PAINTSQUARE BLOG

It’s been five years since OSHA launched its Severe Violator Enforcement Program, and two years since an agency White Paper trumpeted the program’s “strong start” and progress on “key goals.”

We didn’t agree with OSHA’s take then, and we see no reason to now.

Ohio DOT

OSHA deemed APBN Inc. of Campbell, OH, a Severe Violator in 2011 after issuing 15 serious and willful violations in a $10.2 million repair project on the I-75 bridge in Toledo.

A closer examination of OSHA’s data 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 the 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.

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.

In September 2011, this NF-2WRF category accounted for 65 percent of all SVEP cases; it is now 68 percent. On the surface, this suggests that the program is reaching “recalcitrant employers” who commit multiple willful violations.

However, the reality is that only one in four qualifying cases involves willful violations. More than 75 percent of this category is based on repeat violations.

OSHA

Falls are a leading cause of OSHA citations. And racking up repeat citations, even from different facilities, is a fast way to end up in the agency's Severe Violator Enforcement Program (SVEP).

Moreover, OSHA reports that 56 percent of SVEP employers have fewer than 25 employees; 75 percent have fewer than 100 employees. Often, these employers are not “recalcitrant” and willfully disregarding safety. Rather, they generally don’t know the law and lack the resources to comply.

Dire Consequences

Employers are entered into SVEP after a settlement conference or an employer files notice to contest citations. Once in the program, the employer is subject to:

• Public shaming by OSHA, through a press release detailing the violations and  posting of SVEP status on the agency’s website;
• Mandatory follow-up inspections at that facility and others in the company;
• More expansive settlement agreements than ever before, including corporation-wide requirements rather than site-specific ones.

SVEP status also has serious indirect consequences: harm to the company’s reputation; loss of customers and clients; defection by current and prospective employees; denial of, or increased, interest rates on loans and lines of credit; higher insurances rates; and use of alleged violations as 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 occurred.

Getting Out

Furthermore, more than half of SVEP citations have been contested, with 30 percent of those appeals still in process. Some disputed citations have taken nearly three years to resolve.

American Commercial Lines

Jeffboat, of Jeffersonville, IN, was placed in the program after recording three fatalities in 15 months. Conn's research says that 20 percent of disputed SVEP-qualifying violations are reduced.

Our research shows that about 20 percent of disputes result in the citations being corrected to the extent that the employer no longer qualifies for SVEP. A 20 percent error rate for a program that imposes penalties before any sort of judicial process is controversial, to say the least.

The SVEP exit criteria punish employers who exercise their due-process rights and seem designed to keep employers in the program indefinitely. Two years into the program, OSHA announced the exit criteria.

The key date for exiting SVEP is the date of a “final disposition.” That means:

• A failure by the employer to contest the citations;
• A settlement agreement between OSHA and the employer;
• A final order from the Occupational Safety and Health Review Commission; or
• A judicial decision by a U.S. court of appeals.

Employers who qualify for SVEP must remain there three years before consideration for removal. During that period, the employer must abate all qualifying violations, pay all penalties, complete any applicable settlement agreements, and avoid additional serious violations at that or related facilities.

Even if the employer meets all of these conditions, removal from the program is at the discretion of the OSHA Regional Administrator. To date, zero employers have exited SVEP through the exit criteria.

Republic Engineered Products

OSHA cited Republic Engineered Products' Ohio plant 26 times from 1990 to 2011. The 2011 case, with seven willful violations, landed the company in SVEP.

Challenging a SVEP decision can be expensive and time-consuming. And if the employer loses, the start of the three-year clock will be delayed.

SVEP Strategies

Given the high stakes of SVEP, and the focus on repeat violations, employers should consider:

• Increasing communication among related facilities in the corporate family to address OSHA-related issues; and
• Proactively correcting any OSHA-cited condition at all locations after a citation at one location.

Employers may also want to challenge SVEP-qualifying citations. Those citations may be withdrawn or reduced.

The case can also be tried before an Administrative Law Judge of the OSH Review Commission, the independent federal agency that adjudicates OSHA appeals.

Remember: OSHA is not the final word on citations. Employers have the right to have their cases heard.

ABOUT THE THE BLOGGER Eric J. Conn Eric J. Conn is a founding partner of Conn Maciel Carey and Chair of the firm’s national OSHA • Workplace Safety Group. His practice focuses exclusively on issues involving occupational safety and health law. OSHA Watch offers general information but should not be construed as legal advice. Employers are always advised to seek appropriate counsel for individual issues. Contact Eric. SEE ALL CONTENT FROM THIS CONTRIBUTOR