SVEP

Responding to OSHA 11(c) Retaliation Charges, Employee Safety Complaints, and Rapid Response Investigations

Beeta B. Lashkari Leave a comment

By Lindsay A. DiSalvo and Beeta B. Lashkari

When OSHA receives a complaint related to worker safety and health or a severe injury report, one action by OSHA is to give the employer an opportunity to respond before it takes the more extreme action of opening an inspection.  In addition, when OSHA receives an allegation of retaliation, it must provide the employer a chance to explain why the adverse employment action of which it is accused was legitimate or did not occur as alleged.  These responses are an opportunity for the employer to avoid an inspection or litigation of a retaliation claim.  A strong response could assuage OSHA’s concerns and resolve the complaint in a favorable manner for the employer.  However, these responses can also create a written record of admissions to which OSHA can hold the employer accountable, and any supporting documentation may be closely scrutinized and used to create liability.

Thus, employers must ensure there is a procedure in place for managing and developing the responses to these situations, and be strategic about the information they share with OSHA in the response.  We are pleased to share the following tips and strategies for how to effectively address such complaints.

Whistleblower Complaints

To start, although OSHA enforces whistleblower standards under 22 different statutes, the agency receives most of its retaliation claims (over 62%) under Section 11(c) of the Occupational Safety and Health (OSH) Act. Section 11(c) prohibits employers from retaliating against workers who in good faith attempt to exercise a worker safety-related protected right under the law.

While the vast majority – about 71% – are either dismissed by OSHA or withdrawn by the employee, the sheer number of complaints OSHA receives, and the fact that nearly 30% of them do end in favor of the employee, should be more than motivation for employers to thoroughly address each one filed against them.  This is particularly true because, under Section 11(c), employees can be entitled to substantial remedies, such as Continue reading →

All You Never Wanted to Know about OSHA Repeat, Willful & Egregious Violations [Webinar Recording]

Eric J. Conn Leave a comment

On October 16, 2018, Eric J. Conn and Amanda R. Walker of Conn Maciel Carey’s national OSHA Practice Group presented a webinar: “Everything You Never Wanted to Know about OSHA Repeat, Willful and Egregious Violations.” 

During the Obama Era, OSHA sharpened its enforcement teeth considerably by rewriting policies to characterize more violations as repeat and willful, and by significantly increasing its civil penalty authority. Now, OSHA violations characterized as Repeat or Willful carry penalties up to approx. $126,000 each. But what are Repeat and Willful violations? And what are these “Egregious” (or per-instance) citations OSHA has been issuing more and more often that lead to multi-million dollar enforcement actions?

This webinar covered the legal standard for Repeat, Willful and Egregious violations, the circumstances most often associated with them, the consequences for receiving them, and how OSHA’s enforcement policies have resulted in significant increases in the frequency with which we see them.

Participants in this webinar learned: Continue reading →

OSHA’s Policy of Public Shaming: Status and Future under the Trump Admin. [Webinar Recording]

Eric J. Conn Leave a comment

On August 21, 2018, Eric J. Conn and Aaron R. Gelb of Conn Maciel Carey’s national OSHA Practice Group presented a webinar: “OSHA’s Policies of Public Shaming: the Status under the Trump Admin. and the Future.“

As a small budget agency, OSHA has long looked for policies that will leverage individual enforcement actions to have the greatest impact on Industry.  That is the origin of OSHA’s controversial policy of “Regulation by Shaming.”  During the Obama Administration, employer shaming became a significant enforcement tool and came in many forms, from increasing use of enforcement press releases that included embarrassing and inflammatory quotations about employers, to maintaining a public bad actors list in connection with the Severe Violator Enforcement Program, and the pièce de résistance – publishing a Rule by which OSHA will collect and publish employers’ injury and illness data and details about fatalities.

The Trump Administration has signaled it will take a different approach to public shaming, but at the very least, the vestiges of these policies still remain, and some Administration actions suggest they are here to stay.

During this webinar, participants learned about:

Continue reading →

Unlock the Mysteries of OSHA’s Lockout/Tagout Rule (PART 1 of 2 – Five Reasons to Get LOTO Right)

Eric J. Conn 1 Comment

By Eric J. Conn and Aaron R. Gelb

For a host of reasons, it is vital for employers to get compliance with OSHA’s standard for the “control of hazardous energy (Lockout/Tagout)” (29 C.F.R. 1910.147) right, but it also happens to be one of the least understood and most often botched set of regulatory requirements in OSHA’s portfolio of standards.

This two-part article will lay out:

  • [Part 1]: Five reasons it is critical for employers to ensure compliance with OSHA’s LOTO Standard; and
  • [Part 2]: Five common mistakes employers make when implementing the LOTO requirements.

Part 1: Why it is Critical for Employers to Get LOTO Right

The list could be much longer, but we have identified five enforcement-related reasons why it is particularly important for employers to fully grasp OSHA’s LOTO requirements and to implement them effectively.

