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The U.S. Occupational Safety and Health Administration’s increased penalty structure is contributing to a backlog of contested citations at the Occupational Safety and Health Review Commission.
The review commission is closely monitoring the effect of the 2016 statutory penalty increase, in which the previous maximum fine of $70,000 per violation for willful and repeat violations rose to $124,709.
Recent indications are that the employer contest rate — the percentage of OSHA investigative findings being challenged by the regulated community — has significantly increased in recent months, according to the review commission’s draft strategic plan.
Employers are more willing to contest even citations with relatively small penalties for a variety of reasons, including the potential reputational risk and the possibility of being hit with a repeat citation if a similar violation is found during a subsequent inspection, leading to higher penalties, legal experts say.
“It sometimes seems strange that employers are probably paying much more in legal fees than they would if they pay the citation, but I think a big part of what drives that is OSHA’s policies for repeat citations,” said Ilana Morady, a San Francisco-based associate at Seyfarth Shaw L.L.P. “Employers are becoming a little more savvy that way. If you think that there’s a defense to the citation, then you should try to get rid of it because that will reduce your potential liability in the future.”
Even on a relatively small citation, the cost of abatement could be a lot higher than the penalty, or the required abatement could disrupt the way employers do business, said Punam Kaji, a Dallas-based attorney in the labor and employment and OSHA practices of Haynes and Boone L.L.P.
“At the end of the day, some employers feel that OSHA got it wrong. And even if it’s a small fine and it’s just a matter of paying that check, they’d rather get that clarified and properly stated in the citation narrative or get it withdrawn,” she said.
The Occupational Safety and Health Review Commission may be ready to tackle some of the toughest workplace safety issues now that it has three commissioners after years of being short-staffed.