OSHA appeals process can stall worker safety for years

The chickens do not slow down. 

Workers hang featherless bodies upside down onto hooks, cut the limbs and wings off the birds, and automated machines separate viscera from meat, slicing through 144 chickens a minute.

Duvan Tomas Perez’s job was to sanitize the machines that remove chicken’s bones and organs at the Mar-Jac Poultry plant in Hattiesburg, Mississippi, where over 100 million birds are slaughtered each year.

He shouldn’t have been there. The machine shouldn’t have turned on.

Perez, a 16-year-old Guatemalan immigrant who was too young to be legally working in a meatpacking facility, was sanitizing a vertical conveyor belt when he was pulled into the machine’s moving gears and killed on July 14, 2023.

The Occupational Safety and Health Administration investigated his death and found the company did not have proper practices to stop machines from unintentionally starting while being cleaned.

OSHA called the teenager’s death “preventable” and ordered Mar-Jac Poultry, a supplier of chicken products to wholesalers and popular fast-food chains across the country, including Chick-fil-A, to pay $212,646 in fines.

OSHA had previously fined Mar-Jac for a similar incident in 2021, but the company had still not paid that fine when Perez was killed.

That’s because the company’s appeal of the 2021 fine was still being reviewed by the Occupational Safety and Health Review Commission, a separate agency that reviews workplace safety violation disputes between OSHA and companies.

Over the past decade, procedural slowdowns and commissioner vacancies have caused safety reviews to pile up and the appeals process to take longer, during which time companies are not legally required to make safety changes and can continue operations as normal and avoid paying fines.

Since 2015, the time it takes judges working with the little-known Occupational Safety and Health Review Commission to investigate appeals has increased from less than 18 months to over two years, according to Investigate Midwest’s analysis of hundreds of appeals.

The longer review period came even as the number of cases reviewed has decreased by more than half.

The Occupational Safety and Health Review Commission is an independent entity and is not a part of OSHA or its umbrella agency, the Department of Labor.

Businesses, including meatpacking plants, are not obligated to fix safety problems pointed out by OSHA while the commission is reviewing appeals.

“Employers see it as something that you drag it out for as long as you can, and while you’re dragging it out, nothing is going to change inside the workplace,” said Elizabeth Walle, spokesperson for the Food Chain Workers Alliance, a worker safety advocacy group. “You’re not going to make a change in the workplace until you absolutely are forced to.”

Walle said the delays in commission reviews also send the message to workers that reporting workplace hazards through official channels is ineffective.

A privately held company based in Gainesville, Georgia, Mar-Jac Poultry does not report its annual revenue. The company owns slaughter plants in Mississippi, Georgia, and Alabama.

Mar-Jac Poultry’s 2021 appeal was one of the lengthiest cases reviewed by the commission compared to other meat and agriculture companies contesting OSHA fines.

Part of the delay in the appeal process is that the three-person commission, which operates a $16 million annual budget, has been without a quorum for over a year. The commission did not review a single case in fiscal year 2024 because there was only one active commissioner.

The future of the commission is in the Trump administration’s hands as its sole member approaches the end of her term. Former President Joe Biden’s nominees never saw a Senate confirmation hearing.

Trump has gutted similar worker protection and labor commissions in recent weeks, with both the National Labor Relations Board and the Equal Employment Opportunity Commission now unable to hold a quorum.

“At this point, it is unclear if the current administration takes the route of letting this independent agency wither on the vine by failing to nominate commissioners,” Heather MacDougall, a former chair of the commission, wrote in an email.

MacDougall also said the increasing complexity of cases has resulted in a higher percentage of cases being petitioned for review.

Roughly 6 percent of all OSHA inspections conducted in a year result in a company contesting a fine, according to Investigate Midwest’s analysis.

Last year, commission judges started the year with roughly 1,400 cases in backlog, a 20% increase from 2014.

“The Review Commission’s current lack of quorum is the primary reason for a backlog — an issue that has plagued the Commission not only over the past 24 months but throughout a substantial amount of time since the agency was established,” MacDougall said.

President Barack Obama first appointed MacDougall in 2014, and Trump appointed her chair of the commission in 2017. She left the agency in 2019 to become Amazon’s vice president of worldwide employee health and safety. She has since returned to private practice as a lawyer and advisor.

“Too much of the time, the agency is not living up to its mission of fair and expeditious resolution of contested cases and, thus, not effectively serving its stakeholders,” she said.

While investigating one death, another happens

On May 31, 2021, Bobby Butler, 48, died at the Mar-Jac Poultry processing plant after his arm was pulled into a moving machine made for eviscerating chickens.

The Occupational Safety and Health Administration investigated the death and found that employees and management routinely reached into rapidly moving equipment to fix jams, a practice that led to Butler’s death, according to records obtained from the agency. The OSHA investigation noted the line was missing safety doors and hazard notices.

The agency fined Mar-Jac Poultry $27,306. The company contested the fine.

Companies fined by OSHA have the legal right to an appeal, a process enshrined in the Occupational Safety and Health Act of 1970 and acted out by the separate review commission.

Not every contested case will reach the commission or receive a hearing. Cases are often settled outside of the review process or dismissed for various reasons.

Mar-Jac Poultry’s appeal launched a review by one of the commission’s 12 judges, who make a recommendation to either change or uphold the initial fine and safety orders. If the company contests the judge’s decision, the three commissioners make a final ruling.

