Additional Blogs of Interest

OSHA and MSHA Raise Penalty Fees

Posted by Whitcomb, Selinsky, PC on Mar 10, 2020 11:58:06 PM

In 2015, Congress passed the Federal Civil Penalties Inflation Adjustment Act. It was passed to improve the effectiveness of civil penalties and to maintain their deterrent effect. The Act requires agencies to adjust their level of monetary penalties and to make subsequent annual adjustments for inflation no later than January 15th of each year.

The Labor Department issued an annual inflation adjustment of civil penalties in 2019. It calculates the annual adjustment based on the Consumer Price Index for all Urban Consumers (CPI-U). The most recent adjustment is based on the percent change between the October 2019 and October 2018 CPI-U.

The Federal Civil Penalties Inflation Adjustment Act provides a cost-of-living formula for the adjustment of civil penalties. The Act increases penalty levels to those assessed after the effective date of the increase. The final rule became effective January 15, 2020, increasing penalty fees. The changes to the Mine Safety and Health Administration (MSHA) and the Occupational Safety and Health Administration (OSHA) penalties take effect immediately and apply to penalties assessed after January 15, 2020.

Penalty Assessment Formula

Penalties for health and safety violations are assessed by MSHA’s Office of Assessments’ formula that considers five factors: the history of previous violations, size of the business, negligence of the operator, gravity of the violation, and the operator’s good faith attempt to correct the violation promptly (if any). The inspector determines these findings from inspections, MSHA records, and information supplied by the operator. The effect of the penalty on the operator’s ability to remain in business is also considered when an operator submits information to the inspector.

OSHA Penalties

OSHA raised its civil penalties by about 1.8% at the beginning of this year. Some of the changes to the OSHA penalties include the following: willful violations where an employer knowingly failed to comply with OSH standards or demonstrated plain indifference for employee safety now has an increased penalty from $49,472 to 49,639 and the maximum penalty increases from $132,598 to $134,937. Violations that are repeated or substantially similar to previous violations have penalties that increase from $132,598 to $134,937.

MSHA Penalties

MSHA violations are the most serious and can impose the greatest fees. The most severe MSHA flagrant violation will now cost $266,275. Employers that fail to abate a citation will incur a maximum penalty of $7,867 per day. Failure to report a fatality or serious injury within 15 minutes will incur a minimum penalty of $6,052.

Contesting Health and Safety Citations

There are multiple options employers can take if OSHA or MSHA cites the company for a violation. If you believe you unfairly received a citation or have evidence to defend your business’ health and safety standards, it may be beneficial to contest the citation. You can contest a citation if you do not believe that your company violated a health and safety order, you believe the violation was improperly classified, you do not believe that the Government gave your company enough time to complete the abatement, or if you believe the assessed penalty was unreasonable.

OSHA Citations must be addressed as soon as possible. Requests to contest OSHA citations must be made within 15 calendar days. Mine operators have 30 days to file a notice of contest with the Secretary of Labor or can wait until a penalty is assessed. After receiving the penalty, the operator has 30 days to file a contest and request a hearing before an administrative law judge of the Federal Mine Safety and Health Review Commission.

There are other factors employers should consider beside the monetary expense of citations. It is also important to consider the consequences of receiving a citation. Workplace safety violations that lead to repeat violations are likely to receive greater fines. Employers are cited for ‘repeated’ violations if they receive ‘substantially similar’ violations anywhere in the nation within the past three years. Employers can also develop poor reputations in the labor community if it consistently receives citations or has employees who continue to get hurt on the job.

Health and Safety Violation Consequences

OSHA and MSHA violations will result in larger penalties for employers. It is important that employers take the necessary steps to improve the health and safety of their most important resources, their employees. A healthy workforce makes employees more likely to work at companies longer. This helps employers save money by not having to train replacements and it limits the penalties that their company may incur from OSHA and MSHA. It is best to be proactive and solve problems and prevent accidents before they occur. If you have been cited for an OSHA or MSHA violation or you anticipate that you will be cited, please contact the experts in workplace safety at Whitcomb Selinsky PC. Consultations are free and you can reach the firm at 303-538-1958.
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Tags: Workplace safety

Construction Company Cited for P.P.E. Violations

Posted by Whitcomb, Selinsky, PC on Nov 15, 2019 5:00:00 AM
R.K. Wallace Construction Inc. was cited for two workplace safety violations by the Occupational Safety Health Administration (OSHA) in early 2018. Though it is preferable not to receive citations from government agencies, citations may be a tool to bring attention to unsafe work practices that may harm their workers. OSHA imposes greater penalties for repeated violations when workplace safety hazards are not addressed. The case is an example of how viewing OSHA as a partner to worker safety and productivity can benefit employers.
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Tags: OSHA, Workplace safety

EAJA Allows Winning Parties to Recoup Attorney Fees

Posted by Whitcomb, Selinsky, PC on Nov 12, 2019 5:00:00 AM

The Equal Access to Justice Act (EAJA) was permanently enacted in 1985 to deter government overreach and wrongdoing. It allows individuals and entities to be awarded attorney fees and expenses when they are prevailing parties to administrative proceedings before the Occupational Safety and Health Administration's (OSHA) Review Commission. These proceedings are typically contests to citations, notifications, penalties, or abatement periods by employers. To be eligible for attorney fees and expenses under EAJA, parties are required to apply, “no later than thirty days after the period for seeking appellate review expires.” Contesting parties may also be corporations with a net worth less than $7 million that employ no more than 500 employees.

