New approaches result in more, higher penalties for employers

By Richard Voigt

High-penalty citations recently issued by OSHA to Wal-Mart and Dollar Tree Inc. reveal enforcement strategies that many employers may not be aware of. Here are several important lessons from these six-figure penalty cases.

OSHA Now Focused on Retail Facilities

The citations were issued as a result of OSHA inspections of retail facilities. While retail establishments have always been covered by the Occupational Safety and Health Act, historically they have not been viewed as high-hazard locations and, therefore, have not been the target of aggressive OSHA enforcement actions. The citations issued against Wal-Mart and Dollar Tree confirm that OSHA will use its full enforcement authority in the retail world as well as in industrial and construction settings.

Exits Must Be Kept Clear

Blocked exit-ways: a condition that some might regard as relatively minor: were a major target of the inspections in the Dollar Tree and Wal-Mart cases. Following a multi-fatality fire at Imperial Foods in North Carolina, in which locked exit doors and blocked exit-ways were found to have contributed to the tragedy, OSHA has been particularly concerned about effective means of exiting the workplace in an emergency.

Boxes stored in aisles, equipment stored in front of exit doors, or other obstacles that could impede employees' exit from a facility are not viewed by OSHA as minor hazards, even if the conditions are temporary. Some employers who have otherwise been conscientious about safety have failed to give ongoing attention to this "housekeeping" matter and have left themselves vulnerable to significant OSHA citations.

New Policy Means Higher Penalties

The penalties in the Dollar Tree and Wal-Mart cases were increased significantly due to OSHA's application of its multi-location enforcement policy. Under this policy, OSHA treats different facilities operated by a company as the same workplace for purposes of assessing repeat-violation penalties, which generally carry a much higher price tag than penalties for first-time infractions.* (Historically, OSHA has treated different facilities operated by a single company as independent establishments.)

For example, OSHA will issue a repeat citation even if the facility in violation is a first-time offender in cases where another facility operated by the same company has previously been cited for a similar violation.

In the Wal-Mart case, a $365,000 penalty was issued to a facility in Rochester, New York, based largely on the fact that OSHA had issued similar citations between 2008 and 2010 to Wal-Mart workplaces in other locations, including Fargo, North Dakota, and Tulsa, Oklahoma. Similarly, OSHA issued $121,000 in proposed penalties to a Dollar Tree facility in Newark, New Jersey, based on similar violations having been found from 2008 to 2010 in Dollar Tree facilities in Bergenfield and Dover, New Jersey, and Commack, New York.

Takeaways

This enforcement policy is based on OSHA's expectation that a company with multiple locations will communicate to all of its facilities the citation history that comes out of a single location and, in the process, coordinate an effort to implement company-wide abatement of cited hazards regardless of where the hazards were initially identified.

The Dollar Tree and Wal-Mart cases and others like them indicate that employers should not assume that a non-industrial or non-construction setting, a "housekeeping" condition, or a limited citation history at an individual location provides protection from significant OSHA enforcement action.

* OSHA distinguishes among several types of violations, including the following: Other Than Serious (OTS), Serious, Willful, and Repeat. The maximum penalty for an OTS or Serious violation is $7,000. For willful and repeat violations, the penalty can be as much as $70,000.

Richard Voigt is a partner in the law firm of McCarter & English LLP in Hartford. He can be reached at rvoigt@mccarter.com.