MARCH 2016 20 Questions About OSHA CLIENT UPDATE by Brad Hiles Husch Blackwell 190 Carondelet Plaza, Suite 600 St. Louis, MO 63105 314. 345.6000 firstname.lastname@example.org 1. In 50 words or less, what is OSHA? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2. Who is regulated by the OSH Act? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3. Do employees have a private right of action under the OSH Act? . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 4. What types of standards are set by the OSH Act? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 5. Do some states have OSHA programs or agencies? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 6. What OSHA standards are most commonly violated? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7. What are the types of OSHA violations and penalties? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 8. How does OSHA calculate the penalty amount? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 9. How much time does an employer have to abate violations discovered by OSHA? . . . . . . . . . . . . . 6 10. What can an employee or a union do to stop safety violations or unlawful health exposures? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 11. May employees stop working during an inspection to tell the OSHA investigator about unsafe conditions? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 12. What notice must an employer provide to OSHA in the case of a fatality? . . . . . . . . . . . . . . . . . . . . 7 13. Does the OSH Act contain whistleblower protections for employees? . . . . . . . . . . . . . . . . . . . . . . . 7 14. What are an employer’s options upon receipt of citations from OSHA? . . . . . . . . . . . . . . . . . . . . . . . 8 15. What is involved in terminating OSHA citations by paying the proposed penalty? . . . . . . . . . . . . . . 8 16. How may OSHA citations be settled? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 17. What is involved in contesting OSHA’s citations? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 18. What’s new at OSHA this year? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 19. What happened to OSHA’s proposed electronic recordkeeping rule? . . . . . . . . . . . . . . . . . . . . . . 11 20. How may I locate the OSHA office near my facility or construction site? . . . . . . . . . . . . . . . . . . . . . 11 QUESTION PAGE 1 20 QUESTIONS ABOUT OSHA 1. In 50 words or less, what is OSHA? OSHA is the acronym commonly used for the Occupational Safety and Health Administration, an agency within the U.S. Department of Labor. OSHA administers the Occupational Safety and Health Act (OSH Act), a federal statute devoted to the protection of employee health and safety in the workplace. 2. Who is regulated by the OSH Act? Employers, 99 percent of the time. Only a few OSHA regulations govern non-employers. (Examples are 29 C.F.R. § 1910.1001 and 1926.1101, which obligate building owners to convey information about asbestos to occupants and retain asbestos information under certain circumstances.) To be covered by the OSH Act, the employer need have only one employee. 29 C.F.R. 1975.4(a). 3. Do employees have a private right of action under the OSH Act? Surprisingly, no. The Secretary of Labor is authorized to penalize employers that violate the OSH Act. Employees may submit anonymous complaints to OSHA, however, and the agency is obligated to investigate those complaints. (This is often done informally by advising the employer of the complaint and affording the employer seven to 10 days to submit a written response.) In addition, employees may file complaints alleging retaliation for their exercise of a protected right (such as complaining about unsafe conditions). Such complaints are known as whistleblower complaints. OSHA has dedicated inspectors to investigate whistleblower complaints. 4. What types of standards are set by the OSH Act? The OSH Act actually does not have health and safety standards. OSHA, however, has promulgated thousands of standards through its power under the Act. OSHA regulations address virtually every conceivable safety hazard and health hazard in the workplace. The standards applicable to industrial and commercial operations may be found at 29 C.F.R. 1910.01 through .1450. Standards applicable to the construction industry are at 29 C.F.R. 1926.1 through 1926.1441. Standards governing recordkeeping and reporting of occupational injuries and illnesses applicable to all sectors are at 29 C.F.R. 1904. 