OSHA violations

On Thursday, April 13, 2023, Eric Conn and D arius Rohani-Shukla presented a webinar regarding Updates about OSHA’s Egregious Enforcement and SVEP.

OSHA violations characterized as Repeat or Willful can now carry penalties as high as $156,259 per citation. You may be wondering, however, what exactly leads OSHA to characterize a violation as Repeat or Willful, and why are they important beyond their high-dollar cost? No doubt, you heard that OSHA changed the Severe Violator Enforcement Program (SVEP) in September 2022, making it easier to place employers into the program and saddle them with all the negative consequences associated with it even though the citations which prompted the referral are not yet final orders. Raising the stakes even higher, OSHA announced changes to its “Instance-By-Instance” or “Egregious” enforcement policy in January 2023 that will undoubtedly lead to a significant increase in the number of multi-million-dollar enforcement actions.

This webinar explained the legal standard for Repeat, Willful and Egregious violations, the potential consequences for receiving them, and how OSHA’s enforcement policies have resulted in a significant increase in the frequency with which we see these aggravated characterizations.

Participants in this webinar learned: Continue reading →

By Eric J. Conn and Darius Rohani-Shukla

On January 26, 2023, OSHA revealed to the public two enforcement memoranda that it had issued to its field offices and all of the State OSH Plans that will substantially sharpen OSHA’s enforcement teeth and increase the pain OSHA can inflict on employers across the country. Specifically, OSHA dramatically expanded the circumstances when it can issue “instance-by-instance” citations to employers, and also discouraged the grouping of similar citations under a single penalty.

Instance-by-Instance (IBI), or per-instance enforcement is one of OSHA’s most powerful tools to ratchet up civil penalties. It is essentially a multiplier for OSHA citations based on a “unit-of-violation” set by OSHA standards that require individualized duties; i.e., train each employee, guard each machine, require a hard hat for each employee, etc. As a result, rather than a single citation with a single penalty for an employers’ failure to ensure that all employees wear a hard hat at a construction site, per-instance enforcement allows OSHA to instead issue ten citations with ten separate penalties for each of the ten employees observed without a hard hat.

Historical Per-Instance Enforcement

OSHA’s IBI enforcement policy was first memorialized in 1990 in an enforcement directive called “Handling of Cases to be Proposed for Violation-By-Violation Penalties.” This policy came to be known as OSHA’s Egregious Enforcement Policy because OSHA’s policy was to use it only in circumstances involving conduct found by OSHA to be worse than just willful. Specifically, under this long-standing willful-plus standard, OSHA issued per-instance citations when violations were found both to be willful and also to meet one of the following criteria: Continue reading →