OSHA Enforcement Trends in Texas

OSHA Enforcement

In addition to exposing their employees to serious injuries and even fatalities, non-compliant employers expose themselves to severe punitive measures, including huge fines and penalties and even potential criminal liability directed towards business owners. When these things happen, businesses often suffer additional public humiliation and PR nightmares when OSHA issues press releases that get published and written about in local newspapers, trade journals and on-line for the local community, competitors and worst of all, customers to see. If that weren’t bad enough, according to the recently approved Federal budget for 2016, OSHA has been authorized to increase fines next year to account for inflation back dated to 1996 which will result in an estimated 80% increase to the existing fine schedule (see details below).

Recent OSHA Enforcement Trends

OSHA enforcement efforts are currently at historically high levels and have been rising consistently since 2008 with no signs of slowing down.
The number of “Significant Enforcement Cases” (ie: single inspection resulting in total fines exceeding $100,000) has more than doubled since 2007.
Fines are issued in over 75% of inspections of manufacturers. This percentage rises dramatically for manufacturers who don’t have a full time, qualified health & safety manager.
The average comprehensive OSHA enforcement inspection fine ranges between $15,000 and $50,000, but in many cases can exceed $100,000.
OSHA could show up at your door at any time, without warning to conduct an enforcement inspection.
Historical data shows that 20% of all inspections are triggered by an employee complaint, but this number rose to 23% in 2013 (most recent data). This is because OSHA is giving increased attention to “whistleblower” complaints in recent years.

What Can Trigger An OSHA Inspection?

Poor safety performance: High DART scores (Days Away, Restricted, Transfer) can result in companies being added to OSHA’s “SST Program” (Site Specific Targeting Program) and targeted for inspections. These inspections are typically “comprehensive” in nature, and will include scrutiny of all aspects of a company’s OSHA compliance programs including policies, procedures, employee training records, record keeping requirements, & physical hazards on the shop floor. These “comprehensive” inspections typically result in the highest fines.
National Emphasis Programs (NEPs): OSHA continually identifies high hazard industries and specific hazards to be targeted for comprehensive inspections. Examples of current NEPs in Texas that impact manufacturers include Fall Protection, Steel Fabricators, and Noise hazards.
Employee injury or fatality: OSHA instituted new injury and fatality reporting guidelines that went into effect January 1^st of 2015 as follows:

o Report all fatalities to OSHA within eight hours

o Report each work-related inpatient hospitalization, as well as amputations and losses of an eye, to OSHA within 24 hours

When OSHA receives notification of a serious employee injury, or especially a fatality, they will often respond with an enforcement inspection.

Explanation of Various Citation Types

WILLFUL: A willful violation is defined as a violation in which the employer either knowingly failed to comply with a legal requirement (purposeful disregard) or acted with plain indifference to employee safety.
SERIOUS: A serious violation exists when the workplace hazard could cause an accident or illness that would most likely result in death or serious physical harm, unless the employer did not know or could not have known of the violation. This is the most common type of citation.
REPEATED: A company may be cited for a repeated violation if the company has been cited previously for the same or a substantially similar condition and, for a serious violation, OSHA’s region wide inspection history for the agency lists a previous OSHA Notice issued within the past five years; or, for an other-than-serious violation, the establishment being inspected received a previous OSHA Notice issued within the past five years.
OTHER-THAN-SERIOUS: A violation that has a direct relationship to job safety and health, but is not serious in nature, is classified as “other-than-serious.”

OSHA Fines Set To Increase By 78% in August, 2016

The recently passed Bipartisan Budget Act of 2015, H.R. 1314, Sec. 701, signed into law by President Obama on November 2^nd, 2015 allows for significant increases for OSHA civil penalties and fines to keep pace with inflation, retroactively to 1996. The provision apparently allows for continued increases in OSHA fines to account for future costs of inflation.

Based upon the “CPI Inflation Calculator” from the Bureau of Labor Statistics (BLS) website, the maximum allowable OSHA fines beginning next year are estimated to be:

“Other Than Serious” citations have a current maximum fine of $7,000, but will increase to as much as $12,500 each
“Serious” citations have a current maximum fine of $7,000 but will increase to as much as $12,500 each
“Willful” citations have a current maximum fine of $70,000 but will increase to as much as $125,000 each
“Repeat” citations have current maximum fine of $70,000 but will increase to as much as $125,000 each

See details from the new legislation below:

Sec. 701. Civil monetary penalty inflation adjustments.