2 6. Which OSHA standards are most commonly violated? According to statistics published by OSHA, more citations were written in the general industry sector for violations of the Hazard Communication Standard, 29 C.F.R. 1910.1200, than any other standard. (This is based on OSHA’s latest published data, for the fiscal year ending in October 2015.) In fact, the Hazard Communication Standard has been the first or second most violated standard for nearly two decades. Rounding out the “top five” for FY2015 (in general industry) were No. 2, Respiratory Protection, 29 C.F.R. 1910.0134; No. 3, Lockout/ Tagout, 29 C.F.R. 1910.0147; No. 4, Powered Industrial Trucks (forklifts), 29 C.F.R. 1910.178; and No. 5, Electrical, Wiring Methods, Components & Equipment, 29 C.F.R. 1910.305. In the construction industry, the Fall Protection Standard, 29 C.F.R. 1926.501, was cited the most often in FY2015. No. 2 was the Scaffolding Standard, 29 C.F.R. 1926.451, and No. 3 was the Ladders Standard, 29 C.F.R. 1926.1053. 7. What are the types of OSHA violations and penalties? OSHA recognizes five violations: Serious, Other-Than-Serious, Willful, Repeat and Failure to Abate. Those violations are discussed briefly below and will be analyzed further in the examination of penalty calculations under question No. 8. Serious Violations: Serious violations are found when there is a substantial probability that death or serious physical harm could result, and when the employer knew, or should have known, of the hazard. The typical range of proposed penalties for serious violations is $1,500 to $5,000. However, the Area Director may propose a penalty of up to $7,000 when he or she thinks it is warranted. Congress has authorized OSHA to increase the maximum penalty for a Serious citation to $12,744. OSHA is expected to increase the cap in August 2016. 20 QUESTIONS ABOUT OSHA (Cont’d.) 5. Do some states have OSHA programs or agencies? Yes. Twenty-one states have workplace safety and health programs approved by OSHA. To be approved, a state must satisfy OSHA that it has adopted regulations “at least as effective as” the federal program. OSHA provides 50 percent of the funding for approved state programs. The standards, citations, penalties and appeals systems in the state programs are remarkably consistent with federal OSHA. Some states incorporate by reference OSHA’s standards into their state regulations or adopt regulations that are substantially the same. However, states are free to adopt more stringent standards, so you should consult the applicable state standards governing your facility. The states with approved programs are: Alaska Maryland South Carolina Arizona Michigan Tennessee California Minnesota Utah Hawaii Nevada Vermont Indiana New Mexico Virginia Iowa North Carolina Washington Kentucky Oregon Wyoming 3 20 QUESTIONS ABOUT OSHA (Cont’d.) Other-Than-Serious Violations: These violations have a low probability of injury or illness but still require that conditions or practices be corrected at the employer’s facility. In some instances, no penalty is warranted for an Other-Than-Serious violation. However, a “base” penalty of $1,000 may be issued if there is a greater probability of injury or illness. Furthermore, OSHA’s penalty policy allows the Area Director to impose a penalty of up to $7,000 for this type of violation. A proposed penalty in excess of $1,000 would be unusual, though, for an Other-than-Serious violation. With authority from Congress, OSHA is expected to increase the maximum penalty for “Other” citations to $12,744 in August 2016. Willful Violations: A Willful violation is committed with intentional disregard of, or plain indifference to, the requirements of the OSH Act and its regulations. The proposed penalty must be between $5,000 and $70,000. Essentially, OSHA calculates this penalty by taking the underlying “serious” violation, adjusting it for size and history (discussed below) and multiplying it by a factor of seven. The OSHA Area Director has discretion to adjust the multiplier upward or downward. Currently, a Willful penalty may not exceed $70,000. In August 2016, however, OSHA is likely to increase the maximum to $127,438. Repeat Violations: As the name suggests, a Repeat violation occurs when a substantially similar violation is found within five years of an initial violation of any standard, regulation, rule or order. The Area Director may use a multiplier from two to 10. For small employers (250 employees or fewer), a multiplier of two is used for the first instance of a Repeat violation. For the second Repeat violation, a multiplier of five is used. However, the Area Director has discretion to use a multiplication factor of up to 10 where necessary to deter improper conduct by a small employer. For large employers, a multiplier of five is used for the first instance of a Repeat violation. In the case of a second Repeat violation, a multiplier of 10 may be used. At times OSHA issues Repeat violations for Other-Than-Serious matters. If a penalty was not assessed on the initial violation, a penalty of $200 