U.S Department of Labor Office of Workers’ Compensation Programs
_“ Division of Longshore and

Harbor Workers’ Compensation
200 Constitution Avenue, Room C-4319
Washington, DC 20210

January 25, 2017
INDUSTRY NOTICE No. 160

TO: EMPLOYERS AND INSURANCE CARRIERS UNDER THE LONGSHORE AND HARBOR
WORKERS’ COMPENSATION ACT (LHWCA), AND OTHER INTERESTED PERSONS.

SUBJECT: 2017 increase of civil monetary penalties in accordance with the Federal Civil Penalties
Inflation Adjustment Act Improvements Act of 2015

BACKGROUND: The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 requires
agencies to adjust the levels of existing civil monetary penalties annually based on inflation. Industry
Notice 158, issued on October 14, 2016, provides background on this required annual adjustment. On
January 13, 2017, DOL announced a final rule adjusting penalties for 2017. The rule makes small
upward adjustments to the penalties assessed by the Office of Workers’ Compensation Programs
(OWCP) under the Longshore and Harbor Workers’ Compensation Act.

PURPOSE: The purpose of this Notice is to outline the increased civil monetary penalties as of January
13, 2017.

Section 14 f the LHWCA: Failure to Report Termination of Payments
The penalty amount has increased from $275 to $279. 20 C.F.R. § 702.236 now states:

Any employer failing to notify the district director that the final payment of compensation has been
made as required by § 702.235 shall be assessed a civil penalty in the amount of $279 for

any violation for which penalties are assessed after January 13, 2017. The district director has
the authority and responsibility for assessing a civil penalty under this section.

Sectior f the LHWCA: Penalty for Late Report of Injury or Death
The maximum penalty amount has increased from $22,587 to $22,957. 20 C.F.R. § 702.204 now states:

Any employer, insurance carrier, or self-insured employer who knowingly and willfully fails or
refuses to send any report required by § 702.201, or who knowingly or willfully makes a false
statement or misrepresentation in any report, shall be subject to a civil penalty not to exceed
$22,957 for each such failure, refusal, false statement, or misrepresentation for which penalties
are assessed after January 13, 2017. The district director has the authority and responsibility for
assessing a civil penalty under this section.

When assessing this penalty, the District Director considers how many penalties, if any, have been
assessed against the employer in the previous two years. A graduated penalty schedule is then
consulted as outlined below. However, the District Director has broad discretion to increase or decrease
the amount of the penalty assessed based on aggravating or mitigating factors. The District Director also
considers whether the employer is considered to be a small business as defined by the Small Business
Regulatory Enforcement Fairness Act when determining the penalty amount.

Graduated penalty schedule as of January 13, 2017:
° 1® late report: $500

¢ 2" late report: $1,000

« 3" late report: $2,000


4" late report: $4,000

5" late report: $8,000

6" late report: $16,000

7" late report (& above): $22,957 (statutory maximum)

Section 49 of the LHWCA: Discrimination Against Employees Who Bring Proceedings

The penalty amount has increased from a $2,259 minimum and a $11,293 maximum to a $2,296
minimum and $11,478 maximum. 20 C.F.R. § 702.271(a)(2) now states:

eoee

Any employer who violates this section, and has penalties assessed for such violation after
January 13, 2017, shall be liable for a penalty of not less than $2,296 or more than $11,478 to be
paid (by the employer alone, and not by a carrier) to the district director for deposit in the special
fund described in section 44 of the Act, 33 U.S.C. 944; and shall restore the employee to his or
her employment along with all wages lost due to the discrimination unless the employee has
ceased to be qualified to perform the duties of employment.

Upon notice of an assessed penalty, do not submit the check to the local District Office. Submit the check
to the OWCP/DLHWC National Office in Washington, DC. The check should be made out to the U.S.
Department of Labor and must be submitted within 30 days from the date the penalty was assessed.
Please include the claimant's full name and case number on the check or include a copy of the penalty
assessment letter.

U.S. Department of Labor
OWCP/DLHWC
200 Constitution Ave., N.W.
Room C-4319
Washington, DC 20210

All questions concerning the assessment of penalties should be directed to the local District Office.

Douglas C. Fitzgerald
Director, Division of
Longshore and Harbor Workers’ Compensation