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The Occupational Safety and Health Administration is significantly increasing its enforcement response for repeat and willful workplace safety citations, and not only are six-figure fines becoming more common, but a series of recent million-dollar fines, as well as criminal prosecutions, underscore the seriousness with which OSHA under the Biden Administration is enforcing workplace safety rules.
Consequently, employers with prior OSHA citations need to be particularly vigilant to ensure compliance with their health and safety programs.
The conduct driving these large enforcement cases involves repeat or willful allegations. OSHA’s Field Operations Manual defines a repeat violation as occurring when an “employer has been cited previously for the same or a substantially similar condition or hazard and the citation has become a final order.” Willful violations may be cited by OSHA for either an intentional disregard for the requirements under the Occupational Safety and Health Act or plain indifference to employee safety and health.
Under current OSHA penalty authority, the agency may impose a fine of $145,027, per violation, for each separate repeat or willful citation. Congress significantly enhanced OSHA’s enforcement position by adjusting fines upward for inflation in 2015, the first increase since 1990. As a result, OSHA’s penalty authority increased by 78%. While the skyrocketing trajectory of 2022 penalties is due in part to the inflation adjustment, OSHA is aggressively pursuing enforcement for repeat and willful citations and frequently combining multi-count items per citation with separate maximum penalties for each item.
Construction fall protection cases appear to be where the agency is particularly focused on citing repeat and willful violations. According to OSHA, more than one-third of all construction-related fatalities were due to falls from heights in fiscal year 2021. In October 2022, OSHA announced a $1.1 million fine stemming from six willful, five repeat, and one serious citation for an Ohio construction contractor, Charm Builders Ltd., that had been cited 11 times previously for fall protection violations. Similarly, in late August 2022, a New York roofing and siding contractor, ALJ Home Improvement Inc., was fined over $1.3 million for OSHA fall protection violations involving a second fall-from-heights fatality in the past three years. Another construction case involving willful allegations stems from a floor collapse with a demolition contractor in Boston. OSHA fined JDC Demolition $1.2 million in late September 2022, with violations imposed for inadequate training and operating heavy equipment with unsafe loads on partially demolished floors.
General industry enforcement has also seen a series of recent million-dollar fines. Lockout/tagout violations involving willful and repeat conduct for New Jersey auto parts seller The Auto Store LLC led to the issuance of a $1.2 million fine following an employee hand injury in March 2022. And, of course, OSHA has had a well-publicized campaign directed at repeat violations at discount retail stores over the past five years in connection with blocked fire exits and fire extinguishers, along with unstable stacks of merchandise. These repeat issues resulted in a $1.2 million fine for Dollar Tree associated with two Family Dollar stores in Ohio as reflected in the agency’s August 2022 press release.
The Biden Administration’s effort to double down on repeat and willful conduct is also evidenced by OSHA’s update and re-issuance of its Severe Violator Enforcement Program. Although in existence since 2010, the agency updated the SVEP in September 2022, “to focus inspection resources on employers that have demonstrated indifference to their OSH Act obligations by committing willful, repeated, or failure-to-abate violations.” Employers with two or more willful or repeat violations are subject to the SVEP, and just one willful or repeat violation can subject a business to the SVEP if it involves a workplace fatality or catastrophe causing three or more hospitalizations. Once OSHA places a company in the SVEP, those employers are subject to further inspections and follow-up referrals.
In addition to the recent significant increase in civil monetary fines, the Biden Administration is also increasing criminal prosecutions as reflected by enhanced coordination and referrals between the Department of Labor and the Justice Department. Several recent criminal cases demonstrate the willingness of DOJ to charge employers with OSH Act crimes for workplace safety violations, notwithstanding the fact that federal prosecutors have historically not pursued criminal cases for a variety of reasons. The OSH Act’s penalty for a willful workplace fatality is a misdemeanor, and jail time has rarely been imposed because most employers are corporate entities, not individuals.
In August 2022, Alabama-based ABC Polymer Industries LLC, was charged with two OSH Act crimes for machine guarding after a worker was pulled into unguarded moving rollers as part of a manufacturing process involving plastic extrusion assembly lines. Also in August 2022, the U.S. Department of Justice issued a press release when Tampa Electric Co. was sentenced for an OSH Act crime involving the failure to brief employees of hazards of the job and related workplace precautions.
The Justice Department also continues to pursue cases under its Worker Endangerment Initiative, a program where federal prosecutors seek to couple Title 18 crimes, such as obstruction of justice, false statements, conspiracy, etc., to enhance criminal prosecution for workplace safety crimes. This is particularly evident in cases that may not involve a worker fatality when the OSH Act’s criminal provisions do not apply.
In May 2022, for example, DOJ announced the indictment of Didion Milling and six company officials following a dust explosion that killed multiple workers and injured 15 others. In addition to OSH Act criminal charges, federal prosecutors indicted individuals for falsifying entries in a cleaning logbook, as well as false and misleading testimony regarding knowledge about combustible dust hazards. OSHA’s press release stated that the employer had not installed a venting or dust collection system and failed to develop and implement a written program to effectively prevent and remove combustible dust.
The trend of the U.S. Department of Labor and Justice Department aggressively pursuing OSHA workplace health and safety compliance with both increased civil fines and criminal enforcement is likely to continue throughout the remainder of the Biden Administration. Businesses should carefully evaluate their training, operating procedures, safe work practices, and related programs in meeting their regulatory duties for a safe workplace.
Andrew Brought is a partner in the Kansas City, Missouri, office of Spencer Fane LLC. He counsels manufacturers, industrial clients and businesses with complex environmental and workplace safety/OSHA matters. He can be reached at firstname.lastname@example.org.