will be assessed for the first repetition, $500 for the second repeat and $1,000 for the third repeat. In issuing Repeat citations, federal OSHA is not supposed to take into account underlying citations issued by a state OSHA program. In some instances, however, the author has found that Area Directors have attempted to use an underlying state citation as the basis for a Repeat citation. (The author has succeeded in convincing those Area Directors to withdraw the Repeat classification.) Importantly, OSHA may issue Repeat citations when the underlying citation was issued to a different facility of the same employer. In fact, the agency has issued Repeat citations when the violations occurred at subsidiaries of the same parent corporation, even in instances when the subsidiaries operated different businesses. Failure to Abate Violations: If an employer fails to correct a violation within the abatement period prescribed by OSHA, a daily penalty may be assessed equal to the amount of the initial penalty—up to $7,000 per day. (This amount is likely to increase to $12,744 in August 2016.) The Failure to Abate penalty may be assessed for up to 30 days. The Regional Administrator may reduce the penalty based on the employer’s size. There should be little reason for an employer to risk receiving a Failure to Abate violation. OSHA Area Offices commonly allow abatement periods to be extended if an employer provides sufficient justification for an extension (e.g., unavailability of repair parts, lack of financial resources, inadequate time to undertake an abatement project). Furthermore, when an employer files a Notice of Contest (discussed in the answer to No. 17), abatement periods are stayed. 4 20 QUESTIONS ABOUT OSHA (Cont’d.) 8. How does OSHA calculate the penalty amount? OSHA penalty calculations are based primarily on two factors: ■ The severity of the injury or illness that could result from the alleged violation ■ The probability that an injury or illness could occur as a result of the alleged violation. OSHA utilizes “downward” adjustment factors as well. Those will be discussed below. Here is an examination of the penalty matrix utilized by OSHA for Serious Violations. To understand how OSHA officials calculate their penalties, it is important to understand the categories set forth above. The OSHA Field Operations Manual provides the following definitions: High Severity: Likely death from injury or illness; injuries involving permanent disability or chronic, irreversible illness. Medium Severity: Likely injuries or temporary, reversible illnesses resulting in hospitalization or a variable but limited period of disability. Low Severity: Likely injuries or temporary, reversible illnesses not resulting in hospitalization and requiring only minor supportive treatment. Minimal Severity: [Other-Than-Serious Violations only] Although such violations reflect conditions that have a direct and immediate relationship to the safety and health of employees, the injury or illness most likely to result would probably not cause death or serious physical harm. Greater Probability: Results when the likelihood that an injury or illness will occur is judged to be relatively high. Lesser Probability: Results when the likelihood that an injury or illness will occur is judged to be relatively low. Obviously, the placement of a violation into one or more of the above categories may be subject to considerable debate. Such debate is a critical component of settlement negotiations with OSHA Area Office officials. An employer’s representative should have a strong grasp of all facts relevant to a citation in order to argue that the severity and probability are lower than determined by OSHA’s Area Directors. Read more... SEVERITY PROBABILITY GRAVITY-BASED PENALTY High Greater $5,000 Medium Greater $3,500 Low Greater $2,500 High Lesser $2,500 Medium Lesser $2,000 Low Lesser $1,500 5 20 QUESTIONS ABOUT OSHA (Cont’d.) Combined or “Grouped” Violations Area Directors have discretion to combine or “group” certain violations. This is commonly done when the violations arise out of the same set of circumstances. Normally, combined violations are considered as one violation for penalty purposes. When that is the case, the severity assigned to the group violation must be that of the most serious reasonably predictable injury or illness that could result from any single violation in the group. The same is true of the probability assessment. The “most probable” violation must be considered in calculating the penalty. Downward Adjustment Factors The good news for penalized employers is that OSHA may reduce a penalty for an employer’s “good faith,” “size of business” and “history of previous violations.” Other reductions are available as well, although an employer may have