By James L. Curtis, Benjamin D. Briggs, and Craig B. Simonsen

Seyfarth Synopsis: The DOL has published its 2019 OSHA civil penalties.

We had blogged previously about the U.S. Department of Labor’s (DOL) 2018 adjustments to the maximum civil penalty dollar amounts for OSHA violations. The DOL has now finalized the 2019 inflation adjustments which again nudges the penalties even higher.  84 Fed. Reg. 213 (Jan. 23, 2019).

Under the 2019 rule, the maximum OSHA civil penalties will be:

2018 Penalties

2019 Penalties
Other than Serious violations: $12,675 $13,260
Serious violations: $12,675 $13,260
Repeat violations: $126,749 $132,598
Willful violations: $126,749 $132,598
Failure to abate (per day): $12,675 $13,260

The new OSHA penalty amounts are applicable to OSHA citations issued after January 23, 2019, whose associated violations occurred within the six month statute of limitations.

Going forward, DOL is required to adjust maximum OSHA penalties for inflation by January 15 of each new year.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Mark A. Lies, IIJames L. CurtisDaniel Birnbaum, and Craig B. Simonsen

Seyfarth Synopsis:  New Review Commission decision refines the definition of what OSHA must prove to establish a “Repeat” violation.

On September 30, 2008, OSHA issued a citation to Angelica Textile Services, Inc., a commercial laundry, alleging ten Serious and four Repeat items. Seyfarth represented the employer, Angelica Textile Services, Inc. After the parties filed cross motions for summary judgment, the Administrative Law Judge issued a decision affirming two of the Serious items and vacating the remaining twelve items, including the Repeat citations. The Secretary of Labor appealed, arguing that the judge improperly vacated two Repeat citations that alleged deficiencies of permit required confined spaces (PRCS) and lockout/tagout (LOTO) procedures.

On July 24, 2018, nearly a decade after the citations were issued, the Occupational Safety and Health Review Commission (Commission) affirmed the previously vacated citation items, but characterized and reclassified them as Serious rather than Repeat violations, and issued a single reduced penalty of $7,000. See Secretary of Labor v. Angelica Textile Services, Inc., No. 08-1774.

Most importantly, the Commission refined the definition of what OSHA must prove to establish a Repeat violation. OSHA has traditionally taken the position that all the evidence it had to show to meet the “substantial similarity” standard was merely that the same type of equipment, process or regulation that was involved in the current violation was also involved in a prior final citation which served as the basis for the Repeat violation. In the Angelica decision, the Commission clarified that a showing of “substantial similarity” can be rebutted with a showing of “disparate conditions and hazards associated with these violations of the same standard.”

The decision also refined what defenses an employer may have to a Repeat citation based on the abatement actions it took to abate the earlier violation. Applied to the facts of the case, the Commission noted that the prior PRCS citation identified “critical deficiencies” in the employer’s compliance program.  However, in response to the prior citation, the Company “actively sought out and eliminated similar hazards,” including developing a PRCS program specific to the condition cited.

The majority in Angelica noted that the Company’s prior abatement efforts also resulted in reduced citations in the current matter.  Similarly, the Commission noted that the prior LOTO citation to the Company had identified a “comprehensive failure of compliance.”  However, the present case involved procedures established in the interim, as well as surveys completed for machines that the Company had undertaken in response to the prior violations.  Rather than lacking the previous comprehensive procedures as was the case in the earlier citations, there were only two discrete deficiencies in the employer’s current program.

Significantly, the Commission also remarked in a footnote that the Secretary had accepted the Company’s prior abatement method, thus giving no basis for OSHA to conclude that the Company knew that its interim safety precautions and corrective actions were not compliant.

After comparing the employer’s attempts at compliance with the prior and subsequent citations, the Commission reasoned that, while the prior citations had been based on a complete failure to comply, the current citations reflected only minimal deficiencies. In other words, “[the Company] took affirmative steps to achieve compliance and avoid similar violations in the future.”  Because of these interim abatement actions, the Commission concluded that there was no basis for a Repeat citation.

