“There is no worse place … to be than on Page 1, above the fold in your daily newspaper.” Gen. Michael Hayden, former director of the National Security Agency
When high profile disasters happen, incidents with a lot of media coverage, I’ve noticed that news organizations make a point of reporting how many OSHA citations the involved companies have had and how big the fines have been. There is generally no context, no effort to establish a relationship between the OSHA penalties and the incident. It’s just there, as if an OSHA citation is proof in itself that the company is evil incarnate.
What Does a Citation Mean to an Employer?
A citation once meant that the worst was over. There were still the issues of paying the fine and abating the non-compliance, but the inspector was gone, the distraction of responding to requests for paperwork and documentations were gone, and people could get back to work and get on with the business of making their workplace safer.
In many cases, employers will pay the penalty, even if they do not agree with the citation. It is an economic decision. For either a serious or an other-than-than serious violation, the maximum penalty in 2018 is $12,934. Most companies will make an informal appeal, in which case the penalty may be lowered, but won’t formally appeal the citation. The cost of legal fees far outstrip the cost of the penalty. The agency does not care for this “cost of doing business attitude” but like most enforcement agencies, they don’t like it when accused violators “lawyer up.” So, employers who are inspected and get a citation routinely make an informal appeal, and then pay the resulting penalty.
At $12,934 per violation-serious or other-than-serious-it doesn’t take much to run up a $50,000 penalty. Using an extension cord in something besides a temporary application. Forgetting to put a signature on a document. Misplacing a required report. Making an error on a drawing. These can all result in citations.
What About Repeated and Willful Violations?
Sometimes employers are cited for willful violations. These are cases where OSHA believes the employer knew what it was supposed to do, was able to do what it was supposed to do, and still made a conscious decision to NOT do what it was supposed to do. The penalty for willful violations is ten times higher than for serious violations: $129,336 per violation.
The penalty for repeated violations is the same: $129,336 per violation. The repeats are considered across the entire organization. So, after an office in New York is cited for using an extension cord for permanent incidental lighting in the lobby, with a penalty of $12,934, when the office in Los Angeles is later cited for doing the same thing, the penalty can be $129,336.
The OSHA field operations manual used to call for a 3-year lookback when determining whether a violation was a repeated violation. That is, after discovering a violation at an employer’s facility or work-site, OSHA would look back three years to determine whether that employer had ever had a similar violation anywhere in its organization. In 2016, OSHA revised the field operating manual so that the lookback was extended to five years. In February 2018, the Second Circuit Court of Appeals ruled that there was no statutory limitations on repeat violations at all.
This means that employers will probably reconsider their “cost of doing business” model of paying penalties. When every citation becomes the basis for a repeated violation in the future, with the potential for a six-figure penalty, the cost-benefit calculation suddenly shifts. I expect that OSHA is going to find itself spending a lot more time in court than it did in the past.
Who Gets Citations?
Not too long ago, a OSHA inspector proudly informed me that 1 out of 4 OSHA inspections does not result in a citation. That means that 3 out of 4 OSHA inspections do result in a citation. So, if an OSHA inspector shows up, odds are that the employer is going to be cited. It also means that if an employer has not been cited, the likely explanation is that they’ve not been inspected, not that they are in full compliance with all OSHA regulations.
OSHA has about 1,000 federal inspectors. Over half of all states, however, have opted to run their occupational safety and health program through state plans. State OSHA plans account for another 1,100 inspectors. These 2,100 federal and state OSHA inspectors cover 8 million worksites and 130 million workers; one inspector per 59,000 workers and one inspector per 3,800 worksites. With so few inspectors to go around, OSHA has developed priorities for inspections:
- Imminent danger. If OSHA knows that someone is about to be seriously hurt, they will show up to shut the worksite or facility down.
- Severe injuries and illnesses. If someone has already been seriously hurt or killed, OSHA will show up to determine which OSHA violations led to that injury, illness, or fatality.
- Worker complaints. If a worker complains to OSHA, anonymously or otherwise, OSHA may show up to investigate. OSHA tries to avoid being used as a tool in labor disputes, but it is inevitable that they are.
- If other agencies or the media call out an employer, OSHA may respond with its own investigation.
- OSHA develops programs at the national and regional level where they decide to investigate all employers in a certain industry. While a much lower priority than other, programmed inspections still account for about 40% of all OSHA inspections.
- Follow-up. After citing an employer, OSHA comes back to make sure they have abated the hazards that OSHA found.
There were 32,396 federal OSHA inspections in 2017 and another 43,551 inspections by state OSHA inspectors. All in all, about 1% of workplaces are inspected in any given year.
What Does It Mean When the Newspaper Mentions Previous Citations?
When a newspaper account of a disaster mentions that an employer has been cited by OSHA in the past for safety violations, what does it mean? It may mean exactly what is implied by the inclusion of the fact: that particular employer is evil incarnate, willing to throw worker safety on the pyre of corporate profits. Or it may mean that the employer was simply unlucky enough to be selected at random by OSHA for inspection and the inspector wasn’t in a particularly good mood.
Unless the media account goes to the trouble of showing how the previous citations are related to the current disaster, the mention of previous citations doesn’t mean anything. A reader should infer nothing other than that reporter went to the OSHA Establishment Search website to flesh out the story. It’s easy to do and doesn’t take much thought.
What About Your Workplace?
What about your facility? If something terrible happens there, what is the press going find and report? Consider checking out the OSHA web site. More importantly, though, operate safely AND in compliance with the regulations. After all, one in four inspections does not result in a citation. Finally, remember that the press doesn’t report on citations, it reports on disasters. Although avoiding a disaster is not a choice we simply make-obviously, no one chooses to be involved in a disaster—work as though everything you say or do is going to end up on the front page of the paper, above the fold.