How Are Cal/OSHA Violations Classified and Penalties Calculated?
By James I. Anderson, Esq.
In brief
Mine operators in California, Texas, and across the country are familiar with the federal Mine Safety and Health Administration (“MSHA”) citation penalty structure; MSHA updates its penalty figures annually, and the penalty factors are clearly set out in the 30 CFR regulations.
Mine operators in California, however, have another penalty structure to contend with – the penalties that may be assessed by the California Division of Occupational Safety and Health, Mining & Tunneling Unit (Cal/OSHA). Compared to MSHA, Cal/OSHA’s penalty structure can be more difficult to ascertain. Here, we provide a general overview.
When issuing a citation for a safety order violation, Cal/OSHA begins its penalty assessment process by classifying the violation based on specific workplace circumstances. Penalties are then determined based on the classification, with adjustments upward or downward made according to several factors. It is crucial for mine operators, and employers generally, to understand how Cal/OSHA classifies violations and calculates penalties. This knowledge can help operators or employers better prepare to appeal or dispute erroneous citation classifications or penalties.
In detail
When a violation occurs Cal/OSHA may issue a penalty based on violation type or issue a "notice in lieu" of a penalty, which allows the employer to correct the violation within a reasonable time. If corrected and not appealed, this notice will not result in a penalty. Where Cal/OSHA determines that a penalty is appropriate, Cal/OSHA staff will first classify the violation based on the circumstances leading to it. Each classification category carries different potential penalties. Below are the five citation categories with definitions and explanations for each:
Regulatory: A violation of regulatory requirements related to permits, reporting, or recordkeeping.
General: A violation that is not serious in nature, and where no injury has occurred.
Serious: A violation where there is a possibility of death or serious physical harm, or where an injury has occurred. If an injury has occurred, it is classified as "Serious Accident-Related."
Repeat: A violation where the employer has abated or indicated abatement of a previous violation, and upon a subsequent inspection within five years, a substantially similar violation is found.
Willful: A violation where the employer willingly violates a safety law or was aware of hazardous conditions but failed to eliminate them.
Minimum and Maximum Penalty Amounts by Citation Category
Based on the violation category, Cal/OSHA issues a penalty in accordance with California Code of Regulations Title 8, Section 336 (8 CCR 336). Each category has a maximum penalty amount, which may be adjusted based on specific criteria. The minimum and maximum penalty amounts are as follows:.
Regulatory: Minimum $500; Maximum $15,375
General: Minimum $500; Maximum $15,375
Serious: Minimum $18,500; Maximum $25,000
Repeat: Minimum $500; Maximum up to $153,744, depending on the number and classification of repeat violations
Willful: Minimum $10,981; Maximum $153,744
After classifying the violation and setting the base penalty, Cal/OSHA can adjust the penalties based on several factors.
For “general violations,” the penalty amount can be adjusted based on the "gravity" (severity of the violation), the "likelihood" (probability of injury or death), and the "extent" (number of affected employees). Each of these factors can modify the base penalty by up to 25%. The resulting figure is known as the "gravity-based" penalty.
Further adjustments from the gravity-based penalty can be made based on the size of the business, the employer's "good faith," and the history of previous violations. The percentage reduction for each of these factors varies, resulting in what is termed the "Adjusted Penalty."
It's important to note that violations classified as “Serious Accident-Related” or “Repeat” are not eligible for all penalty adjustments outlined above. For example, the minimum penalty for a serious accident-related violation is $18,000, and this amount is not eligible for a downward adjustment based on all the factors listed above.
Conclusion
Understanding the classification of violations and the process of penalty adjustments is essential, as these factors determine the Adjusted Penalty amount that Cal/OSHA assesses against employers.
For more detailed information on this process, contact janderson@everviewlaw.com.
At Everview we are dedicated to helping our clients navigate safety regulations to protect workers, reduce costs, safeguard operations, and protect business interests.