to ask for them during settlement negotiations. Here is a closer look at OSHA’s penalty adjustment factors. ■ Good Faith A penalty reduction of up to 25 percent is permitted where an employer shows “good faith.” However, this reduction is not available in the case of Willful violations. Read more... ■ Size of Business A maximum penalty reduction of 60 percent may be available based on the size of the employer’s business. The size is measured based on the maximum number of employees at all of the employer’s workplaces at any one time during the previous 12 months. The rates of reduction are as follows: Where a small business (250 employees or fewer) has one or more Serious violations of high gravity, or several Serious violations of moderate gravity, the OSHA Area Director may conclude that the employer lacks concern for its employees. Accordingly, the Area Director may use discretion in allowing only a partial reduction for the size of the employer’s business. ■ History of Previous Violations A reduction of 10 percent may be given to employers who have not been cited by OSHA for any serious, willful or repeated violations in the past five years. ■ Ability to Pay An employer’s ability to pay can be used as a means of reducing its penalty. However, OSHA rarely takes the employer’s financial condition into account when initially calculating penalties. Rather, the employer must bring this matter to OSHA’s attention during settlement negotiations. A more detailed discussion of this penalty reduction measure is set out in the answer to question No.16 under the topic “Inability to Pay.” EMPLOYEES PERCENT REDUCTION 1-25 60 26-100 40 101-250 20 251 or more None 6 9. How much time does an employer have to abate violations discovered by OSHA? The length of time varies widely. Normally, the OSHA inspector will set an abatement deadline on the face of the citation. Meeting (or extending) that deadline is important – for safety purposes and penalty purposes. (An employer may be penalized up to $7,000 for each day a violative condition goes uncorrected beyond the abatement date.) If an employer contests one or more of the violations (discussed in No.17 below), the period for abatement is stayed until the entry of a final order by the Occupational Safety and Health Review Commission. Such an order may not come for more than a year. The abatement date may also be “stayed” if the employer contests the date itself. Read more... 10. What can an employee or a union do to stop safety violations or unlawful health exposures? Although the OSH Act does not create a private right of action, employees and unions have rights nevertheless. Either may lodge complaints with an OSHA Area Office. Those complaints may be filed anonymously. (OSHA always protects the identity of anonymous complainants.) OSHA then forwards the complaint (often paraphrasing it for clarity’s sake and to further hide a complainant’s identity) to the employer via facsimile. The employer is allowed seven to 10 days to respond to the complaint or face an inspection. OSHA always shares the response with the complaining party. Once an employer submits its response to a private party’s complaint, the matter may go in a number of directions. Read more... Unions have the right to participate in citation actions but it is very limited. During settlement negotiations, a union may object to abatement deadlines and extensions. That right may, technically, be available during contested hearings. As a practical matter, however, objections to abatement dates are usually meaningless in contested cases, because the automatic stay of the abatement date may last for one year while the case is pending. In all but the most unusual circumstances, the employer has abated the violated conditions by then. A union’s standing to contest abatement dates is most effective during settlement negotiations between OSHA’s Area Director and the employer. Unions also have the right to designate a representative to accompany an OSHA inspector in the workplace. That individual is free to point out conditions he or she considers dangerous, or he/she may say nothing at all. Normally, OSHA inspectors observe conditions on their own and ask the union’s (and employer’s) representative for information such as how work is performed in the area, and what safeguards are followed in that work. Finally, unions have the right to be notified of certain inspections. When an employer is notified in advance of an OSHA inspection, the union or other authorized employee representative must be told in advance of the inspection. Failure to do so is considered by OSHA as an Other-Than-Serious citation, carrying an unadjusted penalty of $2,000. While OSHA may not provide advance notice of its initial inspection visit, notice is almost always