Consider this not-so-hypothetical example. An employer in California receives a citation from Cal/OSHA for a relatively minor safety violation involving no employee injuries. Maybe the citation was for inadequate training on a particular workplace hazard. The citation carries with it a penalty of $500. The employer could appeal the citation, and spend perhaps thousands of dollars to challenge the citation through a hearing before an Administrative Law Judge; or, it could write a check for $500, agree to fix the violation, and be done with it. In this light, the former response may seem extravagant, while the latter response could be seen as a rational business decision.
Now, fast forward two years from the date that the employer spent $500 to make that previous violation go away. The employer abated the prior violation by adequately training its employees shortly after paying the penalty. A newly-hired employee, however, failed to receive training on the same workplace hazard and suffered a serious injury when exposed to the hazard. After its investigation, the Division of Occupational Safety and Health (the investigative and prosecutorial arm of Cal/OSHA) cites the employer for a “repeat” violation. A “repeat” violation carries with it a significant increase in penalties: that $500 penalty now transforms into a serious, repeat violation with a penalty of up to $36,000. If the untrained employee had been killed, the employer would face a repeat penalty amount of up to $50,000, and the employer (and the responsible managers) would face potential criminal liability.
This is not a fanciful scenario. Under Cal/OSHA, employers are required to have an Injury and Illness Prevention Program (IIPP) in place to identify and respond to particular hazards in a workplace. In addition, the IIPP regulation mandates that employers train their employees on the hazards in the workplace. Yet, employers may be lulled into settling a Cal/OSHA citation by a short-term cost-benefit analysis of a particular citation and its accompanying penalties. But, except perhaps where an employer is in financial distress, the penalties should not be an employer’s chief concern. Instead, the focus should be on answering these questions:
- How likely is it that, despite our best intentions, a similar violation may occur in the future?;
- Do we have the necessary processes and procedures in place (including personnel and training) to ensure compliance?
These questions become all the more weighty when the consequences of non-compliance could lead to death or serious bodily injury to an employee.
This does not mean that employers should always or necessarily file an appeal and litigate every citation. But it does mean that employers must view a Cal/OSHA citation with their eyes wide open and attuned to the longer-term risks.
Those risks may become more acute under a revised “repeat” violation policy under consideration in California. The Division of Occupational Safety and Health is considering public comment in light of its draft changes to Title 8, Section 334 of the California Code of Regulations. The three significant changes proposed by the Division would:
- increase the “look back” period from 3 years to 5 years;
- allow a repeat citation for any prior employer violations in the state (as opposed to the current rule which limits repeat citations to the cited establishment for fixed establishments such as factories and stores, or to prior violations within the same Region of the Division for businesses such as construction and excavation which have no fixed establishments); and
- allow a repeat citation for a substantially-similar violation, hazard, or condition (as opposed to the “same violation” under current law).
If these changes are approved, the Division will have broader authority to issue repeat citations. The stakes will have gotten much higher for California employers.
Employers in California must keep in mind that settling Cal/OSHA citations with relatively small penalty amounts, as tempting as that might be, could lead to much larger problems (financial and otherwise) in the future with “repeat” citations for similar safety violations. And, in light of expanded Cal/OSHA “repeat” liability in the hopper, employers need to double-down on compliance efforts through a combination of workplace inspection, training, and enforcement.