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October 6, 2011

Enforcement policies for employers with repeat violations could cost Sears, Roebuck and Co. $127,000 in fines proposed by the Department of Labor’s Occupational Safety and Health Administration.

The penalty against Sears is part of a trend whereby OSHA issues large fines for repeat violations against retail chains for violations that occurred in different stores. While a serious violation carries a maximum fine of $7,000, when the same alleged violation is found again at any other store in a chain, the maximum fine is $70,000.

Another factor leading to the repeat citations is a change in OSHA policy. Until October 2010, OSHA had looked at inspection records going back three years to determine whether a violation was a repeat. With the start of fiscal 2011, OSHA began looking at violations over the prior five years.

In this latest case, a Sears store in Huntsville, Ala., was fined for one alleged repeat and two alleged serious violations of OSHA standards found during inspections in March and August, according to OSHA’s Sept. 29 announcement.

None of the repeat violations involved prior problems at the Huntsville store. Instead, OSHA pointed to prior violations at stores in New Hampshire, New York, Ohio, and Pennsylvania going back to 2007 as the reason the Huntsville store faces stiffer fines as a repeat violator.

Sears has previously challenged significant penalties, OSHA records show. In 2005, the chain was hit with a $135,000 fine for two willful violations for allowing workers to ride on platforms carried by forklifts, and two serious violations. After Sears appealed to an administrative law judge, the case was settled for $70,000, and the willful and serious violations were stricken.

OSHA’s Field Operations Manual explains that an employer may be cited for a repeat violation if the businesses were cited previously for the same or “substantially similar condition or hazard,” and the previous citation became a final order.

 “The higher [repeat] penalty provides incentive to management to assure that the same violations do not recur or exist at the employer’s other worksites,” the statement said. “OSHA area directors do have discretion to reduce the characterization of the citation depending on the employer’s circumstances, including the employer’s good faith efforts to assure that the violation does not recur.”

Baruch Fellner, a partner at the Washington, D.C., law firm of Gibson, Dunn & Crutcher, who was not involved in the Sears case, said that although OSHA can issue repeat citations when the allegations involve different stores, the practice incorrectly assumes a chain’s regional or district managers control individual stores down to the level of making sure aisles are clear.

The Sears allegations could seem routine if they were not treated as repeats.

Among the Sears repeat violations is one for blocked exit routes. Employees did not have “unobstructed access” to exit routes because of merchandise, store fixtures, and displays blocking the routes, the citations say. Because OSHA fined other Sears stores in 2007 and 2009 for similar violations, the penalty for this infraction is $55,000.

The other repeat citations are for an alleged lack of exit signs designating the routes, and for merchandise improperly stacked on warehouse shelves that could fall and hit workers. The proposed fine for each citation is $27,500.

The drugstore chain Rite Aid faces a $121,000 proposed penalty because several hazards identified at one Rite Aid store in Brooklyn, N.Y., are similar to those cited at other Rite Aid stores in the Bronx and in Rome, N.Y., in 2007 and 2008, OSHA said in September .

A Lowe’s Home Centers store in Castle Rock, Colo., faces a proposed fine of $82,700 for 13 alleged safety violations, including seven repeat violations. Five of the seven repeat violations involve problems that were found previously at other stores in Fort Myers, Fla., and in Hamilton, Ohio. The remaining two repeat violations follow citations for a Lowe’s store in Colorado Springs and a store in Derby, Kan. 10-05-2011. Bureau of National Affairs.

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