Chapter 10 - Settlements

Except for egregious cases or those affecting other jurisdictions, the Chiefs may enter into Informal Settlement Agreements with employers prior to the employer filing a written notice of contest.

NOTE: After the employer has filed a written notice of contest, only the Chief of Enforcement may proceed toward a Formal Settlement Agreement with the concurrence and participation of the Assistant Attorney General.

The Chiefs may amend abatement dates, reclassify violations (e.g., willful to serious, serious to other-than-serious), and modify or withdraw a penalty, a citation, or a citation item, where evidence establishes during the informal conference that the changes are justified.

The Chiefs may actively negotiate the amount of proposed penalties, depending on the circumstances of the case and the particular improvements in employee safety and health that can be obtained.

The Assistant Chief of Enforcement shall obtain the Chief of Enforcement's approval before approving an informal settlement that reduces the final penalty amount by more than 30% of the total initial proposed penalties. This includes reductions through deletion or reclassification.

Employers shall be informed that they are required by 29 CFR 1903.19, as adopted in 8 AAC 61.142, to post copies of all amendments or changes to citations resulting from informal conferences. Employee representatives must also be provided with copies of any agreements.

Pre-contest settlement discussions will generally occur during or immediately following the informal conference and prior to the expiration of the 15 working-day contest period.

If a settlement is reached during the informal conference, an Informal Settlement Agreement (ISA) shall be prepared, and the employer will be asked to sign it. It will be effective upon signature of both the employer and either of the Chiefs (who shall sign last), provided the contest period has not expired. Both parties will date the documents on the day of actual signature.

If the employer is not present to sign the ISA, the Chiefs shall send the agreement to the employer for signature. After signing, the employer must return the agreement to the Chief's by email, hand delivery, scan, or via facsimile within the 15-day contest period.

In every case, the Chiefs shall give employers notice in writing that the citation will become final and unreviewable at the end of the contest period, unless the employer signs the proposed agreement or files a written notice of contest.

If an employer wishes to make any changes to the text of the agreement, the Chiefs must agree to and authorize the proposed changes prior to the expiration of the contest period.

• If the employer's proposed changes are acceptable to the Chief of Enforcement, the exact language to be included in the agreement shall be mutually agreed upon. Employers shall be instructed to incorporate the agreed-upon language into the agreement, sign it, and return it to AKOSH by email, hand delivery, scan, or via facsimile.$3
• Annotations incorporating the exact language of any changes authorized shall be made to the retained copy of the agreement and signed and dated by the Chief of Enforcement.$3
• Upon receipt of the ISA signed by the employer, the Chiefs will ensure, prior to his/her signature, that any modifications to the agreement are consistent with the notations made in the case file.$3
• In these cases, the citation record will then be updated in OIS in accordance with current procedures.$3
• If an employer's changes substantially alter the original terms, the agreement signed by the employer will be treated as a notice of contest and handled accordingly. The employer will be informed of this as soon as possible.$3
• A reasonable time will be allowed for the employer to return the agreement.$3
• If an agreement is not received within the 15-day contest period, the Chief of Enforcement will presume the employer did not sign the agreement, and the citation will be treated as a final order.$3
• The employer will be required to certify that the informal settlement agreement was signed prior to the expiration of the contest period.$3
• If settlement efforts are unsuccessful and the employer contests the citation(s), the Chief of Enforcement will document the terms of the final settlement offer in the case file.$3
• In the case of a public sector employer who requests an informal conference prior to contest, the Chiefs shall discuss opportunities to consider alternative payments to satisfy proposed penalty assessments in connection with alleged violations in accordance with the requirements outlined in the June 30, 2022, AKOSH Enforcement Policy Memorandum for public sector employers.$3
• Provided the established criteria for the alternate penalty payment methodology are met and documented, the payment shall be deemed to satisfy the adjusted proposed penalty.$3
• The penalty investment payments must be a documented investment in the equivalent or greater value of the initial adjusted proposed penalty after any customary and appropriate reductions for cooperation, timely hazard abatement, and other factors.$3
• The penalty investment must address workplace safety and health hazards and improvements beyond the hazards at issue in the citation(s).$3
• The employer must agree to schedule and complete a comprehensive consultation visit at the site where the inspection was conducted or a site agreed to by the Chief of Enforcement to have similar or greater potential workplace safety and health hazardous conditions.$3