Posted in: Compliance, Fatality, In this week's e-newsletter, Latest News & Views, lockout/tagout, OSHA news
“We trust the Commission will act before the decade is out,” the U.S. District Court wrote earlier this year regarding OSHA fines that date back to 1993. Action has been taken, and the result could affect how much OSHA can charge for violations. In October 1993, a Dayton Tire employee in Oklahoma City died from injuries he suffered when a machine activated unexpectedly.
OSHA issued 107 willful violations against Dayton relating to the lockout/tagout (LO/TO) standard. At $70,000 per violations, the maximum for ones categorized as willful, the total bill to the tire company was $7.49 million.
In 2010, a decision by the Occupational Safety and Health Review Commission (OSHRC) on Dayton’s appeal brought the fines down to $1.975 million.
(Because of the complicated nature of the case and vacancies on the commission, the OSHRC couldn’t come to a majority decision.)
Now the OSHRC has reassessed the case. Final penalty: $197,500, a 90% reduction. Reason: The 99 surviving violations are now categorized as serious, and those fines carry a maximum of $7,000.
Add reductions for a good safety history and good faith of the employer, and now the cost of each fine ranges from $1,000 to $2,500 each.
The OSHRC was ordered to reconsider the gravity of the fines by the district court, which ruled since Dayton made some effort to comply with the OSHA LO/TO standard, the violations weren’t willful.
So, where is the bar now set for an OSHA violation to be considered willful? The district court said:
- “A willful violation is an act done voluntarily with either an intentional disregard of, or plain indifference to, the [OSH] Act’s requirements,” and “a good faith, reasonable belief by an employer that its conduct conformed to the law negates a finding of willfulness.”
- “It takes a lot to be plainly indifferent.”
- “A difference in interpretation — even a persistent one — is not synonymous with willfulness.”
Since the court has ruled that “it takes a lot to be plainly indifferent,” it may become much more difficult for OSHA to find violations to be willful.
And the difference in fines is a factor of ten: a $7,000 maximum for a serious violation versus a top amount of $70,000 for a willful citation.
If OSHA fines are to serve as a deterrent for companies, is a $7,000 maximum fine enough? Let us know what you think about that, and this case, in the comments below.
(Secretary of Labor v. Dayton Tire, OSHRC, No. 94-1374, 5/23/12)