The time to prepare your business for an inspection by the Occupational Safety and Health Administration (OSHA) is now. Every type of business shares in the need to deal with government regulations. Despite this, many businesses may be entirely unaware they could be subject to surprise inspections by OSHA or that such inspections could result in massive penalties. It is not uncommon for OSHA preparedness to fall on the back-burner. Comments such as, “They won’t come here” or “We haven’t been inspected before” are unfortunately the norm. This attitude of indifference belies the reality of the affects OSHA inspections have American businesses.
OSHA levied over $149 Million dollars in fines[1] between October of 2014 and September of 2015 alone. Just last week, OSHA cited a bakery $140,000 in fines. In May, OSHA reports that they cited a shooting range over $130,000 in fines. To make matters worse, OSHA will soon be dramatically increasing these civil penalties.
Beginning in 1990, OSHA had been prevented from increasing its civil penalties. However, on November 2, 2015 President Obama signed the Bipartisan Budget Act of 2015. This Act provided for normal budget issues of the Federal Government, but also included a provision that allows OSHA to enact a one time “Catch Up Adjustment.” This will increase OSHA penalties by performing a comparison of the Consumer Price Index from October of 2015, to what it was in October of 1990. As we can all attest, the average price of goods and services has risen substantially in the past 25 years and subsequently so too will OSHA’s penalty amounts.
The increased penalty amounts go into effect on August 1, 2016, and it currently looks as though the adjustment will allow OSHA to increase these penalties by 80%. This means that the existing, $7,000 cap on “Serious” violations will increase to $12,600, per violation. The current limit of $70,000 per “Willful” or “Repeat” violations will increase to $126,000, per violation. The provision that allows OSHA to increase these penalties also establishes regular increases. Each year, OSHA will adjust its penalty schedule based upon the percentage increase in the Consumer Price Index.
On the coat-tails of these extraordinary increases, OSHA has promulgated its new Electronic Recordkeeping rule. This new rule will go into effect January 1, 2017 and implementation of the rule will be rolled out during the following two years. While the primary purpose of the rule is to make a change whereby employers switch from submitting certain documents via paper to submitting them electronically, the new rule also contains many new provisions governing how an employer must act towards employees who have or may report safety incidents. In the past year, OSHA has dramatically increased their focus on workplace retaliation. That is, employers who seek to retaliate against an employee for reporting information to OSHA. The new provisions in the rule will “nudge”, to use OSHA’s term of choice, employers to be less restrictive and to not engage in practices which OSHA believes discourage employees from reporting. Importantly, the new electronic recordkeeping requirements are going to allow OSHA to start publishing significantly more information about violators.
It may come as a surprise, but currently every employer who is visited by OSHA has a summary of that visit published on the OSHA website. This information can be accessed by everyone from competitors, to agents reviewing bids for government contracts, and even your next door neighbor. Even more surprising may be the fact that if violations are found, then those violations and OSHA’s proposed fines are also made public. Under the new rule, OSHA has stated that they intend to use the information to supplement their existing database of violators and provide public access to even more information regarding a company’s violations and workplace safety practices. This means in addition to charging more than ever before, OSHA is now getting into the business of publicly shaming employers who fail to meet their standards.
Employers that are concerned about their OSHA compliance should review their existing safety policies and consult with an Occupational Health & Safety Expert. OSHA provides complimentary consultation services to concerned employers. However, the Pennsylvania Superior Court recently ruled that these consultants are NOT bound by confidentiality. That case, Price v. Simakas Co., established consultants can be required to testify against an employer at any OSHA proceedings which may occur. Law firms, in contrast, maintain Attorney-Client Privilege and thereby provide an additional layer of security and protection for their clients. Prince Law Office, P.C. offers initial OSHA assessments for a flat fee of $300.
This assessment puts one of our personnel at your facility[2], anywhere in the Commonwealth. Once on site, our personnel will review your existing safety plans, perform a complete walk through of your facility, and go through the best options for your business to increase workplace safety and drastically reduce your exposure to ever increasing OSHA penalties.
If you are interested in setting up an Assessment please contact us today at info@princelaw.com or 888-313-0416.
[1] https://www.osha.gov/pls/imis/industryprofile.stand?p_esize=&p_stand=ALL&p_state=FEFederal&p_type=2
[2] Flat Fee applies only to facilities of 30,000 sqft. or less with a maximum on site time of 3 hours.
Prince Law Offices Blog 
Perhaps I’m in the minority here but raising the fines feels like the right thing to do at this point. I’d actually be in favor of them going up yearly (or down) depending on inflation.
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