Cal/OSHA's New Penalty Schedule: The Other Shoe Has Dropped

Posted by walterlaw

The increases in penalties Congress mandated on Fed/OSHA has finally rippled down to Cal/OSHA. Enabling legislation was passed in the last session to bring California in line with the new federal penalty scheme and Cal/OSHA has now acted on it. 

According to a September 12, 2017 memo from Cal/OSHA Assistant Chief Counsel Nathan Schmidt to all Enforcement staff, provided to us by Dick Monod (thanks Dick), effective September 14, 2017 Enforcement will have the following new maximums to work with:

Regulatory/General citations: Maximum will increase from $7,000 to $12,471. This includes posting and record keeping violations. 

Serious citations: No change, as California’s cap of $25,000 is still above the federal max. But the Legislature scrapped the $2,000 cap on Serious citation penalties for tower crane and carcinogen violations. The max for them is now the same as any other Serious: $25,000. 

Willful and Repeat citations: From $70,000 to $124,709. The minimum for a Willful will jump from $5,000 to $8,908. 

Some questions remain: 

1. Will the penalty cap for reporting violations, currently $5,000, be affected? A change would seem to require additional legislation.

2. Will these numbers increase annually, as the federal numbers will, based on the Consumer Price Index?  Would seem so, if we are to remain in lock-step with Fed/OSHA.

3. The memo states that “...there are no other changes to the manner in which proposed penalties are to be calculated.” Does this mean that the default penalty for serious citations will remain at $18,000?

4. Finally, does the imposition of these new maximums on September 14th for violations occurring before that date violate employers’ due process rights? 

We can’t wait to find out.

While there are still questions to be answered, the message to California employers is clear: Your bottom line will be impacted if you are tagged by Cal/OSHA, no matter how strong your overall safety program actually is. 

A copy of Mr. Schmidt’s memo is attached. 

/perch/resources/dosh-penalty-increase-memo-enforcement-2017-09-12-1.pdf

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