By Eric J. Conn, Head of the OSHA Practice Group
On June 18, 2010 OSHA replaced its much-maligned Enhanced Enforcement Program (EEP) with a new and equally problematic initiative called the Severe Violator Enforcement Program (SVEP). The SVEP is intended to focus OSHA’s enforcement resources on those employers whom OSHA believes demonstrate indifference to their OSH Act obligations by committing certain types of violations, including:
- Any violation categorized as “Egregious”;
- One or more Willful, Repeat or Failure-to-Abate violations associated with a fatality or the overnight hospitalization of three or more employees;
- Two or more Willful, Repeat or Failure-to-Abate violations in connection with a high emphasis hazard (generally speaking, the subjects of OSHA’s special emphasis programs, including falls, amputations, grain handling, etc.); or
- Three or more Willful, Repeat or Failure-to-Abate violations related to Process Safety Management (prevention of the release of a highly hazardous chemicals).
According to an attorney with OSHA’s Solicitor’s office, employers are not added to the SVEP immediately upon receipt of citations meeting these criteria, but rather, are deposited in the Program within fifteen working days of receipt of the citations upon either a settlement at an Informal Settlement Conference, or the filing by the employer of a notice of contest challenging the validity of the citations. More than two-thirds of SVEP cases are contested by the cited employer, and of the 200+ contested SVEP cases, nearly half of those contests remain open today. As a result, some employers have been on the list for more than two years despite OSHA not proving that the employer violated the law at all, let alone in a way that meets the extreme qualifying criteria of the SVEP. The constitutional due process implications of the SVEP are glaring.
Once an employer is added to the SVEP (again just based on unproven allegations), the company is immediately subject to the punitive elements of the Program, including mandatory follow-up inspections at the facility where the SVEP-qualifying citations were issued, as well as at sister facilities throughout the enterprise. The issuance of SVEP-qualifying citations also comes with a heavy dose of public shaming by the Department of Labor. Specifically, with every SVEP citation comes a public press release issued by OSHA, which now includes an inflammatory quote from a high-ranking OSHA or Department of Labor representative about the employer. The Assistant Secretary of Labor for OSHA and his senior staff refer to these press releases as a campaign of “Regulation by Shaming.” The SVEP press releases and an embarrassing public log of all employers in the SVEP are available on OSHA’s website.
The final problematic element of the SVEP has always been the manner in which employers can (or cannot) be removed from the Program once they get in. For more than two years, OSHA operated the SVEP without providing employers any way out of the Program, other than by eliminating the underlying SVEP-qualifying citation through the multi-year contest process or persuading OSHA to withdraw the qualifying citations in a settlement. After much clamoring from industry, OSHA finally released a press release summarizing a memorandum from the Director of Enforcement Programs to the Regional Administrators on August 16, 2012, which set forth a series of removal criteria.
The memo provided a framework for getting out of SVEP, but the extremely harsh removal criteria provide little relief to employers. The memo explains that:
“[A]n employer may be removed from the SVEP after a period of three years from the date of final disposition of the SVEP inspection citation items. Final disposition may occur through failure to contest, settlement agreement, Review Commission final order, or court of appeals decision.” Of course, it is not as easy as just waiting those 1095 days from a Final Order. Employers must have also “abated all SVEP–related hazards affirmed as violations, paid all final penalties, abided by and completed all settlement provisions, and not received any additional Serious citations related to the hazards identified in the SVEP inspection at the initial establishment or at any related establishments.”
If employers fall short of any of these requirements, they will have to wait an additional three years to be considered for removal. Even if the employer does meet all the criteria, removal from SVEP is not guaranteed. In all cases with the exception for those involving corporate-wide settlements, the Regional Administrator has the final say as to whether an employer is removed from the program. That discretionary decision is based on vague, undefined factors related to follow-up inspections and enforcement data. Employers who agreed to corporate-wide settlements are reviewed for removal by the Director of Enforcement Programs (“DEP”) in OSHA’s National Office.
There are two aspects of these removal criteria that make them unduly harsh? First, under these guidelines, employers are punished for exercising their rights to challenge OSHA citations. By dumping employers into the SVEP before a Final Order, and then not starting the removal clock until after a Final Order, employers with legitimate disagreement about the underlying citations face the choice of trying to prove their innocence (in a process that can take several years), while remaining publicly branded as a “Severe Violator” all the while, or waiving their right to try to prove their innocence, in hopes that OSHA will exercise its vague discretion to remove them from the SVEP in three years.
Second, an employer’s place in the SVEP will be extended not by the heightened type of violations (i.e., Willful, Repeat, and Failure-to-Abate) that are required to initially qualify for the Program, but by any related “Serious” violation at any facility within the enterprise. This poses several problems because SVEP mandates numerous follow-up inspections, today’s OSHA rarely conducts an inspection without issuing a citation, and over the past three years, OSHA has been handing out Serious violations like Halloween candy. Between 2006 and 2010, the types of violations that will keep you in the SVEP (i.e., Serious or greater) are up more than 247%, and the types of violations that can allow for removal (i.e., Other-than-Serious violations) are down more than 10%. In these circumstances, the SVEP exit ramp looks more like a tight rope without a net.