By Eric J. Conn, Head of the OSHA Group at Epstein Becker & Green
OSHA recently issued a White Paper analyzing the first 18 months of its controversial enforcement initiative known as the Severe Violator Enforcement Program (“SVEP”). Despite mounting evidence to the contrary, the White Paper somehow concludes 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 OSH Act obligations; and
- 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 candid review of the publicly available SVEP data, however, exposes SVEP’s underbelly, and casts doubt on the Program’s effectiveness. Most notably, SVEP:
- Disproportionately targets small employers;
- Provokes 8x as many challenges to the underlying citations as compared to the average OSHA enforcement action;
- Encounters significant obstacles in executing follow-up inspections of SVEP-designated employers; and
- Finds virtually no systemic safety issues when follow-up and related facility inspections are conducted.
We have written quite a bit about the SVEP previously on the OSHA Law Update Blog, but here is some background about what it is, who is being targeted, and what the consequences are. On June 18, 2010, OSHA instituted SVEP to focus its enforcement resources on recalcitrant employers, whom OSHA believes demonstrate indifference to their employees’ health and safety. SVEP replaced the much-maligned Enhanced Enforcement Program (“EEP”), a George W. Bush era enforcement program also intended to target wayward employers. The EEP was criticized as ineffective and inefficient because its broad qualifying criteria created so many cases that OSHA struggled to conduct follow-up inspections. OSHA, therefore, scrapped the EEP and instituted SVEP with narrower qualifying criteria and a better infrastructure for pursuing follow-up inspections.
Employers qualify for SVEP if they meet one of the following criteria:
- Any alleged violation categorized by OSHA as “Egregious”;
- 1+ Willful, Repeat or Failure-to-Abate alleged violations associated with a fatality or the overnight hospitalization of three or more employees;
- 2+ 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); or
- 3+ Willful, Repeat or Failure-to-Abate alleged violations related to Process Safety Management (i.e., avoiding the release of a highly hazardous chemical).
Employers designated as severe violators face sanctions beyond the usual monetary fines. Qualifying for SVEP subjects employers 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; and
- A heavy-handed dose of public shaming.
With every SVEP citation, OSHA publishes a public press release that includes an inflammatory quote from a high-ranking OSHA or Department of Labor official about the employer. The Assistant Secretary of Labor for OSHA and his senior staff refer to these press releases as a campaign of “Regulation by Shaming.” In addition to the press releases, OSHA also maintains on its website, an embarrassing public log of SVEP employers. Continue Reading