In early February, the Occupational Safety and Health Administration (OSHA) slapped Ashley Furniture Industries with nearly $1.8 million in proposed fines for repeat and willful violations. The furniture manufacturer stands accused of exposing workers to amputation hazards, electrical violations, training deficiencies, and other violations at its Arcadia, Wisconsin, manufacturing facility that led to more than 1,000 recordable injuries in just 36 months. Unfortunately for Ashley Furniture, OSHA had already visited the Arcadia facility in 2014 and saw—and cited—many of these same hazards. Both inspections were prompted by amputations that occurred at the factory.

Because many of the hazards OSHA observed had already been identified, but had not been corrected, 12 of the violations that would have otherwise been classified as “serious” are now also classified as “repeat” and “willful,” steeply increasing the penalties and landing Ashley in OSHA’s Severe Violator Enforcement Program. Here’s how OSHA defines “repeat” and “willful” violations and how they affect penalty calculations.

Repeat Violations

Under what circumstances will OSHA classify a violation as a “repeat” violation? OSHA can cite you for a repeat violation if:

  • You’ve been cited for a similar violation within the past 5 years. At one time, OSHA looked at an employer’s enforcement history only for the preceding 3 years, but as of October 1, 2010, the agency will look at your 5-year enforcement history. Any violation that is the same as or very similar to another violation within the previous 5 years may be classified as “repeat.”
  • Another facility within your company has been cited for a similar violation within the past 5 years. OSHA will review your company’s enforcement history in all states under federal jurisdiction. If your facility in Mobile, Alabama, was cited for failing to chock the wheels of semitrailers at its loading docks 3 years ago and an OSHA inspector at your facility in Odessa, Texas, notices the same issue, your Odessa facility may find itself on the hook not only for a serious citation but also for a repeat one.

If your facility is cited for a repeat violation, the penalty can be up to $70,000 per violation. Ashley Furniture was cited for 12 repeat violations at the maximum proposed penalty, accounting for $840,000 of the proposed fines against the employer.

Willful Violations

A willful violation is one committed with intentional, knowing, or voluntary disregard for the law’s requirement, or with plain indifference to employee safety and health. When OSHA has already been at your facility and pointed out a violation that either has not been corrected, or that has been corrected but allowed to reoccur, or that has been allowed to occur on a different piece of equipment or in a different work area, the Agency may begin to believe that you simply do not care about the welfare of workers.

In Ashley’s case, OSHA Director David Michaels issued a statement alleging that Ashley Furniture put productivity and deadlines above safety and blamed injured workers for their injuries rather than addressing unsafe conditions in the workplace, leading to the willful classification (carrying $70,000 maximum penalties) for the cited violations.

Ashley Furniture was cited for 12 willful violations at the maximum proposed penalty, accounting for an additional $840,000 of the proposed fines against the employer.

As a result of the most recent investigation, OSHA placed Ashley Furniture in its Severe Violator Enforcement Program (SVEP). Here’s what that means for Ashley Furniture—and what it could mean for your company if you end up there.

The SVEP

The SVEP is an OSHA National Emphasis Program (NEP) created in 2010 to replace OSHA’s Enhanced Enforcement Program. You may end up in OSHA’s SVEP if you have committed willful, repeated, or failure-to-abate violations in one or more of the following circumstances:

  • A fatality or catastrophic situation;
  • In industry operations or processes that expose employees to the most severe occupational hazards and those identified as “High-Emphasis Hazards”;
  • Exposing employees to hazards related to the potential release of a highly hazardous chemical; or
  • All egregious enforcement actions.

“High-Emphasis Hazards” include fall hazards and hazards identified from OSHA’s National Emphasis Programs that cover amputations, combustible dust, crystalline silica, excavation/trenching, lead, and shipbreaking.

The SVEP was the first of OSHA’s NEPs to require all state plan states to adopt a similar program, and it includes referral procedures to ensure that companies that are enrolled by a state or by federal OSHA in the program will be enrolled companywide at all U.S. locations, not just in a single state or in states under federal jurisdiction.

Ending up in the SVEP will subject your entire company (not just one facility) to:

  • Mandatory follow-up inspections, to ensure compliance;
  • Increased company/corporate awareness of OSHA enforcement, through notification of corporate offices and through national press releases;
  • Corporate-wide enforcement agreements;
  • Enhanced settlement provisions that affect the entire company and that include requirements not ordinarily included in OSHA settlements, such as requiring the submission of injury and illness logs to OSHA’s regional offices; and
  • The threat of federal court enforcement.

For more information or assistance with your Environmental and Health & Safety regulatory compliance needs, contact Ralph Carito at Total Environmental & safety, LLC (Total) at rcarito@TotalEnviron.com or 908-442-8599.