The Federal Occupational Safety and Health Administration (OSHA) increased its maximum penalties last summer for the first time since 1990.
The increase was driven by a new law requiring federal agencies to adjust penalties to account for inflation. However, the OSH Act, which specifically provides the maximum penalties OSHA can administer, has not been amended and still prevents OSHA from issuing penalties higher than the levels set in 1990.
In essence, OSHA has enacted regulations that permit penalties higher than those allowed by the OSH Act. In light of the conflict between the new OSHA regulations and the OSH Act, employers could legally challenge this increase.
In August of last year, OSHA increased the top penalty for serious citations to $12,471 and $124,709 for willful and repeat citations. This change became effective immediately for citations issued by the federal agency, though most state plans have been reluctant to increase their fines.
Just prior to inauguration day, the agency again increased the penalties—to $12,675 for serious and $126,749 for repeat/willful citations—on Jan. 13 due to inflation.
According to The Federal Civil Penalties Inflation Adjustment Act, OSHA’s penalty increase occurred pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the “Inflation Law”), which directs agencies to adjust their penalties for inflation to “catch up” for the lack of previous increases, and every year thereafter.
The Office of Administrative Law has approved DIR’s amendments implementing the maximum and minimum penalty increases passed by the Legislature earlier this year. The amendments took effect September 14, 2017, and conform to changes in federal OSHA’s civil penalty structure.
The language around this update reads:
For citations issued on or after September 14, 2017, the penalties that Cal/OSHA is authorized to propose for violations classified as Regulatory, General, Willful, or Repeat are as follows:
- The maximum penalty for General and Regulatory violations, including Posting and Recordkeeping violations is increased from $7,000 to $12,675.
- The maximum penalty for Willful and Repeat violations is increased from $70,000 to $126,749.
- The minimum penalty for Willful violations is increased from $5,000 to $8,908.
- The maximum penalty for violations classified as Serious has not changed, but the fixed statutory penalties of $2,000 for Serious Tower-Crane and Serious Carcinogen-Use violations were repealed by the Legislature. As a result, the maximum penalty of $25,000 for Serious violations now applies to Serious Tower-Crane and Serious Carcinogen-Use violations. The amendments to 8 CCR § 336 only change the maximum and minimum penalties as specified above. There are no other changes to the manner in which proposed penalties are to be calculated
In addition, Cal OSHA is working to increase staffing. Employers have seen an increase in Cal OSHA inspections due to the increase in staff as well as in response to Federal audits requiring Cal OSHA to increase inspections and penalties. To assist in this process, OSHA offers Compliance Assistance Specialist for employers who need help complying with these latest requirements.
Additionally, Bolton & Company offers OSHA consultation services and support regarding the latest industry developments and updates.