provided of subsequent visits. Employers should be on guard to notify authorized employee representatives rather than be subject to penalty. (See 29 CFR 1903.6) 20 QUESTIONS ABOUT OSHA (Cont’d.) 7 20 QUESTIONS ABOUT OSHA (Cont’d.) 11. May employees stop working during an inspection to tell the OSHA investigator about unsafe conditions? Nothing in the OSH Act prohibits such action, but an employer’s work rules could certainly be a barrier. Here is a much more likely scenario: The inspector requests permission to question a certain employee who may have information about an industrial accident or a potentially unsafe working condition. The employer may deny the request because the employee is actively engaged in work activity that needs to continue for a certain duration. In that case, the interview may occur during a break or at the end of the shift. Additionally, the inspector is free to call that employee during non-work hours. If an employer grants an interview request, the employee has a choice. He or she may request a witness be present, conduct the interview alone or decline to be interviewed. 12. What notice must an employer provide to OSHA in the case of a fatality or certain types of injuries? If an accident occurs that results in a fatality, an employer is required to report orally or in writing to the nearest OSHA Area Office within eight hours. The same rule applies in the case of accidents resulting in the hospitalization of three or more employees (29 C.F.R. 1904.8). Failure to do so is considered an Other-Than-Serious violation, carrying an unadjusted penalty of up to $5,000. If the Area Director determines that a stronger penalty is required to deter such conduct, he may increase the penalty to $7,000. Employers must also notify their nearest OSHA Area Office within 24 hours in the event of any of the following: the hospitalization of one employee, an amputation (this could be as small as a fingertip) or an eye injury. Penalties for late notification typically range between $1,000 and $3,000. 13. Does the OSH Act contain whistleblower protections for employees? Yes. The OSH Act prohibits retaliation against employees who exercise their rights under the Act. 29 U.S.C. § 660(c). Section 11(c)(1) provides that: No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act. An employee does not have a private right of action under §11(c), 29 U.S.C. § 660(c), of the OSH Act. Taylor v. Brighton Corp., 616 F.2d 256 (6th Cir. 1980). The OSH Act requires an aggrieved employee to file a complaint with the Secretary of Labor alleging discrimination. The Secretary then has the duty to investigate the allegations. If the Secretary concludes that the Act has been violated, he/she must institute an action in an appropriate United States District Court. Read more... 8 20 QUESTIONS ABOUT OSHA (Cont’d.) 14. What are an employer’s options upon receipt of citations from OSHA? Once an employer receives citations and proposed penalties, the time to react is extremely limited. Within 15 working days after receipt of the penalties (which normally will be transmitted by certified mail/return receipt requested), an employer must pay the full amount of the proposed penalty, enter into an informal settlement agreement with OSHA and pay a negotiated penalty amount, or file a Notice of Contest. 15. What is involved in terminating OSHA citations by paying the proposed penalty? It is a simple matter, of course, for an employer to concede the violations alleged by OSHA and pay the full proposed penalty amount. The OSHA Area Director may even extend the payment deadline or allow partial payments to be made over time. Some Area Directors even offer a 30% penalty discount for a settlement without an Informal Settlement Conference. But there are consequences to immediately paying OSHA’s penalties, even with a discount. Such payment will result in an admission of liability by an employer. That is, OSHA’s alleged citations will be considered accurate and will become a final order. Those citations may then be utilized in the future to support Repeat citations. Furthermore, the citations may be used later to support higher penalties based on willfulness. In addition, for other citations brought within five years, the “admitted” citations may deny the employer a penalty reduction based on its “history” of prior violations. (Of course, to preserve a “history” reduction, the employer would have to completely eliminate its present citations through settlement negotiations or litigation.) 