Recognize OSHA’s Emerging Strategy To Avoid Big Penalties

by, Robert Box

 

OSHA has changed some of its rules in order to leverage an existing enforcement tool to generate huge penalties against employers.  Knowing what OSHA’s strategy is and how they intend to use enforcement actions can help employers develop their own strategies to keep employees safe and OSHA at bay.

 

Compliance Safety & Health Officers (CSHOs) are under incredible pressure under the current administration to pursue three actions on employers:

 

With regard to the third item, OSHA is utilizing Repeat Violations as the vehicle to drive penalties sky high.

Why Repeat Violations?

A Repeat penalty can be up to ten times greater than a Serious or Other Than Serious penalty. Serious and Other Than Serious penalties have a maximum penalty per violation of $7,000, while Willful and Repeat Violations have a maximum penalty per violation of $70,000.

Another significant aspect of a Repeat Violation is the name itself: “Repeat offender.” It smacks of “A chronically criminal company,” whether it is true or not. When news articles are published about significant OSHA enforcement actions, you see employers characterized in a more harsh way when Repeat Violations are involved. For example, OSHA typically says, “…This employer has committed this violation in the past and continues to disregard and violate the law, which repeatedly puts their employees’ lives at risk…”

These inflammatory comments are made before the allegations are established as fact, well before the employer can defend him or herself. Even if the allegations are proven to be completely false, the shaming news release has already been launched, and the citations and news release remain on OSHA’s website forever.

See our short article: “OSHA Shame Campaign Rolls On –Deserved or Not.”

The two factors of (1) a much greater penalty, and (2) saddling the employer with the label of “Repeat Violator,” before the company can defend itself and even possibly disprove the allegations, are the reasons why OSHA is aggressively pursuing more and more Repeat Violations.

How is OSHA leveraging Repeat Violations?

We have seen under the current administration, three significant changes in OSHA policy in enforcement strategy that are driving more and more Repeat Violations.

 

Looking at the data, we can infer OSHA’s strategy of focusing on Repeat Violations because the number of Serious and Willful violations generally stay within the same range year after year, but Repeat Violations totals have been continuously on the rise since 2002, nearly doubling since that time through 2014.

 

In 2011, there was the greatest surge in increased Repeat Violations. In that same year, Significant Cases (Penalties of $100k or more) surged to over 200 cases from the usual 100 – 120 cases per year. It used to be difficult for OSHA to scrape together enough Serious and Other Than Serious Violations to get penalties over $100k, but now the agency can throw in just one Repeat Violation of up to $70k, and they are almost all the way there.

 

If OSHA strings together a number of Repeat Violations, they can get the penalties over $1 million, which is considered an Egregious Case. From 2005 – 2009, OSHA had 16 Egregious Cases. From 2010 – 2014, they managed to have 52 Egregious Cases thanks to OSHA’s new Repeat Violation strategy.

 

Take heed –beware OSHA’s Repeat Violation.