2010 Hawaii Code
DIVISION 1. GOVERNMENT
TITLE 21. LABOR AND INDUSTRIAL RELATIONS
396. Occupational Safety and Health
§396-11 Review. (a) Any citation, proposed penalty, or order of the director shall be final and conclusive against the employer unless the employer files with the director a written notice of contest of the citation, the abatement period stated in the citation, the proposed penalty, or order within twenty days after receipt of the citation, proposed penalty, or order.
(b) The employer may petition the director for modification of the abatement requirements in a citation; provided the employer shall file the petition no later than the close of the next business day following the date on which abatement is required, or under exceptional circumstances and for good cause shown, at a later date. The petition for modification may be filed after the twenty-day period for contesting the citation has expired if the initial abatement period stated in the citation expires after the twenty-day period for filing a notice of contest has run.
(c) The director shall issue an order either affirming or modifying the abatement requirement. The director may issue an order modifying the abatement requirement upon a showing by the employer of a good faith effort to comply with the abatement requirements of a citation and that abatement has not been completed because of factors beyond the employer's reasonable control.
(d) Any employee or representative of employees may file with the director a written notice of contest of the initial abatement period stated in a citation or order alleging that the period of time fixed for abatement is unreasonable; provided the notice is filed within twenty days after the citation or order has been posted. Any employee or representative of employees may also file a written notice of contest of an order granting modification of the abatement period; provided the notice shall be filed within ten days of the posting of the order.
(e) Any employee or representative of employees may file a notice of contest of an order of the director denying a complaint of discrimination filed by an employee pursuant to section 396-8(e); provided that in each case the notice is filed within twenty days after receipt of the order by the employee.
(f) Any employee or representative of employees may file a notice of contest of an order granting an employer's application for a variance under section 396-4(a)(3); provided the notice is filed within twenty days after the posting of a final order or decision of the director.
(g) Upon receipt, the director shall advise the appeals board of any notice of contest.
(h) The appeals board shall afford an opportunity for a de novo hearing on any notice of contest except where rules require a prior formal hearing at the department level, the proceedings of which are required to be transcribed, in which case review before the appeals board shall be confined to the record only.
(i) The appeals board may affirm, modify, or vacate the citation, the abatement requirement therein, or the proposed penalty or order or continue the matter upon terms and conditions as may be deemed necessary, or remand the case to the director with instructions for further proceedings, or direct other relief as may be appropriate.
(j) The affected employees or representatives of affected employees shall be provided an opportunity to participate as parties to hearings under this section.
(k) The director shall submit annual reports to the legislature on the number of contests filed pursuant to this section, the disposition of each, and information indicating whether the issue involved an employee or employees of the department who failed to act within the scope of their office, employment, or authority under this chapter. [L 1972, c 57, pt of §1; am L 1974, c 152, §6; am L 1975, c 50, §5; am L 1976, c 95, §9; am L 1977, c 179, §4; gen ch 1985; am L 1992, c 94, §4]
As transmission of facsimile copies was not specifically allowed by any applicable statute or rule, including Hawaii administrative rule §12-51-19, faxing a notice of contest to the occupational safety and health office did not satisfy the filing requirement under subsection (a). 120 H. 135 (App.), 202 P.3d 596.
Where company mailed an original notice of contest to the director that was postmarked within the twenty-day deadline under Hawaii administrative rule §12-51-19, company timely filed its notice of contest under subsection (a) and the Hawaii labor relations board and the circuit court had jurisdiction to decide the merits of the company's challenge to the safety violation citation. 120 H. 135 (App.), 202 P.3d 596.
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