Despite the Trump Administration’s pronounced goal of reducing administrative burdens on businesses, OSHA inspections and enforcement actions increased during 2017 and 2018. The average penalty amount assessed also increased. For example, the average penalty for serious violations increased from $3,645 in 2017 to $5,016 in 2018. The trend toward more enforcement and higher penalties is likely to continue in 2019.
OSHA penalties are calculated based on the category in which OSHA places the violation. According to a new final rule, the maximum penalty in 2019 for “Serious”, “Other-Than-Serious”, “Posting” and “Failure to Abate” violations will increase to $13,260 per violation from $12,934 in 2018. The maximum penalty for “Willful or Repeated” violations will increase to $132,598 in 2019 per violation from $129,336 in 2018. The Department of Labor has pre-published the increased amounts but they will not become effective until the date they are printed in the Federal Register; however, the Federal Register will not be published until the government re-opens for business. OSHA calculates penalties based on the specific circumstances of each case, looking particularly at (1) the gravity of the violation, (2) the size of the employer’s business (including all facilities regardless of location), (3) good faith, and (4) employer’s history of cited violations (including all facilities regardless of location).
Obviously, a company would prefer for an alleged violation to avoid being classified as “Willful or Repeated” so as to avoid a higher penalty, however a recent court case may make that more difficult. OSHA policy had been to limit the look back period of time within which a violation would be determined as repeated to three years. In Triumph Construction Corporation v. Secretary of Labor, 885 F.3d 95 (2d Cir., 2018), the United States Court of Appeals for the Second Circuit held that OSHA could consider violations occurring during the prior five years to classify a current violation as repeated and bump it up into the highest penalty category.
In fact, the court stated: “there are no statutory limitations on the length of time that a prior citation was issued as a basis for a repeated violation,” so OSHA could potentially look back indefinitely at similar violations by an employer to increase the amount of penalty assessed. Although employers are often tempted to settle OSHA allegations when the penalty offered is relatively smaller than the legal fees would be to fight an allegation, employers should also consider the effect of admitting to a violation on possible future enforcement actions and potentially much higher fines.
UPCOMING COMPLIANCE REMINDER: Employers are required to file Form 300A, the summary of all job-related injuries and illnesses, for 2018 electronically on February 1, 2019. The summary must also be posted in a common area from February 1 through April 30, 2019.