During the commission’s review process, Mar-Jac Poultry was not required to make changes to its safety procedures or pay any fines.

In July 2023, while Mar-Jac’s appeal had been under investigation for 19 months, Perez was killed while cleaning machinery at the company’s Hattiesburg plant.

Like the 2021 death, OSHA cited a lack of safety standards and procedures when machinery was still in motion or energized. Investigators found that a lockout device was not used to prevent machinery from starting on its own while being sanitized.

The appeal related to Butler’s death was closed in October of 2023. The commission ordered Mar-Jac Poultry to pay nearly $27,000.

Three months later, OSHA claimed in media reports that the company should have enforced stricter safety standards after the initial 2021 death.

“Mar-Jac Poultry is aware of how dangerous the machinery they use can be when safety standards are not in place to prevent serious injury and death,” said OSHA Regional Administrator Kurt Petermeyer in a 2024 press release announcing fines after the death of Perez. “The company’s inaction has directly led to this terrible tragedy, which has left so many to mourn this child’s preventable death.”

But according to OSHA’s review commission and an OSHA spokesperson, the company is not under a legal obligation to make changes while a case is still under review.

“When an employer contests an alleged violation, the abatement and proposed penalty for that violation is suspended until the commission issues a final decision,” Katherine Tracy, chief counsel to the commission’s chair, wrote in an email to Investigate Midwest.

Soon after the agency announced new fines for Perez’s death, Mar-Jac filed an appeal.

As of March 2025, there are 30 appeal cases still pending review by the commissioners, the oldest are from 2021.

In fiscal year 2024, the commission did not issue any decisions, due to a lack of quorum.

Cynthia Attwood, the current chair of the commission, took office in 2010 and has been reappointed by presidents Obama, Trump and Biden. Her term expires next month.

She is the only active commissioner of the agency, with an annual salary of nearly $170,000.

One position has been vacant since 2021 and the other since April 2023.

Amanda Wood Laihow, a former commissioner, and Mark Eskenazi, a former National Labor Relations Board attorney, were nominated by Biden for the two open positions and had been awaiting Senate confirmation since October 2023 and August 2024, respectively.

Biden’s appointments were rescinded from the confirmation calendar at the end of the 2024 Senate session. When Atwood’s term expires, the Trump administration will be responsible for recommending new commission members and a chair.

The U.S. Senate Committee on Health, Education, Labor and Pensions reviews presidential commission recommendations, passing them on for a vote of the full Senate. The committee did not respond to a request for comment.

Tracy declined to answer questions about how the lack of quorum at the commission is impacting decision-making at the judge review level.

The commission stated in its 2024 accountability report “over the past five years the commission has operated with fewer than three commissioners over 75% of the time and operated with only one commissioner 40% of the time.”

Family sues Chick-fil-A, poultry plant, staffing agency, and others

Last year, the family of Perez sued the poultry company and the staffing agency that hired the teenager. The lawsuit is still pending. Lawyers for the Perez family declined to comment.

The family has added other defendants to the claim, including the manufacturer of the machinery and Chick-fil-A, the popular chicken sandwich fast-food chain headquartered in Atlanta, Georgia.

Chick-fil-A, which has over 3,000 restaurants worldwide, buys chicken from Mar-Jac, according to legal filings.

Mar-Jac Poultry and Chick-fil-A did not respond to multiple requests for comment.

“Duvan’s tragic and preventable death was the result of failures at multiple levels, “ Mark Chavez, an attorney representing Duvan Perez’s father in the wrongful death lawsuit, said in a statement.

“While workplace safety violations have rightfully been exposed, our focus is on holding all responsible parties accountable, including those who designed and manufactured the dangerous machinery that contributed to this terrible loss.”

Both Mar-Jac Poultry, whose executive leadership includes members of the U.S. Poultry and Egg Association and the Georgia Department of Economic Development board, and the staffing agency that hired Perez deny any wrongdoing. Both have also said that other deaths and worker injuries at the Hattiesburg plant are not relevant to the case, according to legal filings.

The companies admit Perez worked at the facility and died while working on the machine, but deny he was cleaning a still-energized machine.

“The Plaintiff’s decedent’s negligence was the sole and/or proximate contributing cause of Plaintiff’s injuries,” Mar-Jac attorneys wrote in a March 2024 court filing.

The company’s attorneys also allege that the Perez family would not be entitled to any damages due to the Immigration Reform Control Act, a 1986 law that prohibits employers from hiring undocumented workers and has been used in past lawsuits to prevent legal claims to undocumented workers.

An estimated 1.7 million undocumented people work in the nation’s food and agriculture sectors, with nearly 83,000 working in meatpacking and processing facilities, according to a 2021 report from the Center for American Progress.

The Department of Labor is also actively investigating the company’s hiring of underage workers.

While Mar-Jac Poultry is not required to abate a contested citation item until the Occupational Safety and Health Review Commission issues a final order, “OSHA encourages employers to complete corrective action earlier to protect its employees,” a Department of Labor spokesperson told Investigate Midwest.

In August 2024, Mar-Jac Poultry settled its appeal of the OSHA fines from the Perez death. The company is now required to pay nearly $165,000, roughly $50,000 less than the original fine. A commission spokesperson confirmed that the contestment has been settled and closed.

This story is a product of the Mississippi River Basin Ag & Water Desk, an independent reporting network based at the University of Missouri in partnership with Report for America, with major funding from the Walton Family Foundation.