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The federal Occupational Safety and Health Administration is raising its penalties for the first time in 25 years. It’s one of a number of major changes ahead for employers, and with it comes talk of legal challenges.

Some legal observers are warning the new higher maximums could be applied retroactively, which would to questions of due process and ex post facto. This likely wouldn’t happen in Oregon, but as more and more firms are extending their reach beyond their home state, it has people here talking about a new standard for due process.

But it’s unlikely to happen in this state, according to Aaron Corvin, spokesman for Oregon OSHA. The new maximums will become effective only after the Legislature approves them in its next session, he said. The agency will not apply the penalties retroactively, he said.

That’s because Oregon is one of 22 states with an OSHA-approved 鈥渟tate plan,鈥� meaning its safety and health laws are the purview of a state-run agency rather than the federal program. Guiding each of these state plans is the phrase 鈥渁t least as effective鈥� 鈥� a mandate that all their policies and programs at least meet federal OSHA requirements. Oregon will adjust penalties upward, but won’t begin applying the new rates until after state lawmakers give their approval, Corvin said.

Contained in the Bipartisan Budget Act of 2015 is a requirement for some federal agencies to adjust their civil penalty rates based on inflation. Backers felt it was important for regulatory fines to remain a credible deterrent to bad behavior. OSHA most recently increased its penalties in 1990.

Across the country, in states without state plans, OSHA’s penalties will increase by 78 percent when they become effective Aug. 1. Fines for 鈥渟erious鈥� violations will rise from $7,000 to $12,471. Fines for 鈥渞epeat鈥� and 鈥渨illful鈥� violations will jump from $70,000 to $124,709.

Here in Oregon, this won’t happen any earlier than January 2017, when the Legislature next meets. The specifics of the bill aren’t yet known, said Corvin.

鈥淎nd it’s also worth noting that we’re not going to go back and apply new maximums to citations that already have been issued,鈥� Corvin said.

Laws that forbid actions someone has already taken are known as ex post facto laws and in the U.S. are forbidden by the Constitution. Former Oregon supreme and appellate court justice W. Michael 鈥淢ick鈥� Gillette said it’s important to consider that Congress’ motivation in passing the increases was to ensure that violations of safety rules don’t become cheaper and cheaper.

鈥淚f something is already a violation of the law and the only question is what consequence in money flows from it, that doesn’t carry with it quite the same concern,鈥� he said. 鈥淎nd because these raises are based on inflation, it seems to me what Congress is really saying (is) we don’t (want) to punish anybody any more in real dollars than they would have been punished before.鈥�

The promise of due process 鈥� that a person’s life, liberty and property cannot be taken without due process of law 鈥� appears in the constitution in the Fifth Amendment and is later echoed in the 14th. Americans are entitled to certain procedures and warnings before a fine is imposed. The country’s founders weren’t thinking about this problem at all, according to Gillette.

鈥淭he concept of what due process of law was was in no sense settled,鈥� he said. 鈥淚t may have been settled in each of the minds of the men 鈥� and it was all men 鈥� who voted in favor of the two different amendments, but if you’d have sat them down in a room and quizzed them, they wouldn’t have all agreed with respect to how due process actually played out.鈥�

Unlike most states, Oregon doesn’t have a due process clause in its constitution. It takes its signals from the federal clause. Gillette was on the supreme and appellate courts for many due process-related cases, but they tended to be around the subject and not on it. This prevented each court from making a ringing positive statement with regard to what due process required in Oregon.

States have different laws regarding safety, and firms would be wise to internalize those of whatever they work in, because ignorance of the law is no excuse, said Elaine Fischer, spokeswoman for the Washington Department of Labor and Industries.

鈥淲hen it comes to safety, they have to follow our rules when they work in our state,鈥� she said.