Analysis: OSHA’s Severe Violators Program Prematurely Punishes Employers

By Eric J. Conn May 28, 2013

The Occupational Safety and Health Administration (OSHA) recently issued a report analyzing the first 18 months of its enforcement initiative the Severe Violator Enforcement Program (SVEP). The report concluded that the SVEP is “off to a strong start” and that it “is already meeting certain key goals,” including:

  • Successfully identifying recalcitrant employers who disregard their Occupational Safety and Health (OSH) Act obligations.
  • 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 review of the publicly available SVEP data, however, casts doubt on the program’s effectiveness.

Most notably, the SVEP:

  • Disproportionately targets small employers.
  • Provokes eight times as many challenges to the underlying citations as compared with the average OSHA enforcement action.
  • Encounters significant obstacles in executing follow-up inspections of SVEP-designated employers.
  • Finds virtually no systemic safety issues when follow-up and related facility inspections are conducted.

SVEP Basics

Employers are put into the SVEP if they meet one of the following criteria:

  • Any alleged violation categorized by OSHA as “egregious.”
  • One or more willful, repeat or failure-to-abate alleged violations associated with a fatality or the overnight hospitalization of three or more employees.
  • Two or more 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).
  • Three or more willful, repeat or failure-to-abate alleged violations related to process safety management (e.g., avoiding the release of a highly hazardous chemical).

Employers designated as severe violators face sanctions beyond the usual monetary fines. They are also subject to:

  • Mandatory follow-up inspections at the same facility.
  • Nationwide inspections of related worksites that are part of the same corporate enterprise.
  • Enhanced abatement and settlement terms.
  • A heavy-handed dose of public shaming—with every SVEP citation, OSHA publishes a press release that includes an inflammatory quote about the employer from a high-ranking OSHA or Department of Labor official. The assistant secretary of Labor at OSHA and his senior staff refer to these press releases as a campaign of “regulation by shaming.” Along with the press releases, OSHA also maintains a public log of SVEP employers on its website.

The problem with these consequences is that many employers do not belong in the program. The most fundamental flaw of the SVEP is the timing in which OSHA “qualifies” employers for the program, or as OSHA describes it in the report, “how an SVEP case proceeds through OSHA’s enforcement process.” OSHA freely admits that “[a]n inspection becomes an SVEP case upon the issuance of qualifying citations,” not upon a final order of the Occupational Safety and Health Review Commission. This means that OSHA prematurely puts employers into the program and publicly brands them as severe violators before proving the employers have violated the law at all—let alone in the aggravated manner required to label them as severe violators. Here is a detailed article about the problem with the timing of SVEP qualification.

OSHA compounds this premature branding by locking employers into the SVEP until they can either disprove the underlying citations through the contest process, which often takes years, or maneuver through a multiyear, nearly impossible set of exit criteria if the citations are ultimately proved to have been valid.

OSHA’s SVEP Report

OSHA’s report analyzed data associated with the 191 SVEP cases as of Sept. 30, 2011. The report breaks down and analyzes the cases based on various measures, including:

  • SVEP qualifying criteria.
  • Industry type (construction and nonconstruction).
  • Employer size (by number of employees).
  • Whether a follow-up inspection had been conducted or attempted.

The data reveal that alleged violations related to “high-emphasis hazards” represent the majority of SVEP cases (65 percent), whereas only one process safety management violation had qualified as an SVEP case.

The data also show that construction companies represent 60 percent of SVEP employers, with manufacturing of all types being the second-largest contingent.

Finally, OSHA must conduct follow-up inspections at every SVEP-designated employer. By Sept. 30, 2011, only 48 percent of the 191 SVEP cases were even eligible for follow-up inspections (OSHA will not conduct a follow-up inspection while the underlying case remains in the contest phase). Of that 48 percent, more than half had received follow-ups or attempted follow-ups. By Feb. 29, 2012, however, nearly all of the SVEP cases eligible for follow-up inspections had follow-ups or attempted follow-ups.

Concerns About SVEP

Contrary to OSHA’s claims, the SVEP data presented in the report and otherwise publicly available actually reinforce the serious concerns that many organizations have raised about the program since its inception.

SVEP Disproportionately Targets Small Employers

The majority of SVEP-qualifying employers are small businesses. Roughly 75 percent of SVEP cases have involved companies with fewer than 100 employees (roughly 70 percent of the SVEP construction companies have 25 or fewer workers).

It is certainly the case that small businesses lack the same resources as their larger competitors, which often means less sophisticated safety programs. As the economy limps along and small businesses struggle to survive, however, the solution to the safety gap should not be to dump these small employers into a program that overwhelms them with enforcement measures. Rather than focusing on punishment, OSHA should provide more compliance assistance to small employers.

SVEP Cases Have An Extraordinarily High Rate of Contest

Nearly 50 percent of the citations that have resulted in employers being placed in the program have been contested, and some 30 percent remain under contest, some for nearly three full years. That compares with a national contest average of only 8 percent. The high contest rate for SVEP cases is particularly problematic because of OSHA’s unfair policy of branding employers as “severe violators” before the contest is resolved.

OSHA Faces Obstacles Conducting SVEP Follow-up Inspections

OSHA has faced significant challenges in conducting follow-up inspections of many SVEP employers. The biggest obstacle has been finding small construction companies, because of the short-term nature of their jobs, mobility in the nature of their work, and their size. In fact, OSHA could not locate 52 construction companies for follow-up inspections. Other attempts to reinspect have failed because the employers went out of business. Even though the report boasts that nearly all SVEP employers eligible for a follow-up inspection have been inspected or a follow-up inspection was attempted for them, many of those cases were failed attempts; thus it is not clear why that is viewed as a success.

Follow-up Inspection Data Indicate SVEP Targets Wrong Employers

OSHA really hangs its “strong start” hat on the follow-up inspections and related facility inspections it has conducted. The purpose of the follow-ups is to validate that OSHA has targeted the bad actors. The problem for the agency is that the results of follow-up inspections demonstrate the opposite—that SVEP employers are not recidivists, they are not bad actors, and they are not indifferent to their OSH Act obligations.

To say nothing of the 20-plus employers that OSHA admits never belonged in the SVEP, the report states that “no follow-up inspection to date has itself been designated as an SVEP case.” Likewise, of the 21 inspections conducted at related facilities, 19 resulted in zero or only minor violations.

In principle, the SVEP is an admirable program. Of course, OSHA should focus its enforcement resources on bad actors. As the program is being implemented, however, it prematurely punishes employers and, in many instances, punishes the wrong employers altogether.

Eric J. Conn is the head of the OSHA Practice Group at Epstein, Becker, Green’s Washington, D.C., office.

Republished with permission. © 2013 Epstein, Becker, Green.

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