Safety and OSHA News

Attorney: Why companies should fight more OSHA citations

Recently, we wrote that an Occupational Safety and Health Review Commission ruling could make it more difficult for OSHA to get willful citations to stick. Now, a lawyer specializing in OSHA citation appeals has expressed the same opinion, and we have anecdotal evidence that this is already happening.

In May, the OSHRC reclassified 99 violations against Dayton Tire from willful to serious.

The fines stemmed from an October 1993 incident in which a Dayton Tire employee in Oklahoma City died from injuries he suffered when a machine activated unexpectedly.

What had been $1.975 million in fines regarding lockout/tagout dropped to $197,500, a 90% reduction.

The U.S. Court of Appeals, DC Circuit, had ordered the commission to reconsider the gravity of the fines. Reason: The court said Dayton Tire made some effort to comply with the OSHA LO/TO regulations, so the violations weren’t willful.

OSHA fines are categorized as willful when the company committed the violation with either an intentional disregard of or plain indifference to OSHA regulations.

“It takes a lot to be plainly indifferent,” the DC Circuit Court wrote in its opinion.

Now, in a blog post, attorney Shannon Young of Harmon & Davies writes this decision “gives employers an even stronger basis from which to contest willful OSHA citations.”

“What this means is that as long as an employer is acting in good faith to comply with OSHA regulations,” Young writes, “even if OSHA later determines that the employer’s actions fell short of what was required under OSHA regulations, the employer should not be cited for a willful violation.”

The difference in financial penalties for companies can be huge. The maximum allowed for a willful violation is $70,000. The maximum for a serious citation is $7,000.

And there’s anecdotal evidence the district court’s ruling may be affecting OSHRC decisions already.

In a case involving trenching, an OSHRC administrative law judge ruled a willful citation issued to a construction company should be reduced to a serious violation because the supervisor at the trench site was “inexperienced, uninformed and confused about how to protect employees.”

“The facts of this case do not establish that [the supervisor] possessed a state of mind that, if he were informed of the [OSHA] standard, he would not care.”

In other words, he wasn’t indifferent.

Legislators, seeking to give OSHA more teeth, have re-introduced, every two years, bills that would increase the maximum allowable fines for safety and health violations.

However, given these rulings based on definitions in the Occupational Safety and Health Act, perhaps OSHA reform needs to focus on the definitions of certain types of violations.

What do you think? Let us know in the comments below.

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  1. That is a 90% reduction on the value of a human life.
    Nice work… we look more like developing countries each day!

  2. Evidently, if the employer posts a sign telling workers to be safe, then he doesn’t have to do anything else to avoid a charge of willful violation. What a gift!

  3. What about when the employer does everything by the book and the employee in charge decides to cut corners? Does that mean the company was willful? I think not. Yes the company gets to pay fines because ultimately the rules were not followed. This is another one of those areas that I wish OSHA could hand the individual a nice big fine. Untill people can’t hide behind company wallets short cuts will always be taken.

    • SHANE J DEIGHAN says:

      Agreed,OSHA from state to state differs many regulations,making it impossible to follow each regulation with the same job,same environment,same everything,but rules are completely reversed in one state to another,claiming safe in this state but not safe a few hundred miles to another state.making the industry I’m in CONFUSED.everyone is TERRIFIED of OSHA Fines being handed down.there needed to be a huge reconstruction in OSHA policy power and ridiculous rules that actually make my job MORE DANGEROUS,they have no clue how to even do my job but require steps and limiting job from getting worked on.If there is anyone out there that feels the same,reply,Trump has taken funding from them recently,hopefully making the American worker to actually work instead of working about being fined because a sign or cone is out if place,common sense and training together is needed in companys and workers.Enough is enough from the CORRUPTED OSHA REGULATIONS

  4. Captain Safety says:

    I’m with Joe on this one. No matter how much you try to instill a safety culture throughout your company, all it takes is one bone-head who is too macho to follow the regs to flush it all down the toilet. HP’s comment makes no sense at all, and I’m not sure, but might be a little racist.

    • FedupwiththeFed says:

      I’m with Joe and Captainsafety on this one. There are those employees that as soon as the supervisor or safety person leave the job site they are back to cutting corners, not wearing the required PPE, etc. You can also bet your sweet ass that if OSHA is on your job site you are getting some kind of fine. No matter how squeaky clean you or your company or your job site is they will find something or make up something. OSHA is just another failed and corrupt federal agency who’s sole purpose is to bring in money to feed a corrupt, in debt and failing government.

  5. I have to recognize that there is not enough detail to assess if this company was genuinely concern with the safety and wellbeing of their employees or if they were just on “compliance mode”. Perhaps they were the type of company where safety is a value all the way up to the CEO, and if that was the case the reduced citation is well deserved.

    However, we must also recognize that even if that was the case, this type of company is the exception rather than the rule. Especially in the stormy economic environment in which we are living, it is very easy for any company to adopt a more risk-taking approach towards safety on behalf of increased cash flow. And if you don’t believe this, most likely you do not work in the manufacturing industry.

    The comment was certainly not meant to be racist, but realistic; and I apologize to my colleagues if it offended them. I know it would certainly offend those profiting from misapplied safety compliance programs, but for that I am glad because it shows that they still have a conscience.

    Perhaps a reality check will help the point: Just recently a company across the Pacific had a chemical release of very serious consequences, the worst in the history of the country. Just Google or You Tube for specifics.

  6. Every employee–and especially every manager–is an agent of the company. If the company does not want to pay enough to get responsible people then they’re rolling the dice. If they hire people and don’t watch what they do or accept safety violations in exchange for productivity, they deserve what they get. If you can’t trust subordinates, then stay small and do all the work yourself.

  7. I was fined 53k recently and went to informal meeting and they offered me settlement of 22k for no body harness on flat roofing job. Yet their own code says if the building is less than 50ft. Width, then none is required. What? Only a safety monitor is required, which we had. These folks are out of control. The budget for osha is 595 million a year. Plus 30 million in fines? Do you think as an American citizen, or business that this is what you want your hard earned money to go to? It is ripping business apart. The Companies who constantly have people getting hurt, should be fined and jailed. But after 23 yrs roofing with no record of people getting hurt, they can watch you with binoculars from across the street for 45 mins, taking photos of you, and then without any oversight, fine you whatever is in their law. Sounds like spy stuff. But, it really happened, and I still cannot believe that our own goverment, who are suppose to be for the people, really are not. Common sense? Right out the door. But inspectors for osha, or building officials do not have to wear full body harnesses? What? Biggest waste of money in the goverment. 630 million dollars. How many Americans could benefit from that amount of money. Even if it was building housing for the elderly or other benevolence. We have to slow this stallion down to a trot. Goverment was designed for the people, not for its own agenda.

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