Before we get to the enforcement reasons for strict LOTO compliance, let’s first note that the associated hazards that LOTO was designed to protect against are serious and frequently realized.  Workers performing service or maintenance on machinery face the risk of serious injuries and even death, if hazardous energy is not properly controlled.  The most common types of injuries from unexpected energization during maintenance are amputations or lacerations to body parts, as well as electrocutions, burns, and crushing/struck-by.

OSHA reports that “craft workers, electricians, machine operators, and laborers are among the 3 million workers who service equipment routinely and face the greatest risk of injury. Workers injured on the job from exposure to hazardous energy lose an average of 24 workdays for recuperation.”  OSHA also explains that the failure to control hazardous energy accounts for 10% of the serious accidents in most industries.

While employers should never lose focus from that important safety reason to focus on LOTO, the purpose of this article is to address the numerous regulatory enforcement reasons that getting LOTO right is uniquely important.

    1.  Amputation Injuries Create Special Reporting Obligations

Amputations, which is one of the primary hazards intended to be addressed by effective LOTO, is one of the only specific injury types for which there is a special duty for employers to proactively to report to OSHA.  Continue reading →

OSHA’s “Look Back” Window to Issue Repeat Citations is Unlimited

Daniel C. Deacon Leave a comment

By Eric J. Conn and Dan C. Deacon

The U.S. Court of Appeals for the Second Circuit recently issued an opinion granting OSHA the ultimate leeway to characterize citations as Repeat.  The case involved a Repeat excavation-related OSHA citation issued to Triumph Construction Corp. in 2014.  OSHA based the Repeat characterization on a prior violation of the same excavation standard confirmed against Triumph from 2009.

Triumph asserted to the OSHRC Administrative Law Judge and to the U.S. Court of Appeals for the Second Circuit that the Repeat citation was not appropriate because the amount of time that had passed from the original 2009 citation to the new 2014 alleged violation (nearly five years) was outside OSHA’s stated Repeat look-back policy in its Field Operations Manual.  The OSHA Field Operations Manual in effect in 2014 was the 2009 version, which provided for a three year look-back period to find prior violations to serve as the basis for a Repeat violation.

In a 2016 update to the Fields Operations Manual, the Obama Administration expanded the Repeat look-back period to five-years.  Regardless what the FOM said, the Triumph case implicated broader issues of whether OSHA’s policy created an strict statute of limitations for the Repeat look-back and whether OSHA has the authority, on a whim, to change enforcement policies like the Repeat look-back period without rulemaking or legislation.

The ALJ upheld the Repeat citation, and on appeal, the Second Circuit in Triumph Construction Corp. v. Sec. of Labor (Docket No. 16‐4128‐ag, March 14, 2018), held that because neither the OSH Act nor any regulations promulgated under the Act mandate or restrict any look-back time period for Repeat violations, OSHA was not bound by its own stated policy.  OSHA has the discretion, in other words, to search an employer’s citation history as far back as it wishes to identify any prior substantially similar violations to serve as the basis for a present “repeat” violation. Continue reading →

Unlock The Mysteries of OSHA’s Lockout/Tagout Standard [Webinar Recording]

Eric J. Conn 2 Comments

On February 20, 2018, Eric J. Conn and Aaron R. Gelb of the national OSHA Practice Group at Conn Maciel Carey presented a webinar: “Unlock The Mysteries of OSHA’s Lockout/Tagout Standard.”

OSHA’s Lockout/Tagout (Energy Control) Standard is always one of OSHA’s most frequently cited standards, and now, with the “Amputations National Emphasis Program” raging on into 2018, as well as LOTO violations continuing to be considered “high emphasis hazards” to qualify employers into the dreaded Severe Violator Enforcement Program, it is critical for employers to get Lockout/Tagout right.  While LOTO continues to be an important standard, it also continues to be one of the least understood standards.  This webinar will highlight the Top 10 most misunderstand and frequently cited aspects of the LOTO rule, and forecast some potential changes to the rule and OSHA’s enforcement of it.

During this webinar, participants learned: Continue reading →

OSHA’s Severe Violator Enforcement Program: Who, What, When and How to Avoid It [Webinar Recording]

Eric J. Conn Leave a comment

On Tuesday, October 20th, Eric J. Conn and Lindsay A. Smith delivered a webinar regarding “OSHA’s Severe Violator Enforcement Program (SVEP): Who, What, When and How to Avoid It.“

OSHA’s Severe Violator Enforcement Program (SVEP) is an enforcement program intended by OSHA to direct its enforcement resources at employers whom OSHA believes are “indifferent to their OSH Act obligations.”  Employers who “qualify” for SVEP by being accused of committing Willful or Repeat violations in certain categories face a heavy dose of public shaming, but more importantly, SVEP Cover Slidewill receive a heavy dose of OSHA inspections at the same and related facilities throughout the organization.  The SVEP also includes a harsh and unrealistic “exit criteria,” so once you check in, you may never leave.  To make matters worse, OSHA qualifies employers into SVEP just based on allegations, not proven violations.

