April 11, 2012

OSHA’s Heavy Hand Enforcing Repeat Violations Across Multiple Locations

Holland & Knight Alert
Howard Sokol

Dollars Add Up Quickly for Retail Chains

The Occupational Safety and Health Administration (OSHA) continues its policy of assessing safety violations on an employer-wide basis. As a result, OSHA has assessed the higher penalties associated with repeat safety violations if a multi-location employer, such as a large retail chain, has two or more similar violations at any of its locations, rather than issuing citations and assessing penalties for repeat violations occurring at the same facility. This approach has been strongly criticized, but OSHA has remained resolute in defending the need for such enforcement.

The Dollar Tree Case

One example of OSHA’s employer-wide approach to enforcement involves Dollar Tree Inc. On March 15, 2012, OSHA cited Dollar Tree for two repeat violations that OSHA alleges were found nearly six months earlier at Dollar Tree’s store in Newark, New Jersey, one of the chain’s 4,350 locations. Dollar Tree was cited for purportedly unsafe stacking of merchandise (i.e., boxes of merchandise in a stock room stacked seven to eight feet high in an “unstable manner”) and blocking storage room exits (i.e., a blocked fire exit).

OSHA cited Dollar Tree for two repeat violations even though the agency conceded that the Newark location had never been previously cited for such violations. Rather, OSHA imposed the repeat violation penalty because it had previously found similar unsafe conditions in other Dollar Tree retail locations in New York and New Jersey dating back to 2008. Because it found both violations at the Newark store to be repeat violations, OSHA levied a proposed fine of $121,000 against Dollar Tree ($66,000 for the unsafe stacking violation and $55,000 for the blocked fire exit).

OSHA’s stated policy concerning the issuance of repeat violations allows the agency to assess a repeat violation against a multi-location company if it has found the same or similar unsafe condition at any other location operated by the same company within the previous five years — no matter the size or scope of its geographical presence and the breadth of the company’s products or service lines. Within the last six months, OSHA has cited other large retail chains for repeat violations premised on the same or similar violations previously found at other locations, with resulting proposed fines totaling nearly $500,000.

Criticism of OSHA’s Policy

OSHA’s policy continues to stir controversy among and draw complaints from those representing employers and management. One notable example is the Executive Director of Labor and Law Policy for the United States Chamber of Commerce, Marc Freedman, who has characterized OSHA as being “all about the fine[s] and not [about] the fix.” Mr. Freedman said that OSHA is not primarily interested in problem solving, but rather in unfairly punishing and fine collecting. According to him, “[t]he fix is simple — move the merchandise, and the store was probably very willing to do that once they understood the hazard. OSHA, however, was insistent in levying a heavy fine and went forward with that.” To connect and then conflate different stores’ respective violation histories and then charge one for the other’s previous violations is unfair, according to Mr. Freedman, as the stores typically operate independently from one another. Therefore, “to link them up this way is inconsistent” with the business realities of any retail chain.

Unbowed, OSHA’s area office from which the citations and fines were issued to Dollar Tree’s Newark store remained firm in its actions. The director of OSHA’s Parsippany, New Jersey office, Kris Hoffman, maintained that OSHA’s objective is to ensure the safety to workers and that the type of violations for which the Newark store was cited and fined are common and “can pose a serious a serious risk to workers.” To this end, and without directly addressing fairness, knowledge and consistency arguments against OSHA’s policy, Hoffman stated that “[i]t is imperative that Dollar Tree stores evaluate all of its locations for these and other workplace hazards, and take the appropriate steps to protect workers” (emphasis added).

Holland & Knight’s Labor, Employment and Benefits Team is well placed to answer questions about this OSHA enforcement policy, as well as more general questions about OSHA.

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