John M. Williams (williams@rwktlaw.com)

Penalties assessed by the Occupational Safety and Health Administration for workplace safety violations will increase sharply in the next few weeks. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 requires federal agencies to annually adjust their penalty assessments to reflect inflation under a new formulation designed to be simpler and more straightforward than the method currently used. The summer of 2016 has been designated as a “catch up” period during which the agencies are to adjust penalties to catch up with inflation since the last adjustment. This adjustment is based on the difference between the Consumer Price Index in October 2015 and the Consumer Price Index in October of the year in which the agency last adjusted its penalties. OSHA’s maximum penalties have not been increased since 1990; thus, OSHA penalties will significantly increase under the new rule. The interim final rule was published on July 1, 2016.

Overall, OSHA will see a 78% increase in penalties. The maximum for a serious violation will increase from $7,000.00 to $12,471.00. Wilful or repeated violations rise from $70,000.00 to $124,709.00. The new penalties apply to any assessment after August 1, 2016 arising from violations occurring after November 2, 2015.

Employers should be aware of these changes and be prepared to see much higher assessments. There is likely to be an increase in the number of contested penalties under the new structure. Alleged violations which may not have been economical to contest in the past will be more likely to end up in litigation.

The public comment period for the new rule runs through August 15, 2016.




John M. Williams (williams@rwktlaw.com)

It’s time again for the 4th July–parades, cookouts, ball games and, of course, fireworks.

When I was a child, my mother often told the cautionary tale of her cousin who lost his fingers (the number varied over time, ranging from a couple to ALL of them) handling fireworks. I never knew the cousin’s name or even if he actually existed. The point of the story, though, was clear: handle fireworks at your own risk. Poor Cousin X learned his lesson the hard way. As I got older, I learned that fireworks are only as safe as the person handling them. I paid little to heed to this, of course.

When I was in high school, my friends and I engaged in sport we called Car Wars. This consisted of driving around shooting bottle rockets at each other’s cars, primarily firing them from our hands. A “kill” was either a shot to the windshield or the more spectacular ordnance through an open window. Burnt hair, flash burns and the occasional eye injury were assumed risks. In other words, we violated every known safety rule. Oh, the fun we had. I do not recommend this as an activity for anyone.

In the summer of 2015, fireworks safety made national news when New York Giants defensive end Jason Pierre-Paul suffered a gruesome hand injury on the 4th July. (WARNING: DON’T LOOK AT ANY PHOTOS OF HIS INJURY UNLESS YOU HAVE A STRONG STOMACH). Pierre-Paul was lighting fireworks when an explosion severely damaged his right hand, jeopardizing his NFL career. Fortunately, Pierre-Paul returned to the field late in the season after multiple surgeries. Tampa Bay cornerback C.J. Wilson lost two fingers in a similar accident on the same day. He retired due to his injury.

We know there are dangers. What can we do?

With approach of the 4th of July, the Occupational Safety and Health Administration has posted a reminder to employers about employee safety handling fireworks. The video Fireworks Safety in Manufacturing and Retail Sales details applicable OSHA regulations and common safety precautions for manufacturing and sales.

Of course, few of us handle large fireworks displays. Most revelers are setting off fireworks in backyards or on streets (or in cars in my case). The American Pyrotechnics Association offers the following tips for safely handling fireworks:

  1. Obey all local laws–fireworks laws vary state-to-state.
  2. Know your fireworks–read instructions before lighting!
  3. A responsible adult should supervise.
  4. Do not drink or drug–celebrate after your show!
  5. Wear safety glasses.
  6. Light one firework at a time and move away quickly.
  7. Set off fireworks in an area away from buildings and vehicles.
  8. Never re-light a dud. Wait 20 minutes and toss it in a bucket of water.
  9. Have a bucket of water and a connected water hose handy.
  10. Don’t carry fireworks in your pocket or fire from a glass container.
  11. Do not use homemade fireworks.
  12. Dispose of spent fireworks in a bucket of water and metal trash can.
  13. Protect pets from fireworks–the noise can terrify many animals.
  14. Don’t point fireworks at people and keep a safe distance away.

While most of this is common sense advice, most of us won’t follow all these tips. The more precautions we take, however, the better off we’ll be. According to the United States Consumer Product  Safety Commission, an average of 230 people per day go to emergency rooms for fireworks injuries around the country during the months surrounding the 4th of July. With even minimal precautions, most of these trips could be avoided.

Jason Pierre-Paul now stars in a public service announcement for fireworks safety. The bottom line is that fireworks injuries are preventable. It’s true that some fireworks are defective. Many years ago, I represented a fireworks retailer in a products liability case. I quickly learned that the quality of fireworks varies wildly depending on the manufacturer. Nevertheless, while some injuries are caused by defective fireworks, most can be prevented by simple precautions.

After reading this, you may react like a childhood friend of mine. He always said that wherever children are laughing and having a good time, some adult is scheming to put an end to it. Remember: It’s all fun and games until someone blows off his hand. Jason Pierre-Paul, C.J. Wilson and my mother’s lamented cousin can attest to that.