The Employer, in United States v. The Red Coach Restaurant, 10 OCAHO no. 1200 (2013), appealed an ALJ's decision over several matters, including the refusal of the ALJ to mitigate the penalties by 5% because Red Coach did not have a history of previous violations. The Employer asserted OCAHO "must" mitigate the penalties in this situation. OCAHO stated this could be a factor in the decision-making process but there is no requirement of mitigation based on no history of previous violations. OCAHO cited several cases in support of their position. From counsel's position, this means you should seek mitigation for this factor, especially in settlement negotiations, but be aware it is not required to be utilized as a mitigating factor.