Labor & Employment Law Daily Wrap Up, SAFETY—7th Cir.: Employer challenge to appellate jurisdiction of enforcement petition based on wrong address on OSHA citation fails, (Sep 11, 2025)

By Ronald Miller, J.D.

Although Section 10(a) of the OSH Act calls for the Commission to send a citation by certified mail, an employer cannot avoid fines and sanctions merely by refusing to accept the citations the Commission sends by certified mail.

The Seventh Circuit granted the Secretary of Labor’s petition to enforce an order in a matter in which an employer did not provide fall protection for workers laboring high off the ground as required under OSHA. The employer had asserted that the Commission did not properly serve the citation and therefore it never became a final order over which the appeals court had jurisdiction. However, the appeals court observed that the address to which the citation was mailed was undeniably associated with the business owner and had been used in official government transactions on many occasions. Thus, the employer could not claim that notice to that address was not reasonably calculated to apprise him of the citation (Chavez-DeRemer v. Miller dba Miller Building Systems, LLC, No. 24-2313 (7th Cir. Sept. 10, 2025)).

OSHA violation. An OSHA inspector discovered that the employer had not provided fall protection for workers laboring high off the ground and issued a citation. The Occupational Safety and Health Act allowed the employer 15 working days from the date of receipt of the citation to contest it, before it became a final order of the Occupational Safety and Health Commission. Once it became a final order, the employer had 60 days to file a petition for review with the court of appeals, before the final order became ripe for an order for summary enforcement.

The Secretary of Labor petitioned the Seventh Circuit for enforcement of the final order on July 30, 2024. Summary enforcement of the final order by a court is a purely ministerial action and unreviewable by any court or agency. That means that one of the very few ways for the recipient of the citation to contest it after 15 working days has passed is to assert that the Commission did not properly serve the citation, and therefore it never became a final order over which the appeals court has jurisdiction. This is precisely what the employer claimed here and thus the only question left for the appeals court to answer was whether the Commission demonstrated that it adequately served the employer with the citation.

Service of citation. The Commission initially sent the citation to the employer by certified mail, as the Act instructs. According to the tracking information, someone at that address twice refused to accept the certified mail when delivery was attempted. Therefore, the postal service returned the mail, noting that it had been “refused” two times.

Thereafter, the Commission resent the citation to the same address using UPS ground service delivery with tracking services. UPS tracking showed that the citation was delivered and that it was received.

The employer claimed that the Commission failed to meet its burden to demonstrate adequate service—first, because the Commission did not send the citation to the proper address, and second, because it had no proof that the company owner received the document. The employer claimed that the citation was sent to the wrong address, but public records indicated that the company owned both parcels of land.

However, it was not until the employer’s response to the Secretary’s substantive brief in this case that it was alleged that the Commission had no proof that the company’s owner was associated with the address to which the citation was mailed.

Certified mail requirement. Although Section 10(a) of the Act calls for the Commission to send a citation by certified mail, an employer cannot avoid fines and sanctions merely by refusing to accept the citations the Commission sends by certified mail.

As the Supreme Court has defined it, “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”

For this reason, OSHA has long interpreted the Act to allow for alternative methods of service if the agency cannot effectuate service through certified mail. The relevant question is “whether the service is reasonably calculated to provide an employer with knowledge of the citation and notification of proposed penalty and an opportunity to determine whether to abate or contest.”

Refusal of delivery. In this case, if the government sent the notice to the proper address, the government’s attempt to serve the owner by certified mail was likely sufficient, as the government took steps reasonably calculated to give him notice of the citation, despite the fact that the mail was refused. A notice of refusal is different from a notice that service was “undeliverable.” In the case of a refusal, the Commission has reason to think the employer knew that it had been delivered but was purposefully tried to evade the consequences of that notice. The employer cannot avoid the consequences of violating the Commission’s safety regulations by refusing to accept the certified mail.

Once the certified mail was twice rejected, it was eminently reasonable for the Commission to try a different method, as it did by sending the notice via UPS.

Proper service. Nonetheless, the employer argued that because the Commission sent the notice to an address adjacent to his business address, it had not presented any evidence to support a finding that the certified mail or UPS ground package was sent to him, so that the Commission had not met the burden of proving that service was proper.

However, the appeals court observed that the address to which the citation was mailed was undeniably associated with the business owner and had been used in official government transactions on many occasions. Thus, the appeals court took judicial notice of the fact that the address on the citation was one associated with the employer and an address at which the Commission reasonably could be assured he would receive the citation.

The Commission explained that the employer had asserted for over a decade that the allegedly wrong address was his business address and thus service of the citation to that address was reasonably calculated to provide him notice.

Moreover, having claimed to the Commission, multiple courts, and other government bodies that his address was the allegedly wrong address, the employer could not claim here that notice to that address was not reasonably calculated to apprise him of the citation. The Commission verified the employer’s receipt of service at that address. In more than a decade of interacting with the Commission, the employer never before informed it that it erred by sending citations to the disputed address.

Accordingly, the appeals court granted the Secretary’s petition for summary enforcement and issue an enforcement decree.

The case is No. 24-2313.

Judge: Rovner, I.

Attorneys: Jessica Matthis, U.S. Department of Labor, for Lori Chavez-Deremer. Daniel R. Thies (Webber & Thies) for Elmer Miller dba Miller Building Systems LLC.

Companies: Miller Building Systems, LLC

Cases: Safety Procedure IllinoisNews IndianaNews WisconsinNews