Pub. 1 2012 Issue 2

28 San Diego Dealer Management Review of OSHA Violations and Related Penalties BY SAM CEL LY U nder Federal Department of Labor (OSHA) regulations enacted in 29 CFR 1910 and Cal-OSHA regulations in Title 8 of the California Code of Regulations, there are serious penalties for safety violations at the workplace. The penalties are generally categorized as General or Serious based on the severity of the possible injury to the employee. The following are examples of these penalties and the financial costs associated with them. GENERAL VIOLATIONS: Illness & Injury Prevention Program: Program that doesn’t implement inspection and training. Assessed Penalty $350 Lockout Tagout: Lockout Tagout procedures not in place. Assessed Penalty $350 Forklift: Inspection not completed at start of shift. Assessed Penalty $350 Ventilation System: Ventilation system not tested. Assessed Penalty $350 SERIOUS VIOLATIONS: Grinder: Spindle cover missing on grinder. Assessed Penalty $3150 Grinder: Tool rest missing on grinder. Assessed Penalty $3150 Arc Welding: Electrode not removed from holder. Assessed Penalty $3150 Damaged Ladder: Ladder with damaged/bent bracing. Assessed Penalty $2250 Malfunctioning Ladder: Propelled Ladder with inoperable locking. Assessed Penalty $2250 Forklift: Forklift with no rating plate. Assessed Penalty $2250 Forklift Training: Training not renewed in the past three years. Assessed Penalty $2250 Extension Cord: Ground prong removed. Assessed Penalty $2250 Electrical Outlet: Damaged housing on outlet. Assessed Penalty $2250 Welder: Damaged male plug on the main cord. Assessed Penalty $2250 Bonding: Containers not bonded when transferring flammable liquid. Assessed Penalty $1800 Goggles/Shield: Goggles/shield not worn when spraying corrosive liquid. Assessed Penalty $1800 Gloves: Gloves not worn when spraying corrosive liquid. Assessed Penalty $1350 Hazmat Labeling: Flammable liquid not labeled with Hazard warning. Assessed Penalty $1800 Eyewash Station: Eyewash station not available. Assessed Penalty $3150 Failure to report serious injury to Cal-OSHA: Employer did not report in an 8 hour window following the serious injury. Assessed Penalty $5000 $70,000 FOR REPEATED VIOLATIONS: Recently Dollar Tree stores were fined $121,000 for two violations. The store in New Jersey failed to keep fire exits clear and had stacked boxes on racks in an unsafe manner. The violations were a first for this store, but OSHA had cited other Dollar Tree stores in New Jersey and New York for similar violations in the past five years. In its press statement, OSHA stated that once Dollar Tree gets cited at one location it is deemed to have knowledge for all its stores even if they are located thousands of miles away. The lesson is that if you operate multiple stores, fix your problems across the board. $300,000 FOR INJURED EMPLOYEE: BNSF was ordered to pay $300,000 to a Seattle area employee whowas suspendedwithout pay following a work-related injury. Seattle Times reported that the woman injured her knee while getting off a train in the Balmer freight yard in Seattle.Thewomanwas initiallyplacedonmedical leave without pay and later disciplined. OSHA investigated and found that thewoman suffered emotional and financial problems as a result of the accident and lived in chronic pain due to her knee injury. The lesson for employers is that they must provide proper and prompt treatment for employees injured at work. INDEPENDENT EMPLOYEE ACT DEFENSE So, what do you do if you are fined by OSHA for a serious penalty? Among the many defenses available to you is the Independent Employee Act Defense (IEAD). The case of Mercury Service, Inc. from 1980 is still cited in legal circles Cal/ OSHA App. 77-1133, DAR (Oct. 16, 1980). In