20 QUESTIONS ABOUT OSHA (Cont’d.) 16. How may OSHA citations be settled? OSHA’s Area Directors are authorized to enter into settlement negotiations that revise citations and penalties. Such negotiations must be concluded within 15 working days of an employer’s receipt of the citations, however. In the author’s experience, OSHA Area Directors are quite willing to engage in informal settlement negotiations. Such talks are strongly encouraged, especially as a means of avoiding prolonged legal disputes. Negotiations with the OSHA Area Director are normally done rapidly. Due to the limited period allowed for negotiations, the Area Director or his representative normally concludes talks in one or two meetings. Typically, such meetings last one to four hours and can be done by telephone. These meetings provide an excellent opportunity for an employer to reduce penalty amounts, modify (reduce) citation classifications or even vacate/withdraw citations. Vacating/Withdrawing Citations Convincing OSHA’s Area Director to withdraw citations is not a simple matter. The employer must bring compelling evidence to the informal settlement conference to convince the Area Director, the inspector and possibly the inspector’s supervisor that the facts supposedly observed at the workplace are not accurate. 9 20 QUESTIONS ABOUT OSHA (Cont’d.) Reclassifying Citations A solution more commonly achieved during an informal settlement conference is the “reclassification” of citation items. This is an excellent means of reducing penalty amounts. More importantly, it can be an important strategy to avoid higher penalties in the future in the event the agency issues Repeat citations. Employers should strongly consider attempting to reclassify their Serious citations to “other.” Since the agency may consider citations for up to five years in determining if future conditions warrant a Repeat classification, the negotiation of citation classifications is often critically important. Grouping Citations Another settlement strategy for informal settlement conference is the “grouping” of citations. This is an excellent way to reduce penalty amounts, because OSHA representatives typically identify multiple violations based on one set of facts. The employer may convince OSHA to vacate one or more of the alleged violations, or at least assert one “grouped” citation for the same “event.” Reducing the Penalty Amount Within the Matrix Often, the most fertile area for reducing an OSHA penalty is to convince OSHA’s representatives that they have exaggerated the “severity” and “probability” factors when calculating the employer’s “unadjusted” penalty. The examples of this strategy are limitless, because such arguments depend on the facts and circumstances peculiar to each alleged violation. Read more... Implementation of a Safety and Health Management Program OSHA may reduce penalties when an employer has instituted a Safety and Health Management Program. Where the program is deemed to be defective, a 25 percent penalty reduction will normally be given. Even ineffective programs may quality for a 15 percent penalty reduction. This is part of the “good faith” penalty reduction policy honored by OSHA. These programs are not simple “paperwork” projects, though. Before offering to implement such a program during Informal Settlement Negotiations, an employer should carefully review the items OSHA considers necessary for implementation of an “effective” program. The author typically advises against implementing the type of Safety and Health Management Program OSHA espouses. Inability to Pay Another way to reduce a proposed penalty is to provide proof that the business is unable to pay the full amount, even if payments are spread over time. OSHA’s Area Director has discretion to determine when a penalty should be reduced based on an employer’s financial condition. There are no guidelines set forth in the OSH Act, OSHA’s regulations or the OSHA penalty policy governing the inability to pay issue. OSHA Area Directors usually call for a company’s profit and loss statements (and sometimes its balance sheets) for at least the two years prior to the citation. Furthermore, where the employer is a closely held business, Area Directors sometimes examine the salary and other payments (if any) from the corporation to those officers or employees who are also owners. OSHA penalties are designed to provide a deterrent effect, not to punish employers or raise revenue for the government. When an employer has experienced a net loss in income in the two years or so prior to an inspection, deterrence may be achieved by smaller penalties. 