OSHA Civil Penalties On the Rise Again

By Dan C. Deacon and Eric J. Conn

As of January 2, 2018, civil penalties for workplace safety and health violations issued by federal OSHA increased again by 2% across the board.  Although a 2% increase does not shock the system, this increase is part of a program that has resulted in OSHA’s civil penalty authority nearly doubling since 2016.

History of Civil Penalty Adjustments

As I sit here this afternoon wondering if the government will shut down over disputes about immigration and healthcare, I am reminded of a time just a couple of years ago, in late 2015, when we were again on the verge of a government shutdown over abortion rights and deficit spending.  That shutdown was averted thanks to a backroom deal between outgoing Speaker of the House John Boehner and President Obama, which ultimately took the form of the Bipartisan Budget Act of 2015.  That “kick the can down the road” measure included a controversial statute that was essentially unknown (including by the folks within OSHA) and saw exactly zero seconds of debate on the floor.  It was called the “Federal Civil Penalties Inflation Adjustment Improvements Act,” and it mandated that executive agencies increase their maximum civil penalty authority by the percent increase to the Consumer Price Index since the last time the agencies had raised their penalties.

On June 30, 2016, the Department of Labor issued its Interim Final Rule to implement the Civil Penalty Inflation directive.  OSHA’s civil penalty authority had been stagnant for as long as any other agency, not having been increased for 25 years (since 1990), so this “catch-up” penalty increase for OSHA was the most significant.  Indeed, following the formula included in the statute, OSHA was required to increase its penalties on August 1, 2016 by the same percentage increase as the growth from the 1990 Consumer Price Index – Urban (CPI-U) to the October 2015 CPI-U, which was nearly 80%:

In addition to the one-time 80% “catch up” increase that went into effect on August 1, 2016, OSHA’s Interim Final Rule, the Federal Civil Penalties Inflation Adjustment Improvements Act also required Continue reading