OSHA’s New Enforcement Attitude

Kegler Brown Labor + Employee Relations Newsletter

We all have heard about plans for a bigger, tougher, and more active OSHA - more compliance officers, more inspections, more citations and higher penalties. A recent ruling by the Occupational Safety and Health Review Commission may be the first step in this new era. In this decision, the Review Commission abruptly overruled its own precedent to the contrary, and ruled that OSHA can issue citations and penalties on a per-employee basis. Many interpret this as a clear indication of the aggressive, perhaps punitive, stance that the agency will adopt.

The case involved an employer who had a spotty track record of OSHA citations over a number of years. In this particular case, OSHA inspected a job site and issued citations when employees were exposed to lead while removing lead-based paint from a structure. Seventy-one employees were working at the site. Instead of issuing one citation for failure to train and lead exposure, as it would have done under its prior policy, OSHA more aggressively issued seventy one willful citations - one for each employee that OSHA believed had been exposed to lead above the permissible level and who had not received the required training. Although the Review Commission did not uphold citations for all of the employees, it did approve of citations being issued on a per-employee basis. [Secretary of Labor v. Smalis Painting Co., OSHRC Docket No. 94 1979 (2009)].

The effect of the ruling is that a company’s failure to meet a broad standard, like a training requirement, can result in multiple citations, one for each affected employee, and dramatically increased penalties.