In light of the Angelica decision, it appears that OSHA’s burden of proof has been measurably increased to establish a Repeat violation and it will be more difficult for OSHA to prove Repeat citations against employers. Following the acceptance of a citation, employers should work with a team well versed in the concepts espoused in the Angelica decision so that it can take the appropriate steps to establish that it acted in good faith and took effective and documented action to correct the violation. Employers should “actively [seek] out and eliminate[] similar hazards,” or “[take] affirmative steps to achieve compliance and avoid similar violations in the future.”  As there is no mechanical way to avoid a Repeat citation, and the corrective actions taken will depend on the factual circumstances surrounding the citation, employers should consult experienced counsel for guidance on what constitutes abatement of the citation and how to properly document such actions. Most importantly, beyond the concern of legal liability, if an employer takes the interim actions endorsed by the Angelica decision, it will measurably enhance the safety and health of its workplace.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The DOL has published its 2018 OSHA civil penalties.

We had blogged previously about the U.S. Department of Labor’s (DOL) 2017 adjustments to the maximum civil penalty dollar amounts for OSHA violations. The DOL has now finalized the 2018 inflation adjustments which will nudge the penalties even higher.  83 Fed. Reg. 7 (Jan. 2, 2018).

Under the 2018 rule, the maximum OSHA civil penalties will be:

2017 Penalties 2018 Penalties
Other than Serious violations: $12,675 $12,934
Serious violations: $12,675 $12,934
Repeat violations: $126,749 $129,336
Willful violations: $126,749 $129,336
Failure to abate (per day): $12,675 $12,934

The new OSHA penalty amounts are applicable to OSHA citations issued after January 12, 2018, whose associated violations occurred within the six month statute of limitations.

Going forward, DOL is required to adjust maximum OSHA penalties for inflation by January 15 of each new year.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

iStock_000009254156LargeSeyfarth Synopsis: In a move that may be employer-friendly, President Trump has re-nominated Heather MacDougall to the OSHRC. MacDougall represents a Republican vote on cases appealed before the Commission.

Heather L. MacDougall has recently been re-nominated by President Trump to the Occupational Safety and Health Review Commission (OSHRC).  McDougall was originally nominated to the OSHRC in 2014 by then-President Obama and confirmed unanimously by the Senate.  MacDougall had then been designated as acting Chair of the OSHRC. Her previous term was set to expire in January 2017.

OSHRC is an independent federal agency set up to adjudicate disputes over OSHA citations or penalties, including hearing appeals from employers.  Although MacDougall and Commissioner Cynthia L. Attwood are currently its only members, they have a quorum and may issue decisions.  The tird seat on the OSHRC remains open.

According to the Whitehouse news release MacDougall came to the OSHRC with twenty years of experience representing employers throughout the United States in matters involving labor, employment, and occupational safety and health law, most recently with Akerman LLP in West Palm Beach, Florida.  In addition, she had served as Chief Counsel to OSHRC Chairman W. Scott Railton.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Lawrence Z. Lorber, Annette Tyman, Jaclyn W. Hamlin, and Brent I. Clark

BLACKLISTEDSeyfarth Synopsis: By a vote of 49-48 on March 6, 2017, by the U.S. Senate, both Houses of Congress have now moved to rescind the regulations issued pursuant to President Obama’s Executive Order 13678, entitled Fair Pay and Safe Workplaces but popularly referred to as the “Blacklisting” Order, which required government contractors to report all potential labor violations as well as disclose the basis of pay to employees working on government contracts.  If President Trump signs the rescission resolution, as he is expected to do, the regulations will be rescinded. Under the Congressional Review Act, if a regulation is subject to rescission, the Executive Branch cannot reissue the same or similar regulation absent legislative authorization.

For our readers that are interested in occupational safety and health topics, we are blogging this link to our colleagues “One Minute Memo”, with this introductory note. OSHA citations are covered among the labor laws covered by Executive Order 13673 (Blacklisting Order). The way the Blacklisting Order read was that the covered violations included citations which were not final, which were being contested by the employer, and which may ultimately be withdrawn through settlement or by a Judge once  the employer had a chance to present its defense.  The Blacklisting Order was another example of the Obama Administration’s “guilty until proven innocent” approach to regulating businesses and employers.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OFCCP & Affirmative Action Compliance Team, the Workplace Safety and Health (OSHA/MSHA) Team, or the Workplace Policies and Handbooks Team.

By James L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The DOL has published its 2017 OSHA civil penalties.

We had blogged previously about the U.S. Department of Labor’s (DOL) 2016 adjustments to the maximum civil penalty dollar amounts for OSHA violations. The DOL has now finalized the 2017 inflation adjustments which will nudge the penalties even higher.  92 Fed. Reg. 5373 (Jan. 19, 2017).

