By Eric J. Conn
In August of 2010, a Delta Air Lines (“Delta”) baggage handler was fatally injured in a workplace accident, when the employee was ejected from a baggage tug vehicle while not wearing a seat belt. As a result of this incident, Delta was cited by OSHA in February 2011 for alleged violations of regulations under the Occupational Safety and Health Act, including specifically, 1910.132—relating to personal protective equipment.
To resolve the citations, Delta entered into a settlement agreement with OSHA on April 17, 2012 that required Delta to pay a modest penalty, $8,500, but also committed Delta to install seat belts on similar industrial vehicles operated at 90 of Delta’s locations nationwide over the next year. Delta also committed to provide seatbelt training and to mandate the use of seatbelts for 16,000 of its employees. Delta also agreed to waive its right to demand inspection warrants, and permit OSHA to monitor this issue. Finally, the agreement stipulates that general monitoring of implementation of this corporate-wide abatement will be conducted by a third party, not OSHA.
The Delta agreement was one of the first Corporate-Wide Settlement Agreement (“CSA”) reached under OSHA’s latest June 2011 Guidelines for Administering Corporate-Wide Settlement Agreements. Under these guidelines OSHA expanded its use of the CSA to a broader range of enforcement cases, including high profile fatality cases. This type is settlement has special implications for the airline industry, in which employers inherently operate at dozens or even hundreds of sites—magnifying both the potential penalties and compliance costs. See our previous posts about the risks of enterprise enforcement.
Settlement in Context
Delta is a participant in OSHA’s Voluntary Protection Program (“VPP”). On its website OSHA states “VPP corporate applicants must have established, standardized corporate-level safety and health management systems, effectively implemented organization-wide as well as internal audit/screening processes that evaluate their facilities for safety and health performance.” Despite Delta being an active partner with OSHA over the last decade, the settlement agreement appears to be favorable to the Agency. On the other hand, Delta avoided inclusion in OSHA’s Severe Violator Enforcement Program (“SVEP”), which can be an option when there is a fatality and OSHA finds “one or more willful or repeated violations.” If SVEP qualification was on the table in these negotiations, it would certainly have given OSHA substantial leverage.