OSHA Charges Retail: Higher Fines for Repeat Violations Across Multiple Locations

by Holland & Knight LLP

  • The Occupational Safety and Health Administration's policy of assessing safety violations on a company-wide basis is in full force. OSHA is assessing the higher penalties associated with repeat safety violations made by multi-location employers, including retail chains.
  • There are several steps companies can take to avoid repeat violations and decrease the likelihood of coming under OSHA scrutiny.

The Occupational Safety and Health Administration (OSHA) continues to enforce its policy of assessing safety violations on a company-wide basis. As a result, OSHA has assessed the higher penalties associated with repeat safety violations where a multi-location employer, such as a large retail chain, has two or more similar violations of the Occupational Safety and Health Act ("Act") at any of its locations within a five-year period, rather than issuing citations and assessing penalties for repeat violations occurring at the same facility.

Despite increasingly heavy criticism, OSHA has remained resolute in defending the need for this enforcement practice. In fact, OSHA's inspectors, under the directives of its June 2013 enforcement memorandum, are paying closer attention to blocked aisles and exit routes at retail stores.

(See this previous Holland & Knight alert for additional coverage of this topic.)

Forever 21: OSHA Doubles Down on Safety Complaints in New York and New Jersey

Forever 21, Inc., headquartered in Los Angeles, is a fast-fashion retail clothing chain for men and women. According to Forbes, the company, which has annual revenues of nearly $4 billion and 30,000 employees, operates nearly 500 stores across the United States, Canada, Europe and Asia (under the names Forever 21, XXI Forever, For Love 21, Heritage 1981 and Reference).

On January 7, 2014, OSHA announced that several days earlier it cited Forever 21 for seven separate violations found at both Forever 21's Paramus, New Jersey and Times Square, New York City locations. OSHA inspected the stores in July 2013 after receiving complaints concerning various safety hazards. The proposed fines levied by OSHA against Forever 21 total $236,500. At the Paramus store, OSHA cited Forever 21 for four repeat violations (for obstructed exit routes, an unmounted fire extinguisher, and boxes and other material not securely stored against fall or collapse. It also uncovered fluorescent lighting exposed to contact and breakage. At the Times Square store, OSHA cited Forever 21 for two repeat violations (obstructed exit routes and uncovered fluorescent lighting exposed to contact and breakage) and a serious violation for failure to keep the store clean and orderly. As for the repeat violations issued at the Paramus and Times Square locations, OSHA relied upon predicate violations that occurred at both a New Jersey store (not the Paramus location) more than a year earlier, and at a New York City store (not the Times Square location), nearly two years earlier.

According to OSHA, since 2012, Forever 21 has also been previously cited for various exit access violations in Nevada and Massachusetts (in addition to New Jersey). Forever 21 has 15 business days from receipt of the citations and proposed penalties to: (1) comply, (2) meet informally with OSHA's area director and perhaps work out a settlement, or (3) contest the findings in whole or in part before the independent Occupational Safety and Health Review Commission.

The Forever 21 case, out of OSHA's Region 2 (covering New Jersey, New York, Puerto Rico and the Virgin Islands), were the latest citations in a recent rash of violations issued out of New York-area offices for safety hazards concerning exit access at retail stores. In the last year, major retail operators have been cited and fined for exit obstructions and blockages, including for repeat violations occurring at different locations.

Why OSHA's Policy on Repeat Violations Matters

Since April 29, 2010, OSHA's stated policy concerning the issuance of repeat violations allows the agency to assess a repeat violation against a multi-location company if it has found the same or similar unsafe condition at any other location operated by the same company within the previous five years — no matter the size or scope of its geographical presence and the breadth of the company’s products or service lines. A repeat violation carries a mandatory fine of up to $70,000 for each violation. (By comparison, a "serious" violation, one where there is a substantial probability that death or serious physical harm could result from the hazard, and that the employer knew or should have known of the hazard, carries a mandatory penalty of up to $7,000 for each violation.)

For Forever 21, OSHA proposed a penalty of $66,000 for one of the four repeat violations at the Paramus store, and a penalty of $70,000 for one of the two repeat violations at the Times Square store. About the repeat violations at Forever 21 locations, Robert Kulick, an OSHA Regional Administrator, said "It is unacceptable for Forever 21 to continue repeating these violations and, which are common among retailers, and put workers at serious risk. Retail managers have a legal responsibility to inspect their stores, identify potential hazards and quickly eliminate them to ensure worker safety health."

Clearly, the larger the chain of retail outlets, the greater the challenge for the company in ensuring that certain hazards never occur in any location.

The Takeaway: Avoiding Repeat Violations

Although OSHA has various enforcement initiatives and programs focused on both certain high-risk industries and targeting those employers with poor safety records, avoiding repeat violations is an objective every multi-location employer should make a top safety priority in 2014. Being cited for repeat violations is one sure way to place a multi-facility company squarely within OSHA's crosshairs, even if only a few or even one of the many locations have proven noncompliant with the Act.

Key to avoiding, if not eliminating, repeat violations for multi-facility companies starts and ends with education, communication and timely and regular information sharing across the company, both vertically and horizontally.

It is of paramount importance in a multi-facility operation — especially in the retail industry, where each facility is by and large operating in the same dynamic manner — to take affirmative action:

  • put in place a safety director to coordinate education, training and compliance initiatives
  • if feasible, designate regional safety officers to self-evaluate the stores in their regions, regularly confer with each another and report to the national safety director
  • appoint a safety representative at each location to regularly monitor the local operation for safety compliance and report regularly to the company’s regional safety officers
  • share safety information — especially arising out of any OSHA inspections or citations — with all regional officers, and discuss that information, to immediately address and eliminate underlying potential or actual existing hazards at other locations
  • dedicate, update and make available real-time electronic databases to those charged with safety compliance company-wide, to allow for expedient remediation and abatements of hazards before any complaint is made to OSHA or before any accident leading to serious injury occurs

Taking these steps will undoubtedly pay dividends for large employers in avoiding OSHA scrutiny and costly repeat violations.

Written by:

Holland & Knight LLP

Holland & Knight LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.