Under the 2017 rule, the maximum OSHA civil penalties will be:

                                                                2016 Penalties            2017 Penalties

  • Other than Serious violations:             $12,471                       $12,675
  • Serious violations:                               $12, 471                      $12,675
  • Repeat violations:                               $124,709                     $126,749
  • Willful violations:                               $124,709                     $126,749
  • Failure to abate (per day):                   $12, 471                      $12,675

The new OSHA penalty amounts are applicable to OSHA citations issued after January 13, 2017, whose associated violations occurred within the six month statute of limitations

Going forward, DOL is required to adjust maximum OSHA penalties for inflation by January 15 of each new year.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Annette Tyman, Lawrence Z. Lorber, Jaclyn W. Hamlin, and Brent I. Clark

BLACKLISTEDSeyfarth Synopsis: The first of several anticipated challenges to Executive Order 13673, “Fair Pay and Safe Workplaces,” has resulted in a preliminary injunction staying the implementation of some – but not all – aspects of the Executive Order and its implementing regulations. In a significant victory for the government contracting community, the Associated Builders and Contractors of Southeast Texas won an injunction staying the application of the reporting and disclosure requirements, as well as the prohibition on entering into mandatory pre-dispute arbitration agreements.  The Judge left the paycheck transparency provisions in effect, however, and as a result, government contractors must still plan for compliance with those requirements.

Introduction

For our readers that are interested in occupational safety and health topics, we are blogging our colleagues “Management Alert” below, with this introductory note. OSHA citations are covered among the labor laws covered by the Executive Order 13673 (Blacklisting Order). The way the Blacklisting Order reads is that the covered violations include citations which are not final, which are being contested by the employer, and which may ultimately be withdrawn through settlement or by a Judge once the employer has had a chance to present its defense.  The Blacklisting Order is another example of the government’s “guilty until proven innocent” approach to regulating businesses and employers.

Note also that the Blacklisting Order will be applicable under:

  • The Fair Labor Standards Act
  • The Occupational Safety and Health Act of 1970 (including OSHA-approved State Plans equivalent to State Laws)
  • The Migrant and Seasonal Agricultural Worker Protection Act
  • The National Labor Relations Act
  • 40 U.S.C. chapter 31, subchapter IV, also known as the Davis-Bacon Act
  • 41 U.S.C. chapter 67, also known as the Service Contract Act
  • Executive Order 11246 of September 24, 1965 (Equal Employment Opportunity)
  • Section 503 of the Rehabilitation Act of 1973
  • The Vietnam Era Veterans’ Readjustment Assistance Act of 1972 and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974
  • The Family and Medical Leave Act
  • Title VII of the Civil Rights Act of 1964
  • The Americans with Disabilities Act of 1990
  • The Age Discrimination in Employment Act of 1967
  • Executive Order 13658 of February 12, 2014 (Establishing a Minimum Wage for Contractors)

In a significant victory for the government contracting community, a federal judge sitting in the U.S. District Court for the Eastern District of Texas partially stayed the implementation of Executive Order 13673, “Fair Pay and Safe Workplaces,” referred to in the government contracting community as the “Blacklisting Order.”  As discussed in more detail here, the Blacklisting Order would:

  1. Require government contractors to disclose “labor law violations” under fourteen different statutes and Executive Orders when bidding for or modifying contracts;
  2. Prohibit employers from entering into mandatory pre-dispute arbitration agreements with employees; and
  3. Require certain disclosures to independent contractors and employees concerning their employment status and information related to wages and hours worked.

When the White House issued the Executive Order, the government contracting community expressed concerns about the substantial burdens it would impose on businesses and noted that the Order seemed to exceed the limits of Executive power.  Judge Marcia Crone, a federal judge in Texas, agreed.  Late on October 24, 2016, Judge Crone issued a preliminary injunction blocking: (1) the labor law violations disclosure requirements and (2) the prohibition against entering into mandatory pre-dispute arbitration agreements.  The preliminary injunction applies to all federal contractors subject to the Executive Order and it blocks all aspects of the requirements and the implementing regulations, except the paycheck transparency provision.

