A seven-fold increase in the maximum limits for OSHA civil monetary penalties was stipulated in the Budget Reconciliation Act passed by the 101st Congress.


PREMIUM LEGAL RESOURCES LEGAL FORMS ASK A LAWYER

U.S. Department of Labor
Program Highlights
Fact Sheet No. OSHA 92-36

A seven-fold increase in the maximum limits for OSHA civil monetary penalties was stipulated in the Budget Reconciliation Act passed by the 101st Congress.

The maximum allowable penalty is now $70,000 for each willful or repeated violation; and $7,000 for each serious or other-than-serious violation as well as $7,000 for each day beyond a stated abatement date for failure to correct a violation.

The amounts are ceilings -- not floors. However, in order to ensure that the most flagrant violators are in fact fined at an effective level, a minimum penalty of $5,000 for a willful violation of the OSH Act was adopted.

The new penalty policy will be applicable to all citations issued as a result of inspections initiated after March 1, 1991, for violations occurring after Nov. 5, 1990 -- the effective date of the Budget Reconciliation Act.

The new policy also applies to those states with OSHA-approved state occupational safety and health programs, under the congressional direction that these State plans must be "at least as effective" as the national plan. The participating states are being given a reasonable period to implement the new penalty structure which takes into account the states' legislative calendars.

The basic penalty process will not change -- it still follows the criteria set forth in the Occupational Safety and Health Act, which is to determine penalties based on the gravity of the violation and the size, good faith and history of the employer. Gravity determines the base amount; the other factors determine appropriate reductions.

As in the past, all penalty amounts are proposed penalties issued with the citation. The employer may contest the penalty amount as well as the citation within the statutory 15-day contest period. Thereafter, the penalty may be adjudicated by the independent Occupational Safety and Health Review Commission, or OSHA may negotiate with the employer to settle for a reduced penalty amount if this will lead to speedy abatement of the hazard.

Here is how the new system for proposing penalties will operate.

ADJUSTMENT FACTORS:

The size adjustment factor is as follows: For an employer with only one to 25 workers, the penalty will be reduced 60 percent: 26 to 100 workers, the reduction will be 40 percent; 101 to 250 workers, a 20 percent reduction; and more than 250 workers, there will be no reduction in the penalty.

There may be up to an additional 25 percent reduction for evidence that the employer is making a good faith effort to provide good workplace safety and health, and an additional 10 percent reduction if the employer has not been cited by OSHA for any serious, willful or repeat violations in the past three years.

In order to qualify for the full 25 percent "good faith" reduction, an employer must have a written and implemented safety and health program such as given in OSHA's voluntary "Safety and Health Management Guidelines" (Federal Register, Vol. 54, No. 16, Jan 26, 1989, pp. 3904-3916) and that includes programs required under the OSHA standards, such as Hazard Communication, Lockout/Tagout or safety and health programs for construction required in CFR 29 1926.20.

SERIOUS VIOLATIONS:

The typical range of proposed penalties for serious violations, before adjustment factors are applied, will be $1,500 to $5,000, although the Regional Administrator may propose up to $7,000 for a serious violation when warranted.

A serious violation is defined as one in which there is substantial probability that death or serious physical harm could result, and the employer knew or should have known of the hazard.

Serious violations will be categorized in terms of severity -- high, medium or low -- and the probability of an injury or illness occurring -- greater or lesser.

Base penalties for serious violations will be assessed as follows:

Severity Probability Penalty
High Greater $5,000
Medium Greater $3,500
Low Greater $2,500
High Lesser $2,500
Medium Lesser $2,000
Low Lesser $1,500

Penalties for serious violations that are classified as high in both severity and greater in probability will only be adjusted for size and history.

OTHER-THAN-SERIOUS VIOLATIONS:

If an employer is cited for an other-than-serious violation which has a low probability of resulting in an injury or illness, there will be no proposed penalty. However, the violation must still be corrected. If the other-than-serious violation has a greater probability of resulting in an injury or illness, then a base penalty of $1,000 will be used, to which appropriate adjustment factors will be applied.

The OSHA Regional Administrator may use a base penalty of up to $7,000 if circumstances warrant.

REGULATORY VIOLATIONS:

Regulatory violations involve violations of posting, injury and illness reporting and recordkeeping requirements, and not telling employees about advance notice of an inspection. OSHA will be applying adjustments only for the size and history of the establishments.

Here are the base penalties, before adjustments, to be proposed for posting requirement violations: OSHA notice, $1,000; annual summary, $1,000; and failure to post citations, $3,000.

Base reporting and recordkeeping penalties are as follows: Failure to maintain OSHA 200 and OSHA 101 forms, $1,000; failure to report a fatality or catastrophe within 48 hours, $5,000 (with a provision that the OSHA Regional Administrator could adjust that up to $7,000, in exceptional circumstances); denying access to records, $1,000; and not telling employees about advance notice of an inspection, $2,000.

WILLFUL VIOLATIONS:

In the case of willful serious violations, the initial proposed penalty has to be between $5,000 and $70,000. OSHA calculates the penalty for the underlying serious violation, adjusts it for size and history and multiplies it by 7. The multiplier of 7 can be adjusted upward or down at the OSHA Regional Administrator's discretion, if circumstances warrant. The minimum willful serious penalty is $5,000.

Willful violations are those committed with an intentional disregard of, or plain indifference to, the requirements of the OSH Act and regulations.

REPEAT VIOLATIONS:

A repeat violation is a violation of any standard, regulation, rule or order where, upon reinspection, a substantially similar violation is found.

Repeat violations will only be adjusted for size, and the adjusted penalties will then be multiplied by 2, 5, or 10. The multiplier for small employers -- 250 employees or fewer -- is 2 for the first instance of a repeat violation, and 5 for the second repeat. However, the OSHA Regional Administrator has the authority to use a multiplication factor of up to 10 on a case involving a repeat violation by a small employer to achieve the necessary deterrent effect.

The multiplier for large employers -- 250 or more employees -- is 5 for the first instance of repeat violation, and 10 for the second repeat.

If the initial violation was other-than-serious, without a penalty being assessed, then the penalty will be $200 for the first repetition of that violation, $500 for the second repeat, and $1,000 for the third repeat.

FAILURE TO ABATE:

Failure to correct a prior violation within the prescribed abatement period could result in a penalty for each day the violation continues beyond the abatement date.

In these failure to abate cases the daily penalty will be equal to the amount of the initial penalty (up to $7,000) with an adjustment for size only.

This failure to abate penalty may be assessed for a maximum of 30 days by the OSHA Area office. In cases of partial abatement of the violation, the OSHA Regional Administrator has authority to reduce the penalty by 25 percent to 75 percent.

If the failure to abate is more than 30 days, it may be referred to the OSHA national office in Washington where a determination may be made to assess a daily penalty beyond the initial 30 days.

This is one of a series of fact sheets highlighting U.S. Department of Labor programs. It is intended as a general description only and does not carry the force of legal opinion. This information will be made available to sensory impaired individuals upon request. Voice phone:(202)523-8151.

-----
Brought to you by - The 'Lectric Law Library
The Net's Finest Legal Resource for Legal Pros & Laypeople Alike.
http://www.lectlaw.com

Google+


Additional Info

Follow Us!



Our Most Popular Article:
Power of Attorney
Our Most Popular Page:
Free Legal Forms
Our Newest Article: Personal Finance Guide


privacy policy