Worker Safety Law Alert: What You Need to Know to Avoid Enforcement Actions

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Employers should remain on alert regarding the increasing trend towards more aggressive enforcement of worker safety standards demonstrated over the past year by the U.S. Occupational Safety and Health Administration (“OSHA”) and the U.S. Mine Safety and Health Administration (“MSHA”).

Increased Civil OSHA Penalties
Until last year, fines assessed by OSHA had not been adjusted for inflation since 1990. Pursuant to a November 2015 budget law, OSHA substantially increased the maximum penalties for violations of the Occupational Safety and Health Act (“OSH Act”), effective August 1, 2016. OSHA is required to further adjust the maximum penalties each January, in accordance with the Consumer Price Index. The most recent adjustments were made effective January 13, 2017. All increased penalties apply only to violations that occurred on or after November 2, 2015, the date on which the budget bill was signed into law.

The maximum penalties are as follows:

Type of OSH
Act Violation
Maximum Penalty
Prior to August 1, 2016
Maximum Penalty
Prior to August 1, 2017
Maximum Penalty
as of January 13, 2017
Other Than Serious $7,000 $12,471 $12,675
Serious $7,000 $12,471 $12,675
Repeat $70,000 $126,709 $126,749
Willful $70,000 $126,709 $126,749
Failure to Abate $7,000/day $12,471/day $12,675/day
 

OSHA has expressed its position that OSHA-approved state plans must impose maximum penalty amounts that are equal to or higher than those imposed by OSHA. While some states are pushing back against this requirement, it is likely that most state plan states will follow OSHA’s lead.

Increased Criminal Enforcement
In late 2015, the U.S. Department of Labor and the U.S. Department of Justice (“DOJ”) entered into a Memorandum of Understanding to work cooperatively to pursue criminal sanctions for violations of the OSH Act and the Mine Safety and Health Act (“MSH Act”). Under the agencies’ new plan, the DOJ’s Environment and Natural Resources Division works hand-in-hand with OSHA and MSHA to investigate and prosecute criminal conduct. The OSH Act and MSH Act provide for relatively minor criminal sanctions, which previously discouraged aggressive criminal enforcement actions in some instances. By working cooperatively with the DOJ, OSHA and MSHA have been able to creatively prosecute those who have violated certain OSHA/MSHA standards by using other applicable statutes, such as the Clean Air Act and the Toxic Substances Control Act, that carry harsher criminal penalties.

Recommendations for Avoiding Retaliation Claims
On January 13, 2017, OSHA published a new set of Recommended Practices for Anti-Retaliation Programs. Although OSHA emphasizes that the new Recommended Practices are only advisory guidelines and not mandatory (so they don’t create any new legal obligations for employers), companies should look at the recommendations and consider adopting them if appropriate. Building a plan consistent with OSHA’s recommendations could turn out to be a worthwhile exercise, in case a company ever needs to defend against a whistleblower retaliation claim. The Recommended Practices center on what OSHA calls “five key elements to an effective anti-retaliation program.” In the guidance document, the agency expands on each of those so called “key elements” to outline what could amount to a comprehensive plan for preventing unlawful retaliation against whistleblowers in the workplace. The five elements are: (1) enabling management leadership, commitment, and accountability; (2) creating a system for listening to and resolving employees’ safety and compliance concerns; (3) developing a system for receiving and responding to reports of retaliation; (4) providing anti retaliation training for employees and managers; and (5) ensuring program oversight. The Recommended Practices can be found here: https://www.osha.gov/Publications/OSHA3905.pdf.

Key Contributors

Karin D. Jones
Joan P. Snyder
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