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Tags: OSHA, Workplace safety

Communication is Key

Posted by Whitcomb, Selinsky, PC on Nov 7, 2019 5:00:00 AM

Lack of communication between colleagues can be costly and even deadly.  It decreases efficiency, productivity, and most of all leads to greater incidence of injuries in the workplace. While communication of hazards can be easily taken for granted, it is the most important part of workplace safety. This is especially true in the workplace where employees often encounter dangers. This is what unfortunately occurred in the case.

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Tags: Workplace safety

Standard Operating Procedures Are Key To Safety

Posted by Whitcomb, Selinsky, PC on Nov 5, 2019 5:00:00 AM

Employers bear the burden of proving they are not responsible when their employees violate Occupational Safetyand Health Administration (OSHA) standards. Employers are required to establish work rules and procedures to prevent violations, communicate the rules effectively to their employees, take steps to discover violations, and enforce the rules when violations are discovered. These requirements enforced by the Occupational Safety Health Review Commission (OSHRC) are crucial to protect both the liability of employers as well as the safety of their employees.

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Tags: OSHA, Workplace safety

The Importance of Safety-Specific Training at Work

Posted by Whitcomb, Selinsky, PC on Nov 1, 2019 5:00:00 AM

A case involving the electrocution of a general maintenance mechanic three years ago was resolved in July of this year. In June 2016, a general maintenance mechanic for Jersey City Medical Center (JCMC) died from electric shock and fall from a ladder where he hit his head. After an investigation conducted by the Occupational Safety and Health Administration (OSHA), citations were issued to JCMC alleging violations of OSHA’s electrical safety and training standards with a penalty of just under $175,000. JCMC denied it was at fault and filed a notice of contest. The contest by JCMC brought the case before the Occupational Safety Health Review Commission (OSHRC or Commission) to resolve the matter.

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Tags: Workplace safety

Effective Legal Representation May Save Time and Money

Posted by Whitcomb, Selinsky, PC on Oct 30, 2019 5:00:00 AM

It is difficult to maneuver the roadways of legal defense without any help. Most attorneys would find it difficult to lay the foundation of a new building without any training. Similarly, it is difficult for persons not skilled in legal matters to respond to Discovery Requests, Interrogatories, and complex Motions. Attorneys and construction workers use different skills, knowledge, and even terminology on a day to day basis. It is challenging for people who are not trained in the law to defend themselves properly, and this task is best handled by those trained in this profession.

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Tags: Workplace safety

Electrical Company Suffers On-The-Job Death

Posted by Whitcomb, Selinsky, PC on Oct 11, 2019 5:00:00 AM

The case, Secretary of Labor v. Echo Powerline, LLC is an unfortunate example of how employees can still get hurt when safety measures are taken into consideration. Echo Powerline, LLC was tasked with restoring downed power lines and poles that had fallen during an ice storm in Beaver, Oklahoma. While a crew supervised by Brad Brouilette had taken several precautionary measures to avert injury to his crew members, the unthinkable still occurred and two employees were electrocuted.

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Tags: Workplace safety

Defending Your Case Of Alleged OSHA Violations

Posted by Whitcomb, Selinsky, PC on Oct 10, 2019 5:00:00 AM

Bergelectric Corp. was hired to install the electrical system for the San Manuel Casino's renovation in California when an employee was injured on the job. On April 29, 2017, one of the company’s employees fell 24 feet while installing a conduit above the ceiling, causing him to suffer broken ribs and a spinal fracture. The case was referred to the federal Occupational Safety and Health  Review Commission (OSHRC), created to review possible violations of the Occupational Safety and Heath Act of 1970 (OSHA) , because the incident took place in a tribal casino located on a reservation under federal jurisdiction. The investigation conducted by a Compliance Safety and Health Officer resulted in the recommendation of several violations targeted at Bergelectric Corp's fall protection program and improper documentation of the fall and injuries.

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Tags: OSHA, Workplace safety

Unions Challenge Reduced Mining Regulations

Posted by Tim Turner on Aug 18, 2019 3:05:55 PM

In 2009 Massey Energy had been issued 515 citations by the Mine Safety and Health Administration (MSHA) for safety violations at its Upper Big Branch coal mine located in West Virginia that was owned and operated by Massey Energy.

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Tags: Workplace safety

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