The webinar explained what SVEP is, reviewed how employers qualify, described the types of companies that are being ensnared and in what circumstances, and provided recommendations for how to avoid SVEP and how to get removed if you do qualify.

Topics included:

  • Background about the Severe Violator Enforcement Program
  • Qualifying criteria and timing issues
  • Consequences of qualifying for SVEP
  • Data and trends about SVEP and SVEP employers
  • Best practices to avoid or get out of SVEP

Here is a link to a recording of the webinar, which includes the full audio with slides.

Plan to join us for the remaining webinars in Conn Maciel Carey’s 2015 OSHA Webinar Series, and check out our archives for recordings of the earlier webinars done as part of the series.

OSHA’s Severe Violator Enforcement Program: A Severe Injustice

Eric J. Conn 3 Comments

By Eric J. Conn, Chair of Conn Maciel Carey’s national OSHA Practice Group

It has been five years since OSHA launched its Severe Violator Enforcement Program (“SVEP”), and two years since an agency White Paper trumpeted the program’s “strong start” and progress SVEP White Paper Imageon “key goals.”  A closer examination of OSHA’s SVEP data, however, reveals that:

  • SVEP disproportionately targets small employers;
  • SVEP cases are contested more often than other OSHA citations;
  • OSHA has trouble conducting follow-up inspections of small employers, especially those in the construction industry; and
  • The program fails to reach the recalcitrant employers it was designed to target.

The fact is, SVEP (which succeeded OSHA’s controversial Enhanced Enforcement Program) has shown troubling trends from the start. Not only do the criteria weigh against smaller employers, but the consequences for employers thus labeled are dire, placing them in a precarious position, even before OSHA has proven that the employer violated the law at all, let alone in such an egregious manner as to warrant inclusion in SVEP.

Repeat Overkill

SVEP was instituted to target “enforcement efforts on recalcitrant employers who demonstrate indifference to the health and safety of their employees.” To that end, OSHA created four categories that would land an employer in SVEP. However, over the life of the program, one qualifying category has been invoked predominantly: an employer who has two or more willful, repeat, or failure-to-abate citations related to High Emphasis Hazards (NF-2WRF).

Willful violations are those committed by an employer who knows the applicable standard but intentionally disregards it. Repeat violations have a much lower standard and require no aggravated intent. The employer does not have to know the law or be indifferent to safety.

Through the first several years of SVEP, this NF-2WRF category accounted for nearly 70% of all SVEP cases. On the surface, this suggests that the program is reaching those bad actors, who deliberately flout the law; i.e., employers that have committed multiple willful violations. However, the reality is that only one in four qualifying cases involves any willful violations. More than 75% of this category is based on repeat violations, which, again, do not require any specific or aggravated intent.

Moreover, OSHA reports that nearly 60% of SVEP employers have fewer than 25 total employees, and 75% have fewer than 100. Often, these employers are not “recalcitrant” and have not acted with indifference toward safety or the law. Rather, they generally do not know what OSHA’s vast portfolio of regulations require and/or lack the resources to comply.

Bad Timing

An employer is entered into SVEP at the outset of an OSHA case, prior to an opportunity to defend itself and prove wrong OSHA’s alleged violations. Notwithstanding this end run around Constitutional Due Process, once in the program, SVEP employers are immediately subject to:

  • Public shaming by OSHA through both an inflammatory, embarrassing, and one-sided press release detailing the alleged violations and by posting the employer’s name on a Severe Violator list on OSHA’s public website;Severe Violator Image
  • Mandatory follow-up inspections at that cited facility and up to ten sister facilities within the organization; and
  • More expansive settlement terms than ever before, including corporate-wide requirements.

SVEP status also has serious indirect consequences:

  • Harm to the company’s reputation;
  • Loss of customers and clients;
  • Defection by current employees and obstruction of recruiting prospective employees;
  • Denial of, or increased interest rates on, business loans and lines of credit;
  • Higher insurance rates or loss of insurance coverage; and
  • Use of the SVEP designation in talking points for organized labor and interests adverse to the employers.

And all of this happens before any adjudication process—in other words, before OSHA proves that a violation of the law even occurred.

Getting Out

More than half of SVEP citations have been contested, with 30% of those contests still in process. Some disputed citations have taken more than three years to resolve.

Our research shows that Continue reading →

2015 OSHA Webinar Series – Archive of Recordings

Eric J. Conn Leave a comment
Webinar Series 1
Today’s OSHA has increased enforcement to levels never seen before, from increased inspections and citations to dramatically higher penalties, from more criminal referrals to a heavy dose of public shaming.  It is more important than ever to be prepared. This complimentary webinar series has been designed to give employers the tools they need to avoid becoming an OSHA-enforcement poster child.
We have recorded and will continued to record each of the webinars, and as we move through the year and conduct these webinars, we are pleased to provide links below to the recordings.  There are also links below to the registration pages for the remaining webinars in the series.  Check out the completed webinars and plan to join us for all or some of the rest of the series.

Continue reading →