Types Of Violations
A willful violation is marked by careless disregard of a standard or employee safety. The violation is characterized by intentional, knowing or voluntary (as opposed to accidental) conduct that demonstrates a careless disregard or plain indifference to the law. If an employer is aware that a hazardous condition exists and makes no reasonable effort to eliminate it, they may be cited for a willful violation.
A serious violation exists when the workplace hazard could cause an accident or illness, which would most likely result in death or serious physical harm unless the employer did not know or could not have known of the violation.
An employer may be cited for a repeated violation if that employer has been cited previously for a substantially similar condition, and the citation has become a final order. A citation is viewed as a repeated violation if it occurs within five years either from the date that the original citation becomes a final order or from the final correction date, whichever is later. For purposes of determining whether a violation is repeated, the following criteria apply:
FIXED ESTABLISHMENTS: Citations issued to employers that have fixed establishments (e.g., factories, terminals, stores), are limited to the cited establishment. A multi-facility employer, for example, would not be cited for a repeated violation if the violation recurred at a plant other than the one previously cited.
NONFIXED ESTABLISHMENTS: For employers engaged in business having no fixed establishments (e.g. construction sites, oil, and gas drilling sites), repeated violations are alleged based on prior violations occurring anywhere within the Commonwealth of Kentucky.
A violation that has a direct relationship to job safety and health, but is not serious in nature, is classified as "other."
Chapter 338 of the Kentucky Revised Statutes mandates that penalties be assessed for each willful, repeated and serious hazard cited. The Kentucky Legislature has provided that penalties of up to $70,000 will be assessed for each willful and repeated hazard cited, and that a proposed penalty of up to $7,000 may also be assessed for any "serious" or "other" type hazard and/or for not abiding by posting requirements (see Posting Requirements).
The proposed penalty that is shown on the citation is calculated based on such factors as the number of employees exposed to the hazard, the duration of exposure, employee proximity to the danger zone and the severity of the injury or illness. Credits to the penalty can be granted for the past history of the employer, good faith shown and size of the company (based on the number of employees).
In addition, Chapter 338 mandates that a penalty is assessed for each hazard not corrected within the assigned period of up to $7,000 per day. Also, any employer or individual who knowingly makes any false statement, representation or certification in any application, record, report, plan or other document file required to be maintained shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for no more than six months, or by both.
ABATEMENT OF THE HAZARD DOES NOT DISMISS, DELETE OR REDUCE THE PENALTY FOR CORRECTING THE HAZARD WITHIN THE ABATEMENT PERIOD, THE COMPANY ABSOLVES ITSELF OF ADDITIONAL PENALTIES FOR FAILING TO CORRECT THE VIOLATIONS ORIGINALLY CITED.
When you receive a "Citation and Notification of Penalty," you must immediately post the citation (or copy of it) at or near the place each violation occurred to make employees aware of the hazards to which they may be exposed. The citation must remain posted for three working days or until the violation is corrected, whichever is longer. (Saturdays, Sundays, and federal and state holidays are not counted as working days). YOU MUST COMPLY WITH THESE REQUIREMENTS EVEN IF YOU CONTEST THE CITATION.
An employer that receives a citation, may take either of the following courses of action:
- Correct the condition by the date set in the citation and pay the penalty, if one is proposed.
- Within 15 working days of the receipt of the citation, contest any or all of the following:
- Proposed penalty
- Abatement date
How To Comply
For violations you do not contest, you should: (1) promptly notify the Division of OSH Compliance by letter that you have taken the appropriate, corrective action within the time set forth in the citation, and (2) pay any penalties itemized therein (checks are to be made payable to the Kentucky State Treasurer and sent to the Kentucky Education and Labor Cabinet). The notification you send the division is generally referred to as a "Letter of Corrective Action." It should explain the specific action taken with regard to each violation and state the date each corrective action was taken.
When the citation permits an extended time for abatement, you must ensure that employees are adequately protected during this time. For example, the citation may require the immediate use of personal protective equipment by employees while is the case, you must also provide the Division of OSH Compliance with periodic progress reports on your action.
The penalties itemized on the "Citation and Notification of Penalty" are payable within 15 working days of receipt of the penalty notice. However, if you contest the citation or penalty in good faith, abatement and payment of penalties for those items contested are suspended until the Kentucky Occupational Safety and Health Review Commission reviews your case and issues a final order. The review commission is an independent agency and is not part of the Division of OSH Compliance. The final order of the commission will either uphold, modify or eliminate the penalties. However, penalties for items not contested are still due within 15 working days. For further details, see the section on HOW TO CONTEST.
