September 17, 2019

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September 16, 2019

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OSHA Fines Double for FY 2011 Asst. Secretary Claims They Are “Still Quite Low”

Average fines for workplace safety violations are on the rise, according to recently released statistics by the Occupational Safety and Health Administration (OSHA).

OSHA‘s FY 2011 enforcement statistics revealed that the average “Serious” citation penalty increased 103 percent from $1,069 per violation to $2,167 per violation for private employers.  During the prior administration, serious citation fines averaged $1,012.  The maximum fine that can be assessed for a serious citation is $7,000.   

Assistant Secretary of Labor for Occupational Safety and Health David Michaels recently told a gathering of OSHA’s Advisory Committee on Safety and Health that the average fine per violation “is still quite low” and that “[t]hey are still far lower than most regulatory agencies.”   

This increase in fines has come about without formal Congressional OSHA reform.  OSHA initiated this change in 2010 when it issued its new Administrative Penalty Bulletin that effectively increased the amount of fines issued against employers by changing the factors for employers to earn reductions in fines as well as the amount of minimum fines.  In 2010, OSHA also implemented the Severe Violator Enforcement Program (“SVEP”), which targets those employers who have had workplace fatalities and serious citations in high-risk industries (i.e., fall hazards in construction), as well as from selected National Emphasis Programs (i.e., amputations and excavation/trenching). Since that time, while the overall number of individual inspections fell slightly from FY 2010 to FY 2011 (i.e., 40,993 vs. 40,648), the dollar amounts of the individual citations have doubled in value.   

The SVEP also has specific follow-up inspection requirements for construction employers.  If a construction employer has a SVEP case, OSHA will conduct a follow-up inspection at the same site, or if that site is closed, they will inspect “at least” one other worksite to determine if there are other violations similar to the SVEP case.  Repeat and willful citations can result in fines up to $70,000 per violation.  If it is considered an “egregious” willful violation, OSHA has the discretion to issue fines on a violation-by-violation basis, which would multiple the fines by the number of employees exposed to the hazard (i.e., 6 employee exposed to asbestos = 6 x $70,000 = $420,000).   

Based on the comments of OSHA officials, we expect the trend of higher fines to continue.  Therefore, employers should remain vigilant in their efforts to comply with applicable OSHA standards and to consult with competent counsel to conduct audits regarding OSHA compliance both in practice as well as in written policies. 

© 2019 BARNES & THORNBURG LLP

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About this Author

Mark Kittaka, Barnes Thornburg Law Firm, Fort Wayne and Columbus, Labor and Employment Law Attorney
Partner

Mark S. Kittaka is a partner and the administrator of the Labor and Employment Law Department of Barnes & Thornburg LLP’s Fort Wayne, Indiana office. Mr. Kittaka’s practice covers all areas of labor and employment law including federal and state litigation concerning discriminatory practices and retaliation claims, including, but not limited to: Title VII race, sex, color, and religious discrimination claims; the Americans with Disabilities Act (ADA) (disability discrimination, reasonable accommodation, interactive process); Age Discrimination in Employment Act (ADEA); the Family and...

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