OAR 437-001-0150: Civil Penalty Adjustments

(1) Civil penalty amounts may be modified by applying penalty adjustments as outlined in Table 1 – Penalty Adjustments. Not all civil penalties are eligible to be adjusted. If eligible for adjustments, at their discretion, a compliance officer may make adjustments at the time of inspection based on history, good faith, and immediate correction. [Insert Table 1] (2) Size adjustments: (a) Are made based on statewide peak employment for the employer as defined in Table 2 except as provided in subsection (b): [Insert Table 2] (b) For employers with 50 or fewer employees, a reduction of $7,000 is available for Serious Physical Harm or Death-rated repeat violations that did not cause or contribute to a work-related fatality. The reduction is adjusted annually in accordance with OAR 437-001-0142. (c) Size reductions are not available for a violation that caused or contributed to a work-related fatality, except for a civil penalty for a repeat serious violation that caused or contributed to a work-related fatality, which may be reduced based on employer size at the discretion of the administrator if the employer agrees to comply with additional abatement measures during the appeal process. (3) History adjustments will be based on injuries and illnesses (and trends) during the previous three years, including available information from both Workers’ Compensation Board data and Bureau of Labor Statistics. This assessment will also include a review of the employer’s violation history within the past three years. The compliance officer may make the following adjustment: (a) 10% reduction of the first-instance penalty if the compliance officer determines that the information demonstrates a positive history overall; (b) No change in the first-instance penalty if the compliance officer determines that history is what would be expected of a typical employer; or (c) 10% increase of the first-instance penalty if the compliance officer determines that the information demonstrates a negative history overall. (4) Good faith adjustments will be determined by, but not limited to, review of certain criteria as follows: (a) Evidence of an overall safety and health program. (b) Effective communication of safety and health policies. (c) Promotion of safety and health prior to the inspection. (d) Employees are clearly involved in the safety and health program. (e) Management’s commitment at all levels is apparent. (f) Worksite hazard analysis is conducted. (g) Employees and managers alike are held accountable for safety and health. (h) The compliance officer may make good faith adjustments as follows: (A) 20% reduction of the first-instance penalty if the compliance officer determines that the information demonstrates a better than average effort to comply with the law and rules; (B) No adjustment in the first-instance penalty if the compliance officer determines that the information demonstrates an employer’s good faith effort is average; or (C) 20% increase of the first-instance penalty if the compliance officer determines that the information demonstrates a poorer than average effort to comply with the law and rules. (5) Immediate correction of violations or other unsafe conditions that are identified during the inspection. Corrective action must be substantial and not temporary or superficial. A 10% reduction of the first-instance penalty may be provided for immediate correction as determined by the compliance officer. (6) Penalty adjustments will not result in a penalty amount less than the mandatory minimum civil penalty or greater than the maximum civil penalty as published in OAR 437-001-0145(2) as adjusted annually in accordance with OAR 437-001-0145. [ED. NOTE: To view attachments referenced in rule text, click here to view rule.]