VRB Clerk. [VRB Rule 2200.8]
When you file a document, it must be signed by the employer or the employer’s representative [VRB Rule 2200.32].
A document can be filed several different ways including by email. [VRB Rule 2200.8]
Where and how do I serve a document on a party?
You also need to send (serve) a signed copy of that same document filed with the VRB to any other parties, such as VOSHA, involved with your case. [VRB Rule 2200.7]
A document can be served several different ways including by email if agreed to in writing through an electronic service agreement. [VRB Rule 2200.7]
Be sure to keep a copy of any document, whether a pleading, correspondence, or any other written communication, for your records.
How do I know when I need to file a document with the VRB?
The rule on the type of document you are filing will indicate whether there is a time limit by which you must file a document with the VRB. For example, under VRB 2200.34(b) Answer, an employer must file an answer in response to VOSHA’s complaint within 21 days after VOSHA’s service of the complaint on the employer.
Once a case has been filed with the Board, what steps take place before the hearing?
When a case is filed with the VRB, either party may request or the VRB Chair or hearing officer may select simplified proceedings. [VRB Rule 2200.203] If so, either party may object. [VRB Rule 2200.204]
[See FAQ below on the difference between simplified and conventional proceedings.]
If you have objected to simplified proceedings, then the Commissioner of the Vermont Department of Labor (“Commissioner”) must file a complaint. You will then need to file an answer to that complaint. Once the VRB Clerk has received the Commissioner’s complaint and your answer, a conference call will be set up with the hearing officer. [VRB Rule 2200.51] Before the hearing date, the parties can take certain actions to agree on certain facts, so you don’t have to prove them at your hearing. Prior to the hearing of your case, the Hearing Officer may also hold another pre-hearing conference to consider settlement of matters to simplify the issues considered and/or expedite it. [VRB Rule 2200.51]
If you have not objected to simplified proceedings, the Commissioner does not need to file a complaint, and you do not need to file an answer to that complaint. Instead, the original citation and notice of contest fill the role of these documents. Parties exchange documents as required under VRB Rule 2200.206. Discovery is not allowed except at the discretion of the Hearing Officer. Very shortly after documents have been exchanged, a pre-hearing conference will likely be held with the Hearing Officer. [VRB Rule 2200.207]
A hearing will be held as soon as practicable on the issues that remain in dispute. [VRB Rules 2200.209]
What is the difference between simplified proceedings and conventional proceedings?
Simplified proceedings are designed to make the resolution of cases faster, to make it easier for those appearing before the Board or its hearing officer to proceed without an attorney, and to reduce paperwork and the expense of litigation. Eligibility for simplified proceedings is laid out in VRB Rule 2200.201.
In simplified proceedings, procedures are simplified in several ways including:
• No complaint and answer are filed by the parties. These functions are performed by the citation and notice of contest. [VRB Rule 2200.203(d) and 2200.205(a)]
• Formal motions and pleadings in general are discouraged since a primary purpose of simplified proceedings is to eliminate, as much as possible, the paperwork associated with conventional proceedings. [VRB Rules 2200.200(b) and 2200.204]
• Discovery, which is the process of obtaining evidence and information from the other party including requests for admission of certain facts, shall not be allowed except at the discretion of the hearing officer. [VRB Rules 2200.200(b) and 2200.208]
• Interlocutory appeals, meaning appeals of any decisions made by the Board or its Hearing Officer’s prior to a final decision, are not permitted. [VRB Rule 2200.200]
• If the case goes to hearing the parties will not be required to follow formal rules of evidence used in the Superior Courts of the State of Vermont except as directed by the hearing officer. [VRB Rule 2200.209]
What should I consider before electing simplified proceedings?
You should realize that because simplified proceedings were created to streamline the VRB process, certain legal tools normally used to litigate a case will not be available to you. These tools include interlocutory appeals, discovery, formal motions and pleadings in general. Also, because much of the discussion in simplified proceedings takes place “off the record,” your case may be more difficult to review at the Board or Superior Court level, should it go that far.
Do I have to have an attorney represent me in VRB proceedings?
No. You have the right to have an attorney represent you and even a person who is not an attorney represent you, however, you can choose to represent yourself. The choice is entirely yours. [VRB Rules 2200.22(a) and 2200.23]
If I choose not to have an attorney represent me what should I keep in mind?
The Commissioner of Labor has what is called the “burden of proof.” This means that VOSHA must convince the Hearing Officer that you, as the employer, committed the OSHA violation and that the proposed penalties are appropriate.
You may wish to present evidence – either by testimony of witnesses, documentation, or both that proves the facts that support your argument that there was no violation and/or there is a valid defense, such as employee misconduct. Make sure that any exhibits or evidence, including documents and pictures, are relevant to the facts you are trying to prove to support your argument. If they are not, your exhibits, documents and other document evidence may not be admitted as evidence and then the Hearing Officer cannot consider it in his or her decision, [VRB Rules 2200.70-72 and the Vermont Rules of Evidence.]
