Wisconsin Employers Beware:

OSHA Fines Are on the Rise for the First Time in Twenty-Five Years......

Retail store Dollar Tree has agreed to a hefty fine as well as continual monitoring of its stores across the US. A third-party monitor will conduct audits on 50 stores over the next two years. This settles a wide range of complaints arising from 13 different OSHA inspections. The agency is increasingly using this tactic of issuing repeat citations for the same violations at different company worksites. This could have a much bigger impact beginning August, when OSHA fines are set to rise about 80 percent.

The budget changes go into effect July 1, 2016 and the increased penalties will take effect by August 1, 2016 in all states regulated by Federal OSHA. The law does not automatically apply to states regulated by State Plans, but since State Plan programs must be at least as effective as Federal OSHA, State Plans are likely to increase civil penalties as well.

This change adds yet another powerful weapon to OSHA’s growing enforcement arsenal. OSHA has made liberal use of the General Duty Clause, weighted inspections, and new reporting requirements – all of which have resulted is OSHA inspections of industries and employers that it has never targeted before. Now more than ever, employers should be prepared for a potentially costly encounter with OSHA.

Employers are well-advised to:

Ensure that safety programs are comprehensive and up to date
Ensure that employees receive all necessary safety training, can demonstrate that they understood the training, and that all training is well-documented
Assess the workplace for hazards and address any identified hazards as quickly as possible
Talk with employees about their safety concerns and address any bona fide concerns as quickly as possible

Taking these steps will demonstrate the employer’s commitment to safety and help reduce the possibility of receiving what soon will be very costly OSHA citations.

OSHA has recently become a much more powerful agency than it ever has been before. In addition to a likely 80% increase in penalties, OSHA has entered into an agreement with the Department of Justice encouraging inspectors to look for workplace safety violations when investigating environmental incidents. In the past, there was very little criminal enforcement of workplace safety violations because OSHA violations are classified as misdemeanors – OSHA generally found that it was not a good use of resources to prosecute. Under the terms of the agreement with Department of Justice, workplace safety violations uncovered during environmental investigations will be treated as felony environmental violations for purposes of criminal prosecutions. Now more than ever, employers should be consulting with their OSHA advisors as soon as OSHA shows up. If an OSHA violation is found, the employer is not just facing huge penalties but a prison sentence as well.

“The budget changes go into effect July 1, 2016 and the increased penalties will take effect by August 1, 2016 in all states regulated by Federal OSHA. ”

Eliminate possibility alleged hazard could cause injury

Regardless of whether you believe you have been cited justifiably or wrongly, you need to take action and do your best to eliminate the possibility that the alleged hazard could cause an employee injury.

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Promptly investigate and determine the extent of the allegedly unsafe condition
Keep an open mind when considering possible abatement methods.
Consider hiring an expert in the field to conduct the investigation or audit and make abatement recommendations.
Implement a documented plan of abatement and periodic review of compliance.

By taking a proactive approach to your citation, you may find that OSHA will be more accommodating and that there are relatively easy ways to make even a safe workplace safer.

Another Important step to take is to look beyond the fines

Too often, employers balance only the proposed penalty (or an offer from OSHA to reduce the penalty) against the cost of challenging a citation, when deciding whether to contest. I recommend employers look beyond, or even ignore altogether, the proposed penalty, and consider how the citation may affect the company's bottom line in other, much more significant ways; e.g.:

expensive and anti-competitive abatement;
risk of Repeat violations at the same or sister facilities with 10x higher penalties;
disqualification from private or government contracts; affect personal injury or wrongful death civil lawsuits; and
increased insurance premiums or loss of coverage.

OSHA enforcement is up in every measurable metric, from number of inspections, to inspections resulting in citations, citations per inspection, average penalty per violation, average penalty per inspection, number of significant cases (cases with $100,000 penalties or more), and million dollar cases. Every measure you can think of — it is all up and it is all up somewhat significantly since 2009.