Payment should be made by check or money order, payable to Kentucky State Treasurer. Please indicate on your payment the number found on the upper right-hand corner of your citation and send it to the Division of OSH Compliance, Kentucky Education and Labor Cabinet.
If you should find that you are in need of technical assistance to comply with the regulations, such assistance can be obtained by contacting the Division of Education and Training.
Before deciding whether to file a "Notice of Contest," you may wish to request an informal conference to discuss the "Citation and Notification of Penalty." You may use this opportunity to:
- Discuss ways to correct the violations.
- Discuss problems with the abatement dates.
- Discuss problems concerning employee safety practices.
- Obtain answers to any other questions you may have.
- You are encouraged to take advantage of the opportunity to have an informal conference if you foresee any difficulties in complying with any part of the citation. Please note, however, that an informal conference will not extend your 15-working-day period in which to file a Notice of Contest.
IF YOU DO NOT CONTEST WITHIN 15 WORKING DAYS, YOUR CITATION WILL BECOME A FINAL ORDER OF THE KENTUCKY OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION AND NOT SUBJECT TO REVIEW BY ANY AGENCY.
How To Contest
An employer who wishes to contest any portion of his or her citation must notify Kentucky's commissioner of Labor, in writing, within 15 working days after receipt of the penalty notification.
The "Notice of Contest" must clearly state what is being contested - the citation, the penalty, the abatement date or any combination of these factors. In addition, the notice should state whether all the violations on the citation or just specific violations, are being contested. (For example, "I wish to contest the citation and penalty proposed for items 3 and 4 of the citation issued June 27, 1992.")
A proper contest of any item suspends your obligations to abate and pay until the item contested has been judicially resolved. If you contest only the penalty, you must still correct all violations by the dates indicated on the citation. If only some items on the citation are contested, the other items must be corrected by the abatement date and the corresponding penalties paid within 15 days of notification.
After you file a Notice of Contest, your case is officially in litigation. If you wish to discuss settlement of the case, you may contact the Office of Legal Services, Labor Legal Division. All settlements of contested cases are negotiated between you and the attorney according to the rules of the procedure of the Kentucky Occupational Safety and Health Review Commission.
The Contest Process
If the Notice of Contest has been filed within the required 15 working days, the Division of OSH Compliance forwards your case to the Kentucky Occupational Safety and Health Review Commission.
The commission assigns the case to an administrative hearing officer who usually will schedule a hearing in a public place as close as possible to your workplace. Both employers and employees have the right to participate in this hearing which contains all the elements of a trial, including examination and cross-examination of witnesses. You may choose to represent yourself, or be represented by an attorney. The hearing officer may affirm, modify or eliminate any contested item of the citation or penalty.
As with any other legal procedure, there is an appeals process. Once the hearing officer has ruled, any party to the case may request a further review by the full review commission. In addition, any of the three commissioners may, on his or her own motion, bring the case before the entire commission for review. The commission's ruling, in turn, may be appealed to the Franklin County Circuit Court.
How To File For An Extension Of Abatement Period
Abatement dates are assigned on the basis of the best information available at the time the citation is issued. When you are unable to meet an abatement date because of uncontrollable events or other circumstances, you may request an extension of the abatement period.
The request must be in writing and must be submitted no later than one working day after the abatement date. To show clearly that you have made a good-faith effort to comply, it must include all of the following information:
- Steps you have taken in an effort to achieve compliance and dates they were taken.
- Additional time you need to comply.
- Why you need additional time.
- Interim steps you are taking to safeguard your employees against the cited hazard(s) until abatement.
Employee or Representative of Employee Options
Employees or their authorized representatives may contest any citation, penalty or abatement period. This notice of contest must be filed with the Kentucky Labor Cabinet within 15 working days after the employer receives the citation.
In cases where the employer has contested, employees have the right to file for party status before the Kentucky OSH Review Commission.
The filing of an employee contest does not suspend the employer's obligation to abate.
Follow-Up Inspection And Failure To Abate
If you receive a citation, a follow-up inspection may be conducted to verify that you have:
- Posted the citation as required.
- Corrected the violations as required in the citation.
- Adequately protected employees during multi-step or lengthy abatement periods.
In addition to providing for penalties for failure-to-post citations and failure-to-abate violations, the law clearly states that you have a continuing responsibility to comply with the law and assure your employees of safe and healthful working conditions. Any new violations discovered during a follow-up inspection will be cited.
To achieve abatement by the date set forth in the citation, it is important that abatement efforts be promptly initiated.
For further information and assistance contact:
Kentucky Office of Occupational Safety and Health, Division of Compliance
Director of Compliance
Kentucky Labor Cabinet
500 Mero Street, 3rd Floor
Frankfort, KY 40601