Section 701(a) establishes the short title for this section as the “Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.” Section 701(b) amends the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note) to:

1. Require all agencies with civil monetary penalties covered by the statute to update penalties based on their value in the last update prior to 1996 and the change in the CPI between that date and October 2015. The increase in penalties that results from this “catch up” calculation would be capped at 150% (so a penalty now set at $10,000 could not increase to more than $25,000).

4. Apply these provisions to the Occupational Safety and Health Act and civil penalties assessed under the Social Security Act.

Presumably these increases will help cover the massive US debt and budget deficit, since OSHA fines are not payable directly to OSHA, but instead to the United States Treasury.

Potential Personal Criminal Liability for Business Owners

Most business owners don’t understand that there’s potential personal criminal liability associated with work related fatalities, but there is:

If an employer is convicted of a willful violation of an OSHA standard that has resulted in the death of an employee, the offense is punishable by a court imposed fine or by imprisonment for up to 6 months or both.
A fine of up to $250,000 for an individual, or $500,000 for a corporation, may be imposed for a criminal conviction.

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By Russell Carr|2020-06-01T17:48:42-05:00July 17th, 2016|OSHA Texas Laws & Regulations|Comments Off

About the Author: Russell Carr

How A Sales Guy Transformed Into An Environmental, Health & Safety Expert & Advocate For Small Businesses I've spent my entire 30+ year career working within the manufacturing and “industrial services” sectors. The first 15 years of my career focused on sales of hazardous materials related products and services to the manufacturing sector, then for the last 16+ years transitioned into entrepreneurship, founding 3 small industrial services related contracting businesses. As you’ll see below, running these companies eventually lead me to found yet a 4th business, but more on that in a minute…. Here’s a brief description of the first 3 companies: Berg Environmental Services, Inc.: hazardous waste disposal & transportation services, founded in August of 2003 3rd party wind energy operations & maintenance services provider to utility scale wind farms throughout the US, founded in September 2007 3rd party oil & gas exploration & production services provider, founded in August of 2011 Each of these companies operated in extremely dangerous working conditions and exposed my employees to a wide range of serious health & safety hazards on a daily basis. To complicate matters, 2 of the companies also exposed the environment to significant potential harm. In other words, I learned very early the critical importance of managing environmental, health and safety issues so as to ensure the safety of our employees and the environment, as well as minimizing related risks. But I also learned how incredibly difficult and challenging this endeavor can be due to the wide range of complicated and continually changing environmental, health and safety rules and regulations that impacted the companies. To summarize the challenges: First I had to determine which regulations applied to each company, then I had to build compliance programs to meet those regulations, and finally I had to ensure that the programs were being managed and followed by our staff on a daily basis. All while trying to run and grow 3 profitable businesses…. It was overwhelming and I always struggled to keep up. To make matters worse, throughout this time I also witnessed the devastating price that companies, management and ownership can pay for failing to manage EHS compliance. This included seeing one of my hazardous waste management clients get sent to jail over environmental issues, another client’s management team threatened with jail time, a direct competitor get fined $378,000 by OSHA fine after an employee was nearly killed, and many others face major fines and penalties. Full disclosure, one of my companies got fined by OSHA at one point, & another was cited by TCEQ, so I know how it feels. In summary, I learned first hand how incredibly difficult it is for small companies to manage EHS compliance due to a common lack of the critical expertise, time and resources that are needed to keep up, and how this situation then ends up exposing them to these potentially catastrophic risks that can literally destroy lives and businesses. This later inspired me to found my 4th company, Berg Compliance Solutions in 2012, which is dedicated to helping other small businesses, and business owners, to manage EHS compliance and risk. Education BA, Philosophy, University of Colorado, Boulder, December, 1990. Summary of Professional Experience & Qualifications: 30+ years serving the manufacturing & industrial services sectors 30+ years of sales and marketing experience 16+ years as small business owner & entrepreneur: Founded and operated 4 small businesses since 2003. Environmental, Health & Safety Compliance & Program Related: 19 plus years of hazardous waste management including EPA, TCEQ & RCRA regulations 8 years of DOT/FMCSA compliance experience, including hazardous materials transportation 8 years of combined experience implementing and managing OSHA health and safety compliance programs for 2 high risk energy services businesses Successfully implemented and gained ISO 9001 Quality Management Certification and OHSAS 18001 (Occupational Health & Safety Advisory Service) Certification for wind energy maintenance business. Regulatory Enforcement Related Experience: Served as expert witness in criminal environmental compliance enforcement cases Superfund-CERCLA OSHA enforcement inspections, investigations and resolution in following industries: industrial services, manufacturing & construction. TCEQ enforcement inspections, investigations and resolution in manufacturing.

OSHA Enforcement Trends in Texas