New ALJ Decision Emboldens OSHA to Demand More Corporate-Wide Abatement

By Eric J. Conn and Lindsay A. Smith

Employers with multiple worksites beware – OSHA is now much more likely to demand so-called “enterprise-wide abatement” in Complaints filed with the Occupational Safety and Health Review Commission (the “Review Commission”).

Despite what had been settled law for years and the plain language of the OSH Act – that abatement must be limited to the specific workplace where a violative condition was observed by OSHA during an inspection – during the Obama Administration, OSHA began to pursue “enterprise-wide” mandatory abatement; not only as negotiated terms in settlement agreements, but also in relief sought in Complaints filed withCentral Transport Pic 3 the Review Commission. 29 U.S.C. Sec. 659(c) authorizes the Review Commission to:

“issue an order … affirming, modifying or vacating the Secretary’s citation or proposed penalty or directing other appropriate relief ….”

Relying on the “other appropriate relief” language, OSHA has been requesting the Review Commission to order enterprise-wide abatement based simply on observations of a violation at a single location within a multi-facility company.

The Agency’s enterprise-wide abatement efforts first gained notoriety a few years ago during OSHA’s relentless enforcement efforts targeting the U.S. Postal Service. In a 2010 enforcement action against USPS, relying on the “other appropriate relief” OSH Act language, OSHA demanded from the Review Commission an order for USPS to abate the alleged hazards that the Agency observed at one USPS station at all USPS operations around the country. USPS fiercely contested that demand. The enterprise-wide abatement issue was not decided by the Review Commission in that case, however, because OSHA and USPS reached a landmark settlement obviating the need for the Commission to rule on its authority to grant such relief.

We saw OSHA’s efforts to legitimize corporate-wide abatement again in Continue reading