What happens when two federal laws regarding OSHA penalties conflict with each other?
That’s a question that the courts may have to take up.
Travis Vance, an attorney with Fisher Phillips who deals with OSHA and MSHA matters, writes in the firm’s blog that the recent penalty increases may not be valid.
First, some background.
In 2015, Congress passed legislation allowing various federal agencies, including OSHA, to increase their maximum penalties for inflation. In OSHA’s case, a one-time catch-up was allowed, because the last time OSHA penalties were increased was in 1990.
In August 2016, the result was a 78% increase:
- The maximum for willful and repeat violations went from $70,000 to $124,709, and
- The maximum for serious violations went from $7,000 to $12,471.
Then in January 2017, the fines went up again:
- Willful and repeat citations now top out at $126,749, and
- Serious citations can be up to $12,675.
As we’ve noted, OSHA is using the new maximums enacted at the end of the Obama administration.
Vance raises this issue in the blog post: The OSH Act was amended in 1990 to set the maximums at the $70,000 and $7,000 levels.
When Congress passed the bill which allowed the increases, it didn’t amend the OSH Act. The two measures, the multi-agency increases passed in 2015 and the OSH Act as amended in 1990, appear to be at odds with each other.
Vance predicts that the new maximums will face a court challenge, or the Trump administration will undo the increases.
There’s another way the Trump administration may eventually handle the new increases. OSHA offers various reductions in the maximum fines depending on several variables, including company size and good faith effort to comply with regulations.
Those reductions are set administratively through OSHA’s Field Operations Manual. By creating a new FOM, the Trump administration could keep the new maximums, but alter the way fines are ultimately calculated.
And in many cases, negotiations with OSHA often bring greatly reduced penalties, sometimes less than half the original amount.
The increases are already facing a challenge, but from a different angle. Federal OSHA has always expected state safety agencies to increase their maximum penalties to match. Several states have already stated they don’t intend to increase their maximums to the new federal level.