OSHA's Severe Violator Enforcement Program Defies Constitution - Feed & Grain Magazine Article (Jan. 2013 )

The January/February 2013 issue of Feed & Grain Magazine featured an article entitled “Severe Violator Enforcement Program Defies Constitution” authored by Eric J. Conn, the Head of EBG’s national OSHA Practice Group.  The article expands on a series of posts here on the OSHA Law Update blog regarding OSHA’s controversial Severe Violator Enforcement Program (“SVEP”).

The article provides a detailed explanation about the SVEP, including:

1. The origin and intent of OSHA’s Severe Violator Enforcement Program;
2. the consequences to employers who “qualify” for the SVEP;
3. How and what types of employers have been qualifying for the Program;
4. The questionable legality of the way OSHA implements the Program; and
5. The unfair “exit criteria” from the SVEP.

Here is an excerpt from the article:

“Despite the SVEP’s substantial punitive elements, OSHA deposits employers into the program before the underlying allegations become a Final Order; i.e., before the employers have had an opportunity to prove wrong the qualifying allegations to the OSH Review Commission. Before the employer has a chance to do that, OSHA can, under the SVEP Directive, begin follow-up inspections and inspections at related facilities, add the employer to a public and embarrassing list of severe violators, and condemn the employer in the public arena through harsh enforcement news releases at the time of the issuance of the citations. ‘Guilty before proven innocent’ at its core.

This article explores the Constitutional Due Process implications raised by OSHA’s implementation of the SVEP, and especially the enforcement news releases that accompany employers’ placement into the Program. It will also explain the ways that OSHA’s execution of the SVEP violates the Administrative Procedure Act (APA), which governs agencies’ rulemaking authority. Finally, it discusses the other elements of the SVEP that strike at fundamental fairness and sound policy, such as the nearly impossible ‘exit ramp’ OSHA created for employers to get out of the Program.”

Here is a link to the full article in a standard web version, and a link to the Digital Edition of the January/February 2013 issue of Feed & Grain Magazine, so you can view the article as it appeared in the hard copy magazine.