10 20 QUESTIONS ABOUT OSHA (Cont’d.) 17. What is involved in contesting OSHA’s citations? An employer may contest OSHA’s citations, as well as the proposed penalty and/or the proposed abatement dates set out in the citations. A Notice of Contest must be filed within 15 working days after receipt of the citation. As discussed under question 10, employees or their representative have the right to contest OSHA abatement dates. (Employees may not contest citations or proposed penalties.) Once an employer files its Notice of Contest, the Area Director forwards the notice and his case file to the Regional Solicitor of Labor for handling. The Solicitor of Labor is the legal representative of the U.S. Department of Labor. Within each regional office is a group of attorneys experienced in the litigation of OSHA penalty cases. OSHA penalty cases are tried before an administrative law judge (ALJ) of the U.S. Department of Labor. Most often, the ALJ will convene a hearing in a city near the employer’s business. Once the ALJ renders a determination, the losing party may appeal to the Occupational Safety & Health Review Commission in Washington, D.C. Determinations of that commission may then be appealed to the local U.S. Court of Appeals. In the meantime, though, an employer is free to negotiate with OSHA through the Regional Solicitor of Labor. In the author’s experience, settlement negotiations may be fruitful with the Solicitor’s office, even after efforts have failed with the Area Director. In fact, when faced with prospects for proving his or her case before an ALJ, the Solicitor of Labor’s trial attorney sometimes views the case differently than the Area Director. Since OSHA penalties are commonly less than $50,000, the cost of litigation must always be weighed against the benefits to be achieved. Employers are usually well served by continuing a settlement dialogue up to the point of a hearing. 18. What’s new at OSHA this year? On or about August 1, 2016, OSHA is likely to increase its civil penalties by as much as 82 percent. This will be the first penalty increase in 26 years. In subsequent years, OSHA will have the power to increase penalties annually, based on a formula tied to the Consumer Price Index. On December 24, 2015, the United States Department of Justice announced an initiative known as the “Worker Endangerment Initiative,” which will involve criminal investigations and, where warranted, enforcement, against companies and individuals for certain violations of environmental and health and safety laws. From a safety standpoint, the focus of this initiative will be on employers, executives, managers and supervisors who fail to exercise due care and ensure that work was performed safely. Cross training of EPA and OSHA inspectors will occur in 2016. The new initiative is likely to increase the number and frequency of criminal investigations arising out of workplace fatalities, instances of multiple injuries, and cases involving serious injuries. (Previously, the Department of Justice mostly conducted criminal investigations based on referrals from OSHA following a fatality and issuance of one or more Willful citations.) On March 25, 2016, OSHA published its long-awaited rule on respirable crystalline silica. Under the new standard, employers will be expected to cut worker exposures in half in general industry, including hydraulic fracturing, and by five times in the construction field. Absent an industry challenge (which is likely), the rule will be effective in 90 days with compliance due on June 23, 2017, for the construction industry and June 23, 2018, for general industry and the maritime industry. 11 20 QUESTIONS ABOUT OSHA (Cont’d.) 19. What happened to OSHA’s proposed electronic recordkeeping rule? In November 2013, OSHA published a notice of a proposed rule-making called “Improve Tracking of Workplace Injuries and Illnesses.” The rule would require employers of 250 or more people to electronically report injury and illness recordkeeping data to OSHA on a quarterly basis. The information would be location- and incident-specific. In addition, the agency proposed to create a searchable website to make such data publicly available. In August 2014, OSHA issued a supplemental notice to include provisions that would be even more burdensome to employers. The new rule still has not been finalized. On October 5, 2015, OSHA submitted the rule to the Office of Information and Regulatory Affairs (OIRA). This is a likely indication that OSHA is preparing to file a final rule once OIRA approves the proposed rule. 20. How may I locate the OSHA office near my facility or construction site? OSHA is divided into 10 regions. Each region has a Regional Administrator and multiple “area offices.” For example, Region VII, which covers Iowa, Kansas, Missouri and Nebraska, is headquartered in Kansas City, Missouri, and has Area Offices in Des Moines, Iowa; Kansas City, Missouri; Omaha, Nebraska; St. Louis, Missouri; and Wichita, Kansas. The agency has published a user-friendly interactive map with links to its Regional and Area Offices broken down by states and US territories. The map also contains links to the offices of the 21 State Plan states. Here is the link: osha.gov/html/RAmap.html.