Ruling puts the brakes on OSHA's latest attempt to hike fines
OSHA's using a slew of enforcement tactics to boost fine amounts against employers. One popular agency strategy: issuing more repeat citations to increase total fine amounts. But a judge recently said OSHA was reaching too far to classify hazards as repeat violations. Here's what happened in that case.
Different facility, same hazards?
OSHA inspected Loretto-Oswego Residential Health Care's Oswego, NY facility. Inspectors doled out five violations for the company and said two of them were repeat violations. Why? Inspectors said they'd found similar hazards at other Loretto facilities during recent inspections. Those two repeat citations increased the overall fine by $55,000.
Loretto accepted the violations, but contested the repeat classifications before the Occupational Safety and Health Review Commission (OSHRC).
Who handled safety?
The commission threw out the repeat citations for several reasons. Although the separate locations were all under the same president and CEO, the court found employees at the Oswego site were responsible for safety there.
That facility had its own safety committee and conducted safety training for new workers, OSHRC said. Another note: No executives were located at the Oswego site. They were based at a different location. Because this site was operated independently, especially when it came to safety, OSHRC said the citations didn't qualify as repeat.
Fines upheld in another case
In another recent case involving repeat citations, OSHRC said OSHA could issue repeat citations under unique circumstances. In that case, S&W Construction filed for bankruptcy, then reopened as Sharon & Walter Construction, Inc., six weeks later. When the "new" company was fined for fall protection hazards, inspectors said they were repeat citations -S&W had been fined for similar hazards recently.
When the company fought the repeat violation, OSHRC used a three-point test to determine if the repeat fines should stick. They should, OSHRC said, since the companies were essentially the same and the same people were responsible for making decisions that impacted workers' safety.
Reprinted with permission from:
Safety Compliance Alert 2/7/11
Posted on Mon, February 14, 2011
by Kim Bowman