At a House hearing April 28, Lawrence Halprin, an attorney with the law firm of Keller and Heckman, LLP, provided a decidedly opposing view to the rhetoric of House Democrats and the AFL-CIO’s Peg Seminario on the need to significantly strengthen OSHA penalties.

Halprin said he has spent a substantial portion of the past 30 years assisting clients in the area of workplace safety and health – providing counseling, performing audits, providing training, developing and reviewing programs, and representing clients in a wide range of enforcement proceedings brought by OSHA and its state counterparts.

In appearing at the hearing, Halprin said he was expressing his personal views as a safety and health professional committed to the goals of the Occupational Safety and Health Act. His comments were not intended to represent the views of Keller and Heckman LLP, or any clients.

Halprin’s key points, taken word for word from his prepared testimony:

For the reasons stated below, with two possible exceptions, I believe the current penalty scheme provided by the OSH Act is adequate to achieve the goals of the OSH Act.

However, while there has been a significant improvement in OSHA’s enforcement efforts, I do believe OSHA needs to significantly enhance its ability to quickly, but responsibly, identify and take action against those few employers who demonstrate a callous disregard for their responsibilities to provide a safe workplace for their employees.

Finally, I believe OSHA could most effectively advance workplace safety by improving the clarity of its standards and implementing more effective education and outreach and cooperative programs. Employers and employees need more information that provides meaningful guidance on what is required and why it is required. Too often, current guidance materials repeat the ambiguous language currently contained in the OSHA standards and compliance directives.

First, the existing penalty scheme under the OSH Act provides significant penalties for each serious, repeat, willful and failure-to-abate violation. It is important to keep in mind that OSHA has the authority to impose these sanctions regardless of whether there has been an injury, illness or death.

Second, the many flaws inherent in OSHA’s dysfunctional rulemaking process, for which the business community must accept some responsibility, result in rules with broad and ambiguous requirements that are widely misunderstood, often impractical, frequently infeasible, and later interpreted in ways not contemplated by either OSHA or the regulated community.

Third, it is a daunting task for most small employers to familiarize themselves with, much less comprehend, just the thousand pages of OSHA requirements in the Code of Federal Regulations, which incorporate by reference hundreds of additional pages of national consensus standards. When one adds to that burden, the thousands if not tens of thousands of pages of OSHA directives, letters of interpretation and other guidance materials needed to more fully understand the applicable OSHA requirements, the task becomes insurmountable.

Fourth, even if it were possible to fully understand what is required by the OSH Act, it would be infeasible for any significant, active industrial operation in the United States to be in full compliance with the requirements of the OSH Act.

While industry has to share much of the blame for its inadequate participation in OSHA rulemakings, most OSHA standards are developed as generic standards by well-intentioned professionals who unfortunately do not have enough information to adequately understand the spectrum of real world operations to which the rules will be applied and how those operations will be affected by the proposed rule. Furthermore, instead of writing a practical and relatively straightforward standard designed to address 85 to 90% of the problem, I believe OSHA drafts a complex standard designed to address 99.9% of the problem.

I have been referring to OSHA as though it is a single agency with a uniform approach to the interpretation of its standards. Let me assure you, that is not the case. Interpretations of OSHA standards vary both between regions and within regions. They also vary between OSHA and the twenty plus states with their own state plans.

Fifth, faced with these practical challenges and limitations, a diligent employer will often turn to sound risk management principles to guide its workplace safety and health process. Applying those principles, an employer would perform risk assessments and manage its operations to minimize the risk of serious physical harm to employees. There are two problems with that approach.

First, there is some divergence between what is called for through the application of risk management principles and what is required by OSHA requirements.

Second, risk assessment requires an effective identification and evaluation of the relevant factors, includes a subjective component, and is always subject to criticism based on 20/20 hindsight.

Sixth, my experience is that the overwhelming majority of employers sincerely care about the safety of their employees, both because it is morally correct and because it is in the best interests of their business, and do their best within the limits of their resources to provide a safe workplace for their employees, protect the environment and comply with the multitude of other federal, state and local laws governing the operation of a business in this country.

The OSH Act subjects an employer to a civil fine of up to $7,000 for each serious violation.

The OSH Act subjects an employer to a civil fine of up to $70,000 for each repeat violation. A repeat violation is generally a violation of the same or a substantially similar requirement by the same employer at the same or a different facility. As a practical matter, this provision provides a strong incentive for multi-site employers to comply with known OSHA requirements and to promptly implement corporate-wide remedial measures when an OSHA inspection identifies a previously unknown requirement governing a hazard common to multiple facilities.

The OSH Act subjects an employer to a civil fine of up to $70,000 for each willful violation of an OSHA standard or the General Duty Clause. The foundation for a willful violation may be based on a pattern of conduct at the cited facility or a pattern of conduct at multiple facilities within the same company.

The OSH Act subjects an employer to a civil fine, for each failure-to-abate violation, of up to $7,000 per day for each day beyond the required abatement date that a condition remains unabated.

Finally, the OSH Act subjects an employer or responsible corporate officer to a criminal fine of up to $250,000 and 6 months incarceration for the first willful violation resulting in the death of an employee, and a criminal fine of up to $500,000 and 12 months incarceration for the second willful violation resulting in the death of an employee.

Clearly, these are substantial sanctions that should and do provide employers with the incentive to comply with the requirements of the OSH Act and to cause those who have violated the OSH Act in the past to change their ways.

It has been suggested by some that the criminal provisions of the OSH Act are inadequate to deter criminal conduct. I do not believe that is correct. For the typical corporate executive, incarceration for a period of six months would be viewed as a terrible and inconceivable outcome. Furthermore, as has been demonstrated by the criminal enforcement activities of the Department of Justice, the threat of far more severe criminal sanctions under, for example, the environmental and securities laws, does not completely deter crime.

In addition, the history of criminal referrals by OSHA shows that the maximum number in recent years was 12 referrals whereas the number of workplace fatalities was approximately 5600. In other words, OSHA determined that approximately 0.2% of the fatality cases involved conduct meriting a criminal referral. That suggests that the focus on increased criminal sanctions would do little to address the current level of workplace injuries, illnesses and deaths in this country.

BLS statistics indicate that approximately 60% of those cases involve workplace violence and transportation incidents beyond the reach of traditional workplace safety and health programs. separate citation and proposed penalty for the failure to comply with each required element of the procedure.

I mentioned two areas where some adjustment in the penalties authorized by the OSH Act may be appropriate. I believe the current criminal provision of the OSH Act is too broadly written to justify an increase in criminal penalties. From a moral standpoint, if the criminal provisions of the OSH Act were revised to distinguish between what are currently described as willful violations, and the much smaller group of cases equivalent to an employer taking out a gun, aiming it at an employee and pulling the trigger, then it would be morally appropriate to increase the criminal penalties for that small category of crimes.