Unclassified’ penalties could be dangerous

Safety violations deemed unclassified’ by federal officials can hide serious problems that may prove fatal to workers, according to an analysis of records by OSHA Data, a consulting firm in Maplewood, NJ, that specializes in analyzing records from the federal Occupational Safety and Health Administration (OSHA) in Washington, DC.

OSHA frequently will agree to list certain employee workplace safety violations as "unclassified" rather than the more problematic "willful" or "repeat" classification, explains Matthew Carmel, president of OSHA Data. Carmel previously worked for OSHA and is known as a strong critic of the agency’s safety inspection policies. His firm analyzes past OSHA inspection records to help employers and occupational health providers determine what to expect and how to best avoid OSHA penalties.

Carmel says OSHA has been more willing to deem some violations "unclassified" in past years because the agency has come under fire for hassling employers and requiring too much work to comply with its regulations. But while that policy may make some employers happy by avoiding more serious violation classifications, Carmel says it can have devastating effects on worker safety.

On Feb. 9, 1999, OSHA announced a $383,500 penalty against a government contractor for the Aug. 23, 1998, death of one employee and serious injury of another. The contractor was engaged in lead paint removal at the Cutler (ME) Naval Air Station. The company was cited by the agency for alleged willful and repeat violations of OSHA’s scaffolding standards. However, nearly one year to the day earlier, OSHA had inspected this same contractor and cited it with a $700,000 penalty for a willful scaffolding violation. At the same time, OSHA used its discretionary authority to list the violation as "unclassified."

Carmel tells Occupational Health Management that the "unclassified" violation turned out to be significant. His computer search of OSHA violation records revealed that the contractor had a substantial prior inspection history including willful, repeat and numerous scaffolding and fall protection standard violations.

He suggests the "unclassified" violation allowed the contractor to avoid serious penalties which could have prompted safety improvements, and that a more serious violation classification may have made it more difficult for the contractor to remain working on the government project.

"If OSHA had not appeased the company by downgrading the prior scaffolding violation and taken seriously its responsibility to enforce their own regulations, and if the federal government had refused to award contracts to companies with poor safety records, the death of that employee might very well have been avoided," Carmel says.