On April 22, 2010, Dr. David Michaels, head of OSHA, sent a letter to his 10 regional administrators outlining the new rules in an effort to blatantly increase the dollar amount of penalties for deterrence. The penalty changes will become effective over the next several months.

Some details on the new penalty plan are:

Looking at five years of your past violation history when assessing a current penalty rather than the current three years. If you’re clean, you may get a 10% reduction – of course this will now be 67% harder to achieve. However, if you have been cited for anything more than a “less than serious” violation, your penalty is increased 10%. Again, this is 67% more exposure.

Looking at five years of your past violation history when assessing a repeat violation penalty rather than the current three years. Again, this is 67% more exposure.

Establishing a “Gravity-based” penalty system that results in $3,000 and $7,000 for all serious violations.

No reduction in penalty for employers with 251 or more employees.

Elimination of a 10 percent reduction for employers with a strategic partnership agreement.

Establishment of a penalty floor. The minimum proposed penalty after history, size and good faith adjustments will be increased to $500.

Dr. Michaels states that these changes will generally increase the overall dollar amounts of all OSHA proposed penalties. He believes that the average penalty for a serious violation will increase from approximately $1,000 to an average of $3,000 to $4,000.

Duplicate the Compliance Officer’s moves.

If he takes a measurement or photograph, take your own measurement or photo, perhaps from another perspective for your records. If unsure, feel free to ask why he has a particular interest in a given area. Remember, whatever is in site is subject to inspection, so try to escort him via the safest route. Offer no information other than what you’re asked for- an attempt to smooth-over or talk your way out of an apparent hazard helps no one, and could be detrimental.

Conduct a closing conference.

At this time, you will review with the Compliance Officer any apparent violations and discuss possible methods and time periods necessary for correction. The compliance Officer will explain that the violations found may result in a citation and a proposed financial penalty, will describe the employer’s rights, and will answer all questions. Remember to speak only in terms of alleged violations.

Citations.

OSHA is required by law to issue citations for violations of safety and health standards. The agency is not permitted to issue warnings. Citations include: a description of the violation, the proposed penalty if any, and the date by which the hazard must be corrected. In most cases, citations are prepared at the local OSHA office and mailed to the employer. OSHA has up to six months to send the Notice of Penalty, with it usually taking two to three months on average for you to receive this notice.

Contesting/ Negotiating a Citation

Employers have 15 working days upon receipt to file an intention to contest OSHA citations. An employer may request an informal conference with the area director to discuss any citations issued if you feel an OSHA citation is unreasonable. Citations may disputed for two common causes; that the citation is false, or that the citation’s dollar penalty is excessive. Two less common but still worthy pursuits are; disputing the citation’s contention that the danger was real, serious, and that an accident was likely to occur, and that you were responsible for causing the unsafe conditions. While this may not relieve you completely of a penalty, it may count toward negotiating a better deal.

Contesting is frequently a good idea since OSHA will typically negotiate with the employer to a lesser penalty amount. The agency and the employer can then arrange a settlement agreement to resolve the dispute, and more importantly, to demonstrate that the hazards were eliminated.