Popularized by the infamous misquotation of former President George W. Bush, everyone is familiar with the following idiom, though I ask that you allow me to further massacre it for the purposes of this column: “Cite me once, shame on me; cite me twice, shame on me and the entire enterprise.” Thank you for humoring me, but, silly as it sounds, this was the first thing that came to mind as Eric Conn, head of OSHA practice with the law firm Epstein Becker Green, outlined OSHA’s strategy for adding new members to its least popular club: repeat violator.
In his presentation, “Mitigating Safety & Health Risks,” at the National Grain & Feed Association’s Annual Convention, an executive-level event held in Charleston, SC, Conn noted that repeat violations have increased 225% since the Obama Administration’s “new sheriff” shifted to an enforcement-heavy strategy by moving from “a reactive to a proactive philosophy.” While the organization is known to target particular industries within the scope of its local and national emphasis programs, OSHA is not beyond the conspicuous “hand selection of past violators as targets for inspection.” According to Conn, this means OSHA now treats facilities within a corporate family as one workplace, meaning violations cited within a five-year span — including different locations — will be treated as repeat offenses and viewed as a systemic issue.
Yes, dangerous working conditions and violations of the law should be dealt with accordingly, but as it stands, once your organization has been added to the repeat violators list, it will take five years before for it can qualify for a clean history reduction; and if you’re labeled as a severe violator, there currently is not a procedure in place for removal from this list.
Since “follow-ups and repeat violations have been [OSHA’s] biggest weapon,” Conn recommends companies challenge any citations regardless of how minor the penalty.
“While the dollar amount may seem small and you may think it’s easier just to pay it and move on, over the long term, the issue may occur again — say four years from now at a different location — and you will become a repeat violator and receive an extremely large fine,” Conn explains.
With the nuances of certain regulation left up to the interpretation of the inspector, the informed manager is urged to take every precaution to prevent falling into this cycle. Conn suggests companies — especially cooperatives and other multilocation grain operations — address potential problems and increase their communication across the board.
Bottom line: Avoid the shaming and cover your bases, enterprisewide.
Note: In our August/September issue, we will feature an article from Epstein Becker Green discussing what companies can do to prepare for an OSHA inspection. To view Conn’s violations check list, click here.