Employers wary of OSHA's public shaming tactics for severe violatorsPosted On: Mar. 24, 2016 12:00 AM CST
The U.S. Occupational Safety and Health Administration is stepping up its enforcement against severe workplace safety violators, raising concerns about publicly shaming employers and the large number of small employers on the list.
“Basically, there's no end in sight (to the OSHA regulatory action) under the (Severe Violator Enforcement Program) and people need to be aware of that,” said Valerie Butera, a Washington-based member of the labor and employment practice of Epstein Becker & Green P.C.
OSHA's severe-violator program focuses on inspecting employers that the agency says have demonstrated indifference to their Occupational Safety and Health Act obligations through willful, repeated or failure-to-abate violations.
The agency generally issues news releases when it puts an employer in the severe-violator program, as it does when it proposes penalties of more than $40,000 against an employer, both of which occur before employers can contest the citations, attorneys said.
“SVEP is a lot like the (OSHA) press releases in the sense that it is a public shaming program, and you don't want to be on an SVEP list,” said Punam Kaji, a Houston-based attorney at Haynes & Boone L.L.P. “They see this a strong deterrent measure and that employers, at a minimum, don't want to end up in the SVEP.”
There have been 520 cases since the current program was launched in June 2010, with about 25% of the cases involving employee fatalities, according to a program update provided by Thomas Galassi, OSHA's Washington-based director of enforcement programs, who spoke at the Occupational Safety and Health Law Committee conference in Santa Barbara, California earlier this month.
• More than 60% of cases under OSHA's severe-violator program involve construction industry employers.
• About 16% of the construction industry severe-violator cases involve employee fatalities.
• About 7% of all severe-violator cases are classified by OSHA as egregious.
• About 17% of severe-violator cases are being contested by employers.
There has been “a very strong message OSHA's going to continue to increase enforcement, especially with the severe-violators program,” said Ilana Morady, a San Francisco-based associate at Seyfarth Shaw L.L.P. “I think the message was, 'We're going to be getting harder and harder on employers.' ”
The agency now is updating the program's directive, which it anticipates completing this fiscal year, and plans to change the start of the three-year clock to be removed from the severe-violator program from the final disposition date of the case, meaning the final order of citations, to the later receipt of final verification of abatement — a change the agency said will encourage prompt abatement of hazards.
In February 2015, OSHA added upstream oil and gas hazards and grain-handling operations to the list of high-emphasis hazards in the program. Over the past 25 years, upstream operations have experienced a fatality rate ranging from five to eight times greater than the national average while 26 workers died in grain bin entrapments in 2010 — the highest number on record, according to the agency.
Small employers over-represented?
Small employers represent the bulk of severe-violator cases, with about 75% having 100 or fewer employees and roughly 55% having 25 or fewer employees.
“They may have less sophisticated safety programs or fewer resources to ensure safety measures are being implemented consistently across different worksites or facilities,” Ms. Morady said. “That can be very troubling because smaller employers don't have a deep pocket, so if they get hit by significant fines or they're placed in the severe-violator program that can sometimes be the end of the company's existence.”
OSHA's regional offices have reported 103 enhanced settlement agreements since its 2010 start, which require employers to implement measures beyond basic hazard abatement to ensure compliance at a cited facility and related facilities, such as providing safety training and regularly conducting safety and health audits.
“I do think a lot of employers feel pressured to enter into those (agreements) just to settle cases and move on,” Ms. Morady said.