Settling Other-Than-Serious Violation May Be a Sucker’s Bet

Date First Published on SafetySmart Compliance: February 21st, 2012
Topics: OSHA Inspections |

Rolling DiceIn response to last week’s blog about OSHA’s fining a Rochester, NY Wal-Mart $288,000 for 10 repeats from other stores, I got the following comment:

Excellent piece, Glenn. You should also warn your readers about settling other-than-serious citations because OSHA may be setting them up for a repeat later.”

— Name Withheld

The OSHA OTS Settlement Sting

Request granted. What Name Withheld is talking about is OSHA’s new and, frankly, pretty squirrely enforcement tactic:

The Set-Up: Of the 4 kinds of OSHA violations, Other-Than-Serious (OTS) is the least serious, carrying a maximum fine of only $7,000. Repeats and willfuls, by contrast, are up to $70,000 a pop.

Step 1: OSHA inspectors walk the workplace accumulating as many technical violations as they can find—missing tags on fire extinguishers, slight irregularities in the OSHA 300 logs, those sorts of things.

Step 2: OSHA characterizes the violations as serious and proposes a fine somewhere in the maximum vicinity. If the employer accepts the penalties, great; OSHA gets the money.

Step 3: If the employer puts up a squawk, OSHA offers to reduce the violations to OTS and cut the fine or even completely waive it. It’s an offer many employers find too tempting to resist.

Step 4: The Sting: [cue the Marvin Hamlisch/Scott Joplin music, please]. Under OSHA’s repeat violations policy (laid out in a July 2010 Administrative Penalty bulletin), once you have a violation on your record—even an OTS—you can be cited for a repeat if you commit the same or similar violation within 5 years. Result: Up to $70,000 in fines per repeat.

So when you accept an OTS, you put yourself in the probationary 5-year window. Adding to your vulnerability is the fact that OSHA deliberately targets companies with OTS violations for follow-up inspections.

It gets worse. If you have multiple locations, the OTS you settled for one site serves as the basis for repeats for the same or similar violations at another of your sites.

The Sting in Action: The Wal-Mart Case Study

This is essentially what happened in the (Feb. 7, 2012) Rochester, NY, Wal-Mart case I blogged about the other day.

On Dec. 1, 2009, OSHA inspectors from Region 4 cite the Wal-Mart superstore in Rincon, GA, for failing to keep emergency exits free of obstructions in violation of the standard for emergency routes. (Sec. 1910.37(a)(3)). It’s an OTS violation. Proposed penalty: $0.

Move ahead to Aug. 2, 2011. OSHA inspectors from Region 2 find equipment and machinery in the grocery area aisles obstructing egress in violation of the same standard. Since the Georgia store committed the same offense 18 months earlier, it’s a repeat. Proposed penalty: $22,000.

By the time the other 9 repeats from other stores are added to the bill, Wal-Mart is looking at $288,000 in fines for 10 repeats.

The Moral: Think Twice Before Settling OTS Violations

Getting a serious violation reduced to an OTS looks like a pretty good deal, especially if OSHA sweetens the pot by cutting or totally waiving the fine. But don’t be too quick to take the deal. Understand that settling an OTS violation sets you up for repeats over the next 5 years. The red in the red flag should be even redder if you’re a large, national corporation with multiple locations.

Click on the link for basic guidance about whether to contest OSHA citations;