By Bruce Rolfsen
The average proposed penalty for a serious workplace safety violation more than doubled in fiscal 2011, but the fines are still too low, says Assistant Secretary of Labor for Occupational Safety and Health David Michaels.
The average serious violation penalty for 2011 was $2,132, up 102 percent from the 2010 average of $1,053. Under the Bush administration in 2008, the average was $998. The maximum penalty for a serious violation is $7,000.
The increase resulted from OSHA instituting a new penalty structure on Oct. 1, 2010 (40 OSHR 843, 10/14/10). The changes reduced the size of penalty cuts employers were eligible for because of the number of workers, safety records, and other factors.
Even with the increase, Michaels believes penalties are small.
“It's still quite low,” Michaels told a Dec. 15 gathering of OSHA's Advisory Committee on Construction Safety and Health. “We give out citations associated with fatalities for a few thousand dollars.”
Michaels defended raising the fines. “We know penalties have an impact. We have to maximize the impact of our penalties because we're trying to not just focus on the employer where we found the [violation], but the whole industry. They are still far lower than most regulatory agencies' [penalties].”
Federal compliance officers conducted 40,648 inspections, down from 40,993 in 2010, but above the 38,667 inspections in fiscal 2008, the last full year of the Bush Administration.
Michaels said the decrease reflected a change in inspection priorities.
“Some of our inspections are taking longer,” Michaels explained. “Health inspections take longer than safety inspections, and we're doing more health inspections. Inspections that involve recordkeeping also take great deal longer.”
Construction inspections continued to account for more than half—56 percent—of OSHA's visits in 2011. For 2010, the figure was 60 percent.
“Part of that is a reflection of some of our emphasis programs in other areas as well as complaints in other areas,” Michaels said about the fewer construction checks.
The higher fines also meant there were more “significant” cases—investigations producing proposed fines totaling at least $100,000. In 2011, there were 215 significant cases, up 31 percent from the 164 in 2010.
The boost in significant cases did not mean there were significantly more risks for workers.
“It doesn't represent more enforcement or more hazards, but, in fact, the different way we calculate our penalties,” Michaels said.
The number of “egregious” cases—situations so hazardous that investigators penalize each suspected infraction instead of grouping them together—numbered 14, six fewer than the 2010 total of 20, but more than the five cases cited in 2008.
One statistic that did not change, despite the increased penalties, was how often employers decided to appeal citations. The contest rate remained at 8 percent, the same as in 2010, Michaels said. During the last two years of the Bush administration the rate was 7 percent.