The Plaintiffs, an association of government contractors in Texas, argued that the Executive Order and its implementing regulations and guidance exceeded Executive power and would impose irreparable harm on their businesses.  Judge Crone found the Plaintiffs’ arguments compelling with regard to the reporting and disclosure requirements and arbitration clause prohibitions, and stayed the implementation of those requirements.

In her decision, the Judge addressed several of the arguments raised by the contracting community Plaintiffs and the government Defendants.

  • The Judge found that the Executive Order and its implementing regulations and guidance likely exceeded the limits of Executive power.
  • She noted that fourteen statutes and Executive Orders of which the Blacklisting Order requires contractors to publicly disclose “violations” all have their own detailed enforcement mechanisms and penalties.
  • The Judge noted that under the Blacklisting Order, a contractor could face debarment or disqualification even if it was contesting a violation or over nothing more than the issuance of a citation by an individual government agency official.
  • Judge Crone also found persuasive the Plaintiffs’ arguments that the provisions of the Executive Order and Final Rule which restrict or prohibit certain mandatory pre-dispute arbitration agreements are in violation of the Federal Arbitration Act and the government’s general policy in favor of arbitration.
  • The Judge found the reporting and disclosure requirements to be “compelled speech” that likely violates the contractors’ First Amendment rights and also agreed that the Executive Order likely violates contractors’ Due Process rights by “compelling them to report and defend against non-final agency allegations of labor law violations without being entitled to a hearing at which to contest such allegations.”
  • Judge Crone found that the Executive Order is likely arbitrary and capricious “in view of the complex, cumbersome, and costly requirements . . . which hamper efficiency without quantifiable benefits.”

Although the contracting community’s victory is substantial, it was not complete, as Judge Crone left the paycheck transparency provisions to take effect on their regular schedule (starting on January 1, 2017).  The paycheck transparency provisions require that contractors with procurement contracts of $500,000 provide their employees with a document disclosing “the individual’s hours worked,  overtime hours, pay, and any additions made to or deductions made from pay.” For exempt employees, the document may omit information concerning overtime hours worked so long as the individual has been informed of his or her exempt status.  Covered contractors in states with equivalent paycheck transparency laws, such as New York and California, are deemed to be in compliance with the Executive Order’s requirements so long as they comply with their state’s paycheck transparency law.  Contractors should also be aware that there is always a possibility that the preliminary injunction may be lifted – whether by the Fifth Circuit or another federal court – and in that event, the reporting and disclosure requirements could be reinstated.  For that reason, covered contractors may wish to continue to collect data in case they find themselves once again subject to the reporting and disclosure obligations.

The request for – and subsequent partial granting of – a preliminary injunction staying the implementation of certain provisions of the Blacklisting Order is only the opening salvo in what is likely to be a long fight between the contracting community and the federal government.  As we discussed in our previous alert on the topic, multiple court challenges are possible, and the Blacklisting Order’s provisions may appear before Congress at some point.

Meanwhile, thanks to Judge Crone’s preliminary injunction, the reporting and disclosure requirements and the prohibition on mandatory pre-dispute arbitration agreements are enjoined until further notice, while we continue to closely monitor developments.  Preliminary injunctions typically remain in effect at least until the conclusion of the underlying litigation.  The Plaintiffs may petition the court for the preliminary injunction to become permanent, blocking the government from enforcing the reporting and disclosure requirements and the prohibition on mandatory pre-dispute arbitration agreements (unless the injunction is overturned).  Or the government Defendants may appeal to the U.S. Court of Appeals for the Fifth Circuit, perhaps paving the way for an ultimate ruling by the U.S. Supreme Court.  The ultimate resolution of the contracting community’s concerns about the Blacklisting Order remains to be seen.  One thing is clear, however: while government contractors should be pleased with their victory in Texas, they must still plan to comply with the paycheck transparency provisions.  The contracting community has won the first battle, but the war over blacklisting continues.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OFCCP & Affirmative Action Compliance Team, the OSHA Compliance, Enforcement & Litigation Team, or the Workplace Policies and Handbooks Team.

By James L. Curtis and Craig B. Simonsen

Warehouseman after accident at heightSeyfarth Synopsis: OSHA just updated its annual list of the top ten cited standards. The list provides a starting point for employers reviewing their own safety programs.

OSHA just announced the Agency’s annual listing of the “Top Ten Most Frequently Cited Standards.” OSHA’s release noted that, “one remarkable thing about the list is that it rarely changes. Year after year, our inspectors see thousands of the same on-the-job hazards, any one of which could result in a fatality or severe injury.” Statistically, he noted that more than “4,500 workers are killed on the job every year, and approximately 3 million are injured.”

