Businesses beware of OSHA's new tactic

Unable to get Congress to pass its onerous Protecting American Workers Act (PAWA) (which I opined about in this publication in Nov. 8, 2010), that would have significantly raised the penalties that OSHA could levy on employers, the Obama administration is using other, more subtle, anti-business measures to accomplish their goals.

There are basically four types of OSHA violations: other than serious (OTS), serious, willful and repeat. While penalty amounts for OTS and serious are capped at $7,000, willful and repeat violations are capped at $70,000. OSHA has recently begun conducting more and more inspections, giving its Compliance Safety and Health Officers orders to focus on issuing as many serious and OTS violations as possible with each inspection. Many times, the initial citations are listed as "serious" but they are often willing to "reduce" those to OTS in the hopes of getting the business owners to settle the claims without litigation, thinking that an OTS violation isn't too bad. Don't fall for this.

Once you have an OTS violation, if you have another OSHA inspection in the next five years, and there is a similar violation, now you are facing a "repeat" violation. So now when OSHA conducts inspections they accumulate as many violations as they can, even some that seem "knit-picky" to a business owner; lack of written hazard communication plan; fire extinguishers without current certifications; electrical panels with things stacked in front of them; exits that are blocked or partially blocked. Did you know any of these can get you a $7,000 penalty? Did you know that if OSHA conducts a follow-up or repeat inspection, within five years, and you have a previously cited OTS violation, now it becomes a repeat violation and can cost you $70,000 - for each subsequent violation? Just as they "stack" OTS citations, they have begun to "stack" the repeat violations as well. The problem is $70,000 penalties stack pretty quickly. As they say, $70,000 here, $70,000 there, pretty soon you're talking about real money!

Through this tactic, OSHA is issuing many more significant penalties to employers. By using follow-up inspections and "repeat" violations nationwide, OSHA has tripled the number of issued violations of over $100,000 in the past two years. Prior to the Obama administration, repeat penalties were seldom issued because: 1. OSHA treated employer workplaces as independent, individual establishments; 2. limited its "look-back" period to the past three years; and 3. was unlikely to re-visit workplaces within a few years.

Now, however, OSHA: 1. treats workplaces within a corporate family as one location for the purpose of calculating repeat violations; 2. now looks back up to five years to form the basis for repeat violations; and 3. selects and inspects companies with past violations for the purpose of finding and citing more repeat violations. Using these tactics, OSHA has increased the number of repeat violations in the past two years by over 200 percent. How long will you stay in business if you receive a $100,000-plus OSHA penalty?

What about the business owner, who tries to follow the myriad OSHA regulations, yet has an employee that has a lapse in judgment and doesn't follow the employers training or safety policy, and then gets slapped with a serious OSHA citation? Thinking he has no options, and not knowing the risks, he is happy to negotiate down to an "other than serious" violation, chalking it up to the cost of doing business. But now, not only is the business now on OSHA's little watch list, it is primed for the issuance of a repeat violation that can result in much more significant penalties.

In negotiating with OSHA recently on behalf of one of my consulting clients, the OSHA representative offered to reduce my client's citation from serious, to "less than serious" and completely waive any penalty. The OSHA representative said that they were willing to settle the case because "they were so overwhelmed with cases coming to hearing" that they needed to settle some; "After all (he told me), we'll have lots of opportunities in the future to visit [my client] again." Do you still think they're doing you a favor reducing your initial citation?

OSHA is on a direct collision course with business. So business owners beware; think twice before you agree to settle with OSHA for an OTS violation. They are setting a trap for the unwary. If enough businesses begin to stand up to OSHA, and enforce their rights through the hearing process, perhaps the costs of prosecuting all these minor violations will make OSHA reconsider their current tactics.

John Skowronek is an OSHA authorized trainer and safety consultant with Square One Solutions in Reno. Contact him at www.worksq1.com or follow him on twitter @KnotheadNed.