On April 22, 2010, Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety & Health, after finding that OSHA’s penalties were too low to have an “adequate deterrent effect,” issued a memo to OSHA Regional Administrators implementing changes to the penalty calculation system to be used in OSHA inspections and enforcement actions. The changes will be published in OSHA’s Field Operations Manual and will go into effect over the next several months.
The overall goal of these changes is to increase the dollar amount of all penalties, such that the average penalty for an alleged serious violation will increase to between $3,000-$4,000 from the current $1,000 penalty average. OSHA intends to obtain this increase by considering an employer’s history of violations over five years, not three years as is currently considered, both for repeat penalties and gravity calculations. In addition, any employee cited by OSHA in the last five years for a high gravity, serious, willful, repeat or failure-to-abate violation will have a 10% increase in the penalty up to the statutory maximum. Moreover, OSHA Area Directors may not offer more than a 30% penalty reduction at an informal conference without receiving approval from a Regional Administrator. Businesses with less than 251 employees can receive an additional 20% penalty reduction if they agree to retain an outside safety and health consultant. The memo outlines other methods by which OSHA intends to increase the alleged and recovered penalties within the current statutory maximums. Congress is in the midst of considering proposals to revamp OSHA, including increasing the current statutory penalty limits, which generally are $7,000 to $70,000.
Click here to read Dr. Michaels’ April 22, 2010 memo.