In various discussions, particularly those with federal OSHA, I spend a lot of time defending Oregon OSHA's relatively modest approach to most workplace health and safety penalties. Year in and year out, the average penalty for a first-time serious violation in Oregon is lower than it is anywhere else in the country.
There are good reasons for that. It reflects our higher enforcement presence, as well as our understanding that modest penalties are sufficient "reminders" of the importance of workplace health and safety in most contexts. And we do have the tools to address repeat and willful violations when they occur – as well as a penalty approach that focuses on those violations most likely to cause death in the workplace.
But our penalty approach is difficult to defend if the penalties are not paid and the employers who owe them continue to conduct business with little regard to the safety and health issues we have raised. Unfortunately, for some – too many – that appears to be exactly the approach that they take. This is a particular issue for small employers in those industries that do not require a significant "brick and mortar" presence – several prime examples can be found in residential construction. In many cases, the biggest asset those employers may have is their name. And they can maintain that asset through various identities, with a small change of spelling or even punctuation.
Oregon OSHA Administrator
Several years ago, the legislative assembly gave us the ability to pursue "successor" employers in such situations, as well as to cite repeat violations based on the history of their predecessors. And we have done that in those cases where we have been able to demonstrate the continuity of ownership and other criteria provided for in the rules. But even when we pursue successors, we can face challenges collecting past penalties. And that's not fair to the responsible businesses that pay the penalties they owe – or that simply follow the rules in the first place.
One tool that we have not used the way we should is the ability to make referrals to the Construction Contractors Board (CCB). The CCB will consider nonpayment of money owed to Oregon OSHA (among others) as a basis for withdrawing or withholding a contractor's license. And that should get the attention of those who are continuing to do business without paying their debts. We also have the authority to make referrals based on the most egregious situations – multiple repeat or willful violations.
These are tools that we have not been using, but that is changing. We will begin routinely referring those construction employers who are not paying their penalties to the CCB for appropriate action. And we will evaluate those who receive multiple repeat or willful violations to determine whether we should ask for a license suspension or withdrawal in those cases as well.
Oregon OSHA's purpose is the reduction of those hazards that can cause injury, illness, or death. And one of the approaches we use is enforcement – we need to do everything we can to make sure that enforcement remains a credible and meaningful tool. ▉
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