Make sure your witnesses, including yourself, have first-hand knowledge of the facts, and that they do not merely repeat what someone else has told them about the facts. If an individual can provide first-hand testimony to support your arguments and the facts you are trying to prove, that individual must appear at the hearing to give their testimony in person. [VRB Rules 2200.69 and the Vermont Rules of Evidence.]
Make sure that your argument sticks to the evidence presented, and that you do not refer to facts that are not relevant to the issues. [Vermont Rules of Evidence.]
What is the order of the proceedings?
During the hearing, oral or documentary evidence shall be received, and testimony shall be given under oath. Since the burden of proof rests with the Commissioner, VOSHA will be required to present their case first. When a witness is called by VOSHA, VOSHA’s attorney will first question him or her (called direct examination). Once VOSHA finishes with its questions of its witness, you can then have a chance to question the witness, (Known as cross-examination). If you object to the exhibits or other evidence offered by VOSHA, you must say why you are doing so. Your objection will be ruled upon by the Hearing Officer. If your objection is granted, VOSHA will not be able to have that piece of evidence admitted. If your objection is not granted, the evidence will be admitted. [VRB Rules 2200.69, 2200.72, and Vermont Rules of Evidence]
Once VOSHA has presented its witnesses and evidence, you will have the chance to present your witnesses and evidence. After you finish questioning each of your witnesses, VOSHA will have the opportunity to cross-examine him or her and can also raise its own objections to your questions and evidence presented.
After the parties have finished presenting the evidence, there is an opportunity for both sides to present oral arguments. Oral arguments are simply a summary of your case based on the evidence presented and allowed by the Hearing Officer. You will not need to present an elaborate argument since it will be clear enough from the evidence presented what the legal issues are. However, you cannot include or refer to any evidence which the Hearing Officer did not allow to be admitted in the summary of your case. [VRB Rule 2200.74]
Parties wishing to present written briefs, proposed finding of fact or conclusions of law shall notify the Hearing Officer at the end of a hearing so that a reasonable period for the prompt filing of written argument may be set. [VRB Rule 2200.74].
The hearing will be recorded and upon request, anyone requesting to listen to the recording can make arrangements with the Clerk. A transcript will be made of the proceedings if any party wishes to purchase one. [VRB Rule 2200.66].
What happens after the hearing?
After the hearing and after any transcript has been prepared and any written briefs are filed, the Hearing Officer will issue a written decision that is provided to all parties. The decision will set out a statement of facts, conclusions of law, and an order upholding or dismissing all, or a portion of, the citations and the proposed penalties. This decision is accompanied by a document called a Notice of Decision which states the date on which the Hearing Officer’s report will be filed with the Board and explains further post-hearing procedures. [VRB Rule 2200.90]
After the issuance of that decision, each party has the right to file a petition for discretionary review. [VRB Rule 2200.91] If that review is not granted, the parties have the right to appeal to the superior court where the violation occurred or where the principal business is located. [VRB Rules 2200.91(f), 21 V.S.A. 227(a)]
What is a Hearing Officer’s Report?
A Hearing Officer’s report consists of the Hearing Officer’s decision and the case materials, including any exhibits or other non-testimony evidence. The Hearing Officer shall file the report no later than 11 days following the date of mailing the decision to the parties. [VRB Rule 2200.90(b)]
Are there opportunities to have a Hearing Officer’s decision reviewed before it becomes final?
Yes. There are two ways a review of the Hearing Officer’s decision can happen before it becomes a final order of the VRB. First, either party can file a petition for discretionary review by the VRB. The petition should state clearly what part of the decision the party objects to and why. The petition should be filed with the Clerk by the date provided on the notice of decision, and/or the notice of docketing of the hearing officer’s decision. The second way a review can happen is if any of the three VRB members files a motion for review. [VRB Rule 2200.92(d)].
If the VRB decides to grant a party’s petition for review or a motion for review is made by a VRB member, the Board then decides whether to allow oral arguments or just have the parties submit briefs. [VRB Rules 2200.93 and 2200.95]
If a party’s petition for review is declined and no VRB member files a motion for review, the Hearing Officer’s decision then becomes the final order of the Board thirty (30) days after the Hearing Officer’s report was filed with the Board. [VRB Rule 2200.90(f) and 21 VSA 226(d)]
What if no one asks for a review of a decision?
If no review is requested, the Hearing Officer’s decision becomes the final order of the VRB thirty (30) days after the Hearing Officer’s report was filed with the Board. [VRB Rule 2200.90 and 21 V.S.A. 226(d)]
Can a party appeal a final order of the Board?
Yes. A party can appeal the final order of the VRB to the Vermont Superior Court in the county where the violation allegedly occurred or where the employer has their principal office, IF a petition for review has been filed with the Board. The appeal needs to be filed within thirty (30) days of the issuance of the VRB’s final order. [VRB Rule 2200.91(f), 21 V.S.A. 226(d) and 21 V.S.A. § 227]
Do all cases that are filed with the Board go to hearing?
No. A case can be settled by mutual agreement of the parties prior to the hearing, the Commissioner of Labor can decide to withdraw the VOSHA citation, or the employer can decide to withdraw their notice of contest. [VRB Rules 2200.100 and 2200.120]