Say It Isn’t So – Misled By OSHA?

Kegler Brown E-mployment Alert

OSHA enacted a new penalty system, which includes lowered deduction factors for assessed penalties and an increase in the time period used to cite more expensive “repeat” violations, in October 2010. One would expect that, with higher penalties and increased vulnerability to repeat citations, the corresponding rate at which employers contest citations would increase.

However, OSHA officials publicly cited the contest rate to be only 8%, which is a mere 1% higher than the contest rate was at the end of the Bush administration. OSHA concluded from this that tougher enforcement and higher penalties had not resulted in a greater rate of challenges to citations by employers. The agency maintained this story until last month.

Early this year, the Bureau of National Affairs requested that OSHA provide the data that supported their 8% contest rate figure. OSHA “declined” to reveal the numbers. However, OSHA has now begun to admit that the contest rate is really 11%, not 8%, which is nearly one third higher than what they originally said. OSHA said that the discrepancy occurred because they used a “different formula.” Oops!

It defies common sense for OSHA to say that beleaguered employers are not more prone to contest citations when more citations are issued, penalties are increased, reductions are narrowed, and the consequences of a citation are made more ominous by repeat citations and the Severe Violator Enforcement Program.

[Source: BNA Occupational Safety & Health Reporter; Vol. 42, No. 14; April 5, 2012.]