OSHA defines a "severe violator," but would your bad actor make the cut??

Late last month, OSHA chief David Michaels announced the Severe Violator Enforcement Program, (SVEP) a new iniative targeted at

"recalcitrant employers who endanger workers by demonstrating indifference to their responsibilities under the law."

OSHA says once these bad actor employers are identified, it will conduct inspections at other worksites controlled by the same employer where similar hazards may be present. A good idea, right? It depends on whether you agree with OSHA's narrow definition of a "severe violator." I don't, because OSHA doesn't go far enough.

For example, would you consider an employer a "severe violator" if one of his employees died on the job because the company violated OSHA's fall protection standard, and this same firm had another worker die on-the-job from a fatal fall three years prior? That's what I'd call a recalcitrant employer, a bad actor, and a severe violator, but not under OSHA's definition.

The concept for this initiative was announced last year by Labor Secretary Solis on Worker Memorial Day (April 28, 2009) on the heels of a scathing Inspector General report on OSHA's Enhanced Enforcement Program (EEP). The IG criticized the EEP on numerous fronts, such as its failure to compel inspections of worksites when company-wide H&S practices indicated workers' lives were at risk. The IG noted:

"In our sampled cases, 34 employers had 47 additional fatalites at related worksites."

Throughout 2009, OSHA officials hinted that the SVEP was in the works; it was released on April 22 and will take affect next month. When the official 32-page OSHA directive (as these documents are called by the agency) became public, I needed quite a few post-it notes and colored highlighters to wrap my brain around it. When that didn't work, I devised a flowchart to deconstruct the OSHA SVEP and understand how it's designed to work. I am happy to share my flowchart with all of you. [Note to OSHA officials responsible for the directive: I'm happy to make corrections if you send them my way.]

On the left side of my flowchart, I list 8 situations that might trigger an inspection by federal OSHA, and potentially lead to the "severe violator" label. For example, item #2 explains that if an employer receives a citation for high-gravity willful violations of OSHA's process safety management standard, he would not meet the "severe violator" classification. For process safety management violations, an employer must receive at least three high-gravity willful, repeat or failure-to-abate (W/R/FtA) violations to trigger any "severe violator" action. Likewise, item #6 explains that if an employer receives a citation for high-gravity repeated violation of OSHA's trenching standard, he would not meet the "severe violator" classification; he's only a "severe violator" if he received two W/R/FtAviolations.

Item #3 is most curious. Federal OSHA has a program called Site-Specific Targeting (SST) in which 13,500 worksites receive a personal letter from the Assistant Secretary telling them they have an injury rate that is higher than other companies. In order for one of these worksites to be labeled a "severe violator," OSHA would have to conduct an inspection and issue at least two high-gravity W/R/FtA violations of only certain types of standards related to "high-emphasis hazards." It seems to me that if you are a member of the illustrious group of employers who received a personal letter from the Asst. Secretary alerting you that you have a H&S problem at your worplace, the trigger for the "severe violator" label should be less than TWO willful violations. Two willfuls? when you've already been warned that you're on OSHA's watch list. I say, "throw the book at those SST employers."

Using my flowchart to dissect OSHA's SVEP, it seems like the initiative is designed only to identify potentially the worst of the very worst violators of worker health and safety standards. In the case of a worker fatality, only if OSHA can substantiate a willful, repeat or failure-to-abate violation (W