Enforcement and Inspection

Cracking Down on “Indifferent Employers”: Increased OSHA Scrutiny for Severe Violators

In 2012, the Henry RAC Holding Corporation—a New Jersey-based rifle manufacturer—was labeled by the Occupational Safety and Health Administration (OSHA) as a “severe violator,” and placed in the Severe Violator Enforcement Program (SVEP). As a result, the company was subject to follow-up inspections by OSHA. In a 2016 follow-up inspection, OSHA cited the company for additional repeat and serious violations.

Mandatory follow-up inspections are one of the key features of the SVEP, together with stricter settlement agreements (discussed in yesterday’s article), and an emphasis on corporatewide enforcement. Here’s the kind of increased scrutiny that employers can expect if OSHA labels them “severe violators.”

The Inspection That Just Keeps Giving

When an employer is labeled a “severe violator,” OSHA doesn’t just send out a list of citations and look for an abatement verification from the employer at a later date. Instead, OSHA makes a point of reinspecting the facility for abatement and compliance, and of determining whether all of the company’s facilities may have similar problems.

Employers that are placed in the SVEP will face increased OSHA enforcement scrutiny in the form of:

Mandatory follow-up inspections. When an employer is placed in the SVEP, OSHA will conduct follow-up inspections after any citation becomes a final order, even if the employer has provided abatement verification for the cited violations. The purpose of the follow-up inspection, according to OSHA, is to assess not only whether the cited violations were abated, but also whether the employer is committing similar violations.

Nationwide inspections of related workplaces/worksites. OSHA believes that employer indifference to compliance responsibilities may be indicative of broader patterns of noncompliance within the corporation. If OSHA believes that compliance problems identified in the inspection of one site may be indicative of a broader pattern of non-compliance, OSHA will inspect related worksites of the same employer.

Increased company/corporate awareness of OSHA enforcement.  By this, OSHA means that it will not just send a copy of the citations to management at the worksite that was affected. Instead, OSHA will attempt to ensure that corporate officers, union representatives, and the public are aware of problems in the worksite. OSHA will do this by:

    • Mailing a copy of the Citations and Notifications of Penalty to the employer’s national headquarters (if the employer has more than one fixed work location).
    • Mailing a copy of the Citations and Notifications of Penalty that is mailed to the employer’s national headquarters to the union representative as well.
    • Issuing regional and nationwide news releases when citations are issued under the SVEP.
    • Involving corporate officers in the enforcement process. If OSHA determines that an establishment’s safety and health problems should be addressed at the corporate level, it may send a letter to the company president, expressing OSHA’s concern with the company’s violations. OSHA may also try to schedule a meeting in which company officials, employees, and unions representing affected employees to discuss how the company intends to address safety and health compliance. OSHA will send a letter to the union representative if it decides that the establishment’s safety and health problems need to be addressed at the corporate level.
    • Negotiating corporatewide enforcement agreements. OSHA has already done this with a number of national employers and not just in the SVEP program.

Avoiding the Label

Of course, the best way to avoid being labeled a “severe violator” is to focus on comprehensive OSHA compliance and on correcting any cited violations in order to avoid “repeat” and “willful” citations in the future. Employers can also reduce their chance of being labeled a severe violator by paying attention to OSHA’s National Emphasis Programs, from which the hazards subject to severe violator labeling are chosen.