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1. FEATURE STORY:
PENALTIES FOR OSHA RECORD-KEEPING
VIOLATIONS CAN ADD UP

February 1st is an important date for most workplaces. That's when workplaces that fall under the Occupational Safety & Health Act (OSH Act) must post OSHA Form 300A, Summary of Work-Related Injuries and Illnesses. The summary must be posted through April 30, even if there were no recordable injuries or illnesses and each column total is zero.

Filling out Form 300A (and the related OSHA Forms 300 and 301) often falls by the wayside, whether due to more pressing concerns, a lack of trained safety personnel, or deliberate under-reporting to hide unsafe conditions. Whatever the reason, know that OSHA (the Occupational Safety and Health Administration) does not take record-keeping violations lightly, especially willful violations. Here's a case that provides great incentive for ensuring that OSHA forms are filled out properly.

Last year, the Fifth Circuit Court of Appeals (Louisiana, Mississippi, Texas) upheld the issuance of individual penalties for each of 141 willful record-keeping violations, costing two companies a total of $1.21 million. Not even the Occupational Safety and Health Review Commission could save the companies from the huge penalties.

Penalties range from a minimum of $5,000 to a maximum of $70,000 for each willful violation. OSHA cited the first company for 82 willful record-keeping violations with proposed penalties of $9,000 per violation, while the second company received citations for 59 violations with proposed penalties of $8,000 per violation. Both companies contested OSHA's findings and penalties before the Review Commission. A Commission administrative law judge agreed that the violations were willful, but grouped the violations as if each company had committed only one willful violation and assessed a single penalty of $70,000 to each company.

Appeals court: Although the Review Commission has the authority to vacate citations, reclassify them if they are improperly classified by OSHA, and determine the appropriate penalty for each violation, it does not have the authority to group separately charged and proven willful offenses for the purpose of assessing a penalty.

Late last year, the U.S. Supreme Court refused to review the decision, leaving the appeals court ruling intact. (Jindal United Steel Corp. v. Chao, U.S. Sup. Ct., No. 07-128, 2007)

Where OSHA concludes an employer deliberately avoids recording occupational injuries and illnesses, resulting in significant under-reporting, it may cite the employer for a willful violation. Although multiple record-keeping violations may stem from a single company policy, each failure to record may represent a separate and distinct violation, said the appeals court, resulting in individual penalties. Avoid violations by:

• training appropriate staff members on how and what they must record. Emphasize why it must be done correctly.

• rectifying safety issues. Obviously, you don't want employees to get hurt in the first place. But there may be managers who don't want to admit to multiple injuries in their department, so they choose not to report them. Issues that get buried aren't likely to get solved.

• auditing OSHA logs. Check entries against personnel and medical records for consistency and to ensure that all required information has been included.

Click here to download all of the OSHA-required injury and illness record-keeping forms.

2. CATHIE'S CORNER:
ACRONYMS WE ALL KNOW AND LOVE

The other day a friend of mine and I were talking and I mentioned a PIP. She asked me what a PIP was. She's been in HR longer than I have so that surprised me, until I realized that I didn't always use the term "PIP" or "Performance Improvement Plan." At a previous employer, I called it a CAP (Constructive Action Plan). And probably any number of you call it something else altogether.

We do have a lot of acronyms in our business. Start with the FLSA, FMLA, COBRA, OBRA, QDROs, FCRA, OT, HIPAA, SPDs, STDs, LTDs, EAPs, FTEs, PTEs, WC, ADEA, ADA, UC (or UI if you prefer), DOL, OSHA, EEOC, and the list goes on. That's not even counting any industry-specific ones you might have, or any company-wide ones you may use internally.

While I'm not going to discuss each of them, I do have a few random comments to make.

• It drives me absolutely nuts when someone misspells HIPAA as HIPPA. It's not a large semi-aquatic animal from Africa, folks!

• I wish that someone had come up with a different acronym than ADA since we already had the ADEA. Particularly since they're first cousins to each other.

• I always forget about OBRA and think it's part of COBRA (isn't it?). Or is it? Am I second-guessing myself?

• I've gotten to where I don't even notice that STD has another meaning, but I've gotten my share of funny looks from people (not to mention offended ones from employees not in the know). Throw in SPDs, especially if it's the SPD for the STD, and you've got one very confused employee sitting on the other side of your desk.

• I get very confused when people inform me that they've reported violations to the ADA, evidently believing that to be the name of an agency rather than a law. I keep wondering what the American Dental Association thinks when they receive complaints about race and gender discrimination. I can only assume that's what is happening, since a number of times the employees are pretty darned adamant that they've been in touch with the ADA. And when I ask them if they're sure they don't mean the EEOC, let's put it this way: Yes, they're sure. Insert eye-roll icon here.

Got any good acronyms of your own that you'd like to share? Maybe some you've made up to describe situations that you frequently run into? Send them to me and sometime in the future I'll write a feature on them. Giving you credit, of course.

Just an off-topic reminder: I wrote a few weeks ago about giving employees time off to vote. Don't forget that in many states doing so is mandatory. We're into the heavy primary season now. Be sure you're familiar with your state's laws and have a policy set to go. And don't forget to go out and vote yourself!

Catherine Bannon is an HR consultant in Marshfield, MA (catherine.bannon@gmail.com). Bannon worked for 10 years in HR management before starting her consulting practice.

SMALL EMPLOYERS BEWARE: YOU CAN BE HELD LIABLE FOR DISCRIMINATION, TOO

Even if you're a small employer that has too few employees to fall under federal or state anti-discrimination laws, you are not completely off the hook for discriminatory conduct...View the full story on our website.

FREE REPORT

Check out the new Free Report, "When Romance Rocks The Workplace," which provides you with practical advice for managing unrequited love, off-hour rendezvous, and superior/subordinate relationships to help ensure that your organization's heart isn't broken in court, along with its piggybank.