Employers face great obstacles in learning the details of the allegations that OSHA is making against them; to do so, they must pursue expensive and often unsuccessful discovery. A provision of the Occupational Safety and Health Act was supposed to prevent this problem by requiring that violations be described “with particularity.” The provision has, however, been construed into insignificance. The courts have held that OSHA’s allegations need provide only “fair notice” and thus that ambiguities in allegations may be cured during discovery or even at the hearing. No court has ever examined whether such holdings are consistent with the plain meaning of “particularity” or with case law construing a similar requirement for fraud allegations in Federal Rule of Civil Procedure 9(b). Under that case law, particularity in allegations must be provided in the complaint, not in discovery or at trial. This article urges that the wholly independent agency charged with adjudication of OSHA cases revitalize the particularity requirement by adopting an interpretive rule stating that henceforth it will be applied as written and that it will be construed as is Federal Rule 9(b).

Keep Reading Litigation by Ambush: The Struggle to Obtain Fair Notice of OSHA Allegations