New OSHA Legislation Would Dramatically Increase Civil and Criminal Penalties for Workplace Safety Violations

Date: Apr 29, 2009

Civil Penalties Would Rise Minimum of 70%; Makes Employees Co-Enforcers of these Laws; Expands Whistleblower Provisions Among Other Changes

WASHINGTON, D.C – Yesterday, the U.S. House of Representatives Committee on Education and Labor held hearings to consider new and dramatically increased civil and criminal penalties for violations of the Occupational Safety and Health Act (OSH Act), especially those resulting in serious injury or death. The changes, spelled out in the Protecting Americas Workers Act (PAW Act) introduced last week in Congress, would increase civil penalties for workplace violations by a minimum of 70 percent, and would impose much higher civil penalties and potentially severe criminal penalties for those resulting in serious injury or death. The bill's sponsors say the changes are intended to prevent worker injuries or death by providing employers with greater incentives to comply with workplace safety standards.

Lawrence Halprin, who testified yesterday and has spent more than 30 years as an attorney handling workplace health and safety issues and OSHA enforcement actions, says that the sanctions against employers currently provided under the Occupational Safety and Health Act are already strong enough to achieve substantial compliance, and to penalize and deter employers from committing future violations.

"As they are, the current enforcement provisions of the OSH Act are balanced and cost-effective," says Halprin, a partner at Keller and Heckman, LLP, in Washington, D.C. He noted that "In fact and as a result, workplace fatality and injury rates have dropped to their lowest levels since those statistics were first compiled by the Bureau of Labor Statistics in 1992." Halprin believes, "Contrary to the approach reflected in this bill, we need more clarity in the existing OSHA rules, which are often confusing if not incomprehensible, and impractical if not infeasible."

"Unfortunately, as demonstrated by our country's experience in other areas of regulatory compliance, the new civil and criminal penalties proposed under this bill will not prevent the most egregious employers from violating the rules," Halprin adds. He noted that, over the last 18 years, OSHA had found, on average, that only 0.2% of cases involving a work-related fatality merited referral to the Justice Department for criminal prosecution.

"I think the current penalties are sufficient to prevent almost all employers from violating workplace safety standards," Halprin concludes. "Some changes may be needed for the most outrageous cases that require criminal prosecution, but I don't think these increases are necessary to deter employers from violations because most of them already work hard to provide a safe environment for their workers."

While the focus of yesterday's hearing was on the penalty provisions of the PAW Act, Halprin noted the PAW Act would make other critical changes that would "turn accepted principles of due process on their head," and "make employees joint enforcer's, along with OSHA, of the OSHA requirements." These and other proposed changes could change the entire nature of the OSHA enforcement process. If adopted, Halprin believes they "may very well cause employers to limit their cooperation with OSHA inspectors and reconsider the current practice of allowing OSHA to conduct inspections without first obtaining an inspection warrant."

Halprin spoke at length during yesterday's hearing and has monitored the legislation closely. He can discuss the ramifications of the bill as it makes its way through Congress.

For more information on these and other workplace safety and health issues, please contact Tara Busby at (202) 434-4174 or Crystal Rockwood at (562) 682-6482, or visit khlaw.com.

Downloadable Files:
Adequacy of OSHA's Penalties
Delivered Testimony of Lawrence P. Halprin
Formal Written Statement of Lawrence P. Halprin
OSH Act with PAW Act Incorporated
Post-Hearing Statement of L.Halprin with Attachments