The ten most frequently cited standards are as follows:

OSHA’s 2015 Top Ten image from OSHA.gov.

As in years past, the Top Ten listing identifies fall protection, hazard communication, scaffolding, respiratory protection and lockout/tagout (LOTO) as major sources of citations. This annual listing is a testimony to both the difficulty of consistent compliance with these standards, and OSHA’s ongoing emphasis on these hazards.

Employers should use this listing as a reminder to emphasize these areas during new employee orientation and existing employee refresher training. Employers should also realize that OSHA will absolutely be looking for violations in these areas when they visit your worksite.

Employers with questions or concerns about any of these issues or topics are encouraged to reach out to the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

 

By Brent I. Clark and Ilana R. Morady

iStock_000076487827_LargeExpedited Hearings

A hot topic today is developments in the law of California OSHA (Cal-OSHA). Panel members are discussing the new and controversial rule on expedited proceedings under 8 CCR 373. Under the expedited proceedings rule, cases are put on a fast track when abatement has been appealed or abatement has not occurred.

Specifically, the rule states “Where the Appeals Board is aware or is notified that an alleged violation appealed is classified by the Division of Occupational Safety & Health as a Serious, Repeat Serious, Willful Serious, Willful, Willful Repeat or Failure to Abate, and either abatement is on appeal, or abatement has not occurred, the Appeals Board shall expedite the proceeding.”

When a case is expedited, a hearing must occur within 150 days of when an employer’s appeal is docketed. This new rule has proved itself to be very burdensome on employers, who are faced with either quickly preparing for hearing or abating alleged hazards which may have no actual basis in law or fact. This scheme brings California closer to other state plans which don’t permit appeals to stay abatement, especially because the effect has been that many employers are abating alleged hazards during the appeal process, regardless of whether the allegations have merit.

Heat Illness

As employers in California know, Cal-OSHA has a heat illness standard. A new provision under the standard involves access to shade. Specifically, 8 CCR 3395 now requires that employees be allowed and encouraged to take a preventative cool-down rest in the shade “when they feel the need to do so” to protect themselves from overheating. While everyone agrees that heat illness is a serious issue that must always be prevented to the extent possible, this new provision has the potential to create problems for employers because of the subjective nature of the rule and the potential for abuse by employees.

If employers encounter situations where they believe an employee is abusing the “when they feel the need to do so” requirement, they must remember to proceed with caution. Unfortunately the vague nature of the rule does not provide a lot of guidance on how employers can react these situations while avoiding potential citations or retaliation allegations.  The new regulation also requires employers to pay an additional hour of pay whenever they fail to meet the requirements of the standard.   This creates an additional non-OSHA penalty monetary obligation that can present challenges for covered employers.

Repeat Violations

The definition of what constitutes a repeat is changing. Currently the “look back” for repeats in California is 3 years. Now, keeping in line with federal-OSHA, Cal-OSHA is expected to start to looking  back 5 years. The other change that will occur is Cal-OSHA will be citing repeat violations based on previous state-wide violations.

This is a significant change; previously, Cal-OSHA could only cite for a repeat violation if the previous violation occurred at the same facility. We will blog an update when this new rule takes effect. The date is uncertain at this time but could be within the next few weeks.

By James L. Curtis and Patrick D. Joyce

iStock_000065158991_Full.jpgAs we mentioned in our previous blog, the bipartisan budget signed by President Obama on November 2, 2015 contains provisions that will allow OSHA to raise maximum penalties for the first time in 25 years.

The maximum initial “catch up adjustment” will be based on the difference between the October 2015 Consumer Price Index (CPI) and the October 1990 CPI. The October 2015 CPI was released yesterday, November 17, 2015, and came in at 237.838.  Based on the October 1990 CPI of 133.500, the maximum catch up adjustment will be approximately 78.16% and the new maximum penalties could be:

  • Other than Serious violations: $12,471
  • Serious violations: $12,471
  • Willful violations: $124,709
  • Repeat violations: $124,709

As we previously mentioned, OSHA has the option to choose a lower catch up adjustment than the maximum allowable, but based on comments by Dr. Michaels, it is unlikely OSHA will implement anything but the maximum allowable catch up adjustment.