In August 2016 we reported on the substantial increases to OSHA fines for violations of safety and health regulations as part of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. (Sec. 701 of Public Law 114-74).  This law allowed OSHA a one-time “catch-up” adjustment for civil penalties followed by annual increases in penalties based on the Consumer Price Index. The “annual inflation adjustment” is required to be published in the Federal Register no later than January 15th each year. On January 18, OSHA published the 2017 annual inflation adjustment for OSHA penalties.

Based on the Consumer Price Index for the stipulated time period, the 2017 annual adjustment for OSHA penalties is marginally over 1%.  See Department of Labor Federal Civil Penalties Inflation Adjustment Act Annual Adjustments for 2017, 82 Federal Register 11 (January 18, 2017), pp. 5373-5387.  The final rule became effective on January 13, 2017.  As a result, increased penalties will apply to any penalty assessed after this date.

The 2017 maximum penalties are as follows:

  • Other-than-Serious: $12,675
  • Serious: $12,675
  • Repeat : $126,749
  • Willful: $126,749

OSHA published the following table in the Federal Register which should help to eliminate any guesswork regarding the level of penalties to be levied based on the date of the violations and when the penalty was assessed.

Violations occurring

 

 Penalty assessed  Which penalty level applies
On or before November 2, 2015

 

On or before August 1, 2016 Pre-August 1, 2016 levels
On or before November 2, 2015

 

After August 1, 2016 Pre-August 1, 2016 levels
After November 2, 2015

 

After August 1, 2016 but on or before January 13, 2017

 

August 1, 2016 levels
After November 2, 2015

 

After January 13, 2017 January 13, 2017 levels

Additionally, in response to criticism from the North Carolina Department of Labor and the Kentucky Labor Departement OSHA clarified that it expects State Plans to increase their maximum penalty amounts to align with Federal OSHA. Specifically, OSHA stated

[A]ll State Plans must increase their maximum and minimum penalty levels to be at least as high as OSHA’s initial catch-up maximum and minimum penalty levels… and must thereafter increase these maximums and minimums based on inflation.

* * *

OSHA will assist the State Plans to make these necessary changes occur. OSHA’s position has been and continues to be that State Plans must have maximum and minimum penalties that are at least as effective as OSHA’s.

82 Fed.Reg. 11 at p. 5375-76.

The full text of the rule can be read here.

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Photo of Tressi L. Cordaro Tressi L. Cordaro

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state…

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested citations, reserving litigation as the option if the client’s business objectives cannot otherwise be achieved. As a result, she has secured OSHA withdrawals of citations without the need for litigation.

Ms. Cordaro’s unique experience with government agencies involved in OSHA enforcement enables her to provide employers with especially insightful guidance as to how regulators view OSHA compliance obligations, and evaluate contested cases.

Ms. Cordaro served as the Presidentially-appointed Legal Counsel and Special Advisor to the past Chairman and Commissioner Horace A. Thompson, III at the U.S. Occupational Safety & Health Review Commission (OSHRC) in Washington, DC, the agency that adjudicates contested federal OSHA citations. As the Commissioner’s chief counsel, Ms. Cordaro analyzed all cases presented to the OSHRC and advocated the Commissioner’s position during decisional meetings.

In addition, Ms. Cordaro worked at the U.S. Department of Labor’s Occupational Safety & Health Administration developing OSHA standards, regulations and enforcement and compliance policies, with emphasis on the construction industry. She has in-depth experience on technical issues including, in particular, issues related to cranes and derricks in construction.