Workforce Bulletin

By Eric J. Conn, Head of EBG's national OSHA Practice Group

We have written extensively about problems with OSHA's controversial Severe Violator Enforcement Program (SVEP) here on the OSHA Law Update blog.  If the leadership team in the national office of OSHA invited us to sit down with them to ask questions on behalf of Industry about some of these problems with the SVEP, here is what we would ask them:

1. As one would expect for a program designed for recidivists, the punitive elements of the SVEP are significant, including: (a) inflammatory public press releases branding the employer as a severe violator; (b) adding the employer’s name to a public log of Severe Violators; (c) mandatory follow-up inspections at the cited facilities; (d) conducting numerous inspections (up to ten) at sister facilities within the same corporate enterprise; and (e) demanding enhanced terms in settlements (such as corporate-wide abatement, requiring the employer to hire third party auditors to report findings to OSHA, etc.).  However, with the consequences of “qualifying” into SVEP being so, well, severe, how does OSHA justify the fact that the Agency qualifies employers into SVEP before final disposition of the underlying citations?  In other words, how is it lawful, Constitutional, or just plain fair that employers should face these harsh punishments before OSHA has proven that the employer violated the law at all, let alone in the egregious ways that qualify them for SVEP?  For more details about this concern, check out our article regarding the legal and constitutional implications of this premature qualification into SVEP.
2. For more than two years after OSHA launched the SVEP, the Directive for the Program did not include any explanation for how employers could get out once they officially qualified.  When OSHA’s leadership team was asked about this at conferences and meetings, they similarly could not or would not offer any guidance.  The SVEP was quite literally a roach motel; you could check in, but you could never leave.  After much clamoring from industry representatives, earlier this year, OSHA finally publicized a set of so-called SVEP exit criteria.  In short, SVEP employers may get out of the Program if they: (a) pay all the final civil penalties; (b) address all of the abatement required by the citations or settlement; (c) address any other terms of the settlement; (d) make it three full calendar years after final disposition of the citations without receiving any related Serious violations; and (e) even if all of the above is accomplished, the employer may be released from SVEP by the undefined discretion of the OSHA Regional Administrator in the employer’s area.  Check out our earlier post on the OSHA Law Update blog about the SVEP exit criteria.  As relieved as Industry was to see OSHA announce some exit criteria for getting out of SVEP, the specific exit criteria identified by OSHA raise many questions about fairness and reasonableness.  For example, the clock for the three-year “probation/exit period” does not start until “final disposition” of the underlying citations, as opposed to when OSHA qualifies employers into the Program (i.e., immediately upon issuance of the citations).  My questions for OSHA about the SVEP exit criteria would be, how does OSHA reconcile the timing for exit against the timing for qualification?  Why does the start of the exit clock wait for final disposition, but OSHA does not wait for final disposition to dump employers into the Program to begin with?  Also, what criteria or factors will the Regional Administrators consider when exercising their undefined discretion in deciding whether to let employers out of SVEP?
3. Also relevant to OSHA’s SVEP exit criteria, if an employer has a good faith disagreement with OSHA about the basis for the qualifying citation(s), and decides to contest the citations through the formal process provided by the OSH Act, that process can take several years.  Therefore, if the employer contests the citations, and that contest takes two years, and at the end of that two year contest process, the citation package is cut dramatically by an ALJ, but there still remains one SVEP-qualifying citation on the books, that employer’s exit/probation period will be at least 5 years instead of 3.  Hasn’t the employer been punished for exercising his right to contest citations?  Put another way, doesn’t three-years from final disposition exit criteria discourage employers from exercising their right to challenge OSHA’s citations?

Last week, Washington Legal Foundation published a Legal Backgrounder regarding OSHA’s Severe Violator Enforcement Program (“SVEP”) authored by Eric J. Conn, Head of Epstein Becker & Green’s national OSHA Practice Group.  The Legal Backgrounder expands on a series of posts here on the OSHA Law Update blog regarding OSHA’s controversial Severe Violator Enforcement Program.

The article focuses on a White Paper issued by OSHA this Spring, in which OSHA analyzes the first 18 months of its new, controversial enforcement program.  The White Paper concludes that the SVEP is ...

By Eric J. Conn, Head of the OSHA Group at Epstein Becker & Green

Introduction

OSHA recently issued a White Paper analyzing the first 18 months of its controversial enforcement initiative known as the Severe Violator Enforcement Program ("SVEP").  Despite mounting evidence to the contrary, the White Paper somehow concludes that the SVEP is “off to a strong start,” and that it “is already meeting certain key goals,” including:

1. Successfully identifying recalcitrant employers who disregard their OSH Act obligations; and
2. Effectively allocating OSHA's follow-up enforcement resources “by targeting high-emphasis hazards, facilitating inspections across multiple worksites of employers found to be recalcitrant, and by providing Regional and State Plan offices with a nationwide referral procedure.”

A candid review of the publicly available SVEP data, however, exposes SVEP's underbelly, and casts doubt on the Program’s effectiveness.  Most notably, SVEP:

1. Disproportionately targets small employers;
2. Provokes 8x as many challenges to the underlying citations as compared to the average OSHA enforcement action;
3. Encounters significant obstacles in executing follow-up inspections of SVEP-designated employers; and
4. Finds virtually no systemic safety issues when follow-up and related facility inspections are conducted.

SVEP Background

We have written quite a bit about the SVEP previously on the OSHA Law Update Blog, but here is some background about what it is, who is being targeted, and what the consequences are.  On June 18, 2010, OSHA instituted SVEP to focus its enforcement resources on recalcitrant employers, whom OSHA believes demonstrate indifference to their employees' health and safety.  SVEP replaced the much-maligned Enhanced Enforcement Program ("EEP"), a George W. Bush era enforcement program also intended to target wayward employers.  The EEP was criticized as ineffective and inefficient because its broad qualifying criteria created so many cases that OSHA struggled to conduct follow-up inspections.  OSHA, therefore, scrapped the EEP and instituted SVEP with narrower qualifying criteria and a better infrastructure for pursuing follow-up inspections.

Employers qualify for SVEP if they meet one of the following criteria:

1. Any alleged violation categorized by OSHA as "Egregious";
2. 1+ Willful, Repeat or Failure-to-Abate alleged violations associated with a fatality or the overnight hospitalization of three or more employees;
3. 2+ Willful, Repeat or Failure-to-Abate alleged violations in connection with a high emphasis hazard (e.g., falls, amputations, grain handling, and other hazards that are the subject of an OSHA National Emphasis Program); or
4. 3+ Willful, Repeat or Failure-to-Abate alleged violations related to Process Safety Management (i.e., avoiding the release of a highly hazardous chemical).