North Carolina § 95-138 - Civil penalties.

§ 95-138. Civil penalties.

The Commissioner, upon recommendation of the Director, or the North Carolina Occupational Safety and Health Review Commission in the case of an appeal, shall have the authority to assess penalties against any employer who violates the requirements of this Article, or any standard, rule, or order adopted under this Article, as follows: A minimum penalty of five thousand dollars ($5,000) to a maximum penalty of seventy thousand dollars ($70,000) may be assessed for each willful or repeat violation. A penalty of up to seven thousand dollars ($7,000) shall be assessed for each serious violation, except that a penalty of up to fourteen thousand dollars ($14,000) shall be assessed for each serious violation that involves injury to an employee under 18 years of age. A penalty of up to seven thousand dollars ($7,000) may be assessed for each violation that is adjudged not to be of a serious nature. A penalty of up to seven thousand dollars ($7,000) may be assessed against an employer who fails to correct and abate a violation, within the period allowed for its correction and abatement, which period shall not begin to run until the date of the final Order of the Commission in the case of any appeal proceedings in this Article initiated by the employer in good faith and not solely for the delay of avoidance of penalties. The assessment shall be made to apply to each day during which the failure or violation continues. A penalty of up to seven thousand dollars ($7,000) shall be assessed for violating the posting requirements, as required under the provisions of this Article. The Commissioner shall adopt uniform standards that the Commissioner, the Commission, and the hearing examiner shall apply when determining appropriateness of the penalty. The following factors shall be used in determining whether a penalty is appropriate: Size of the business of the employer being charged. The gravity of the violation. The good faith of the employer. The record of previous violations; provided that for purposes of determining repeat violations, only the record within the previous three years is applicable. Whether the violation involves injury to an employee under 18 years of age. The clear proceeds of all civil penalties and interest recovered by the Commissioner, together with the costs thereof, shall be remitted to the Civil Penalty and Forfeiture Fund in accordance with G.S. 115C-457.2. The report of the hearing examiner and the report, decision, or determination of the Commission on appeal shall specify the standards applied in determining the reduction or affirmation of the penalty assessed by the Commissioner. History (1973, c. 295, s. 13; 1987 (Reg. Sess., 1988), c. 1111, s. 12; 1989 (Reg. Sess., 1990), c. 844; 1991, c. 329, s. 1; c. 761, s. 17; 1993, c. 474, s. 2; 1998-215, s. 111; 2004-203, s. 39(a); 2005-133, s. 8; 2006-39, s. 3; 2009-351, s. 4.) Editor's Note. - Session Laws 2005-133, s. 1, as amended by Session Laws 2006-226, s. 30, effective June 29, 2005, provides: "Under the Occupational Safety and Health Act of North Carolina, the name of the Safety and Health Review Board is changed to the North Carolina Occupational Safety and Health Review Commission. The Revisor of Statutes is authorized to substitute the term 'Commission' for the term 'Board' wherever that term appears in the General Statutes in relation to the Act. The Revisor of Statutes is also authorized to insert the words 'North Carolina Occupational' in front of the phrase 'Safety and Health Review Commission' wherever that phrase appears in the General Statutes in relation to the Act." Effect of Amendments. - Session Laws 2004-203, s. 39.(a), effective October 1, 2004, and applicable to violations occurring on or after that date, rewrote the section. Session Laws 2005-133, s. 8, effective June 29, 2005, inserted "or the North Carolina Occupational Safety and Health Review Commission in the case of an appeal" in the introductory paragraph of subsection (a); and substituted "Commission" for "Board" in the first and last paragraphs of subsection (b). Session Laws 2006-39, s. 3, effective June 30, 2006, in the introductory paragraph of subsection (a), substituted "shall have the authority to assess" for "may assess" preceding "penalties against any" and substituted "adopted under" for "promulgated pursuant to" following "or any standard, rule, or order"; added "may be assessed" following "seventy thousand dollars ($70,000)" in subdivision (a)(1); rewrote subdivision (a)(2); added subdivision (a)(2a); in subdivision (a)(3), rewrote the first sentence and added the last sentence; and rewrote subdivision (a)(4). Legal Periodicals. - For article, "Proving Violations or Proving Affirmative Defenses Under the Occupational Safety and Health Act of North Carolina," see 18 N.C. Cent. L.J. 99 (1989). For a survey of 1996 developments in constitutional law, see 75 N.C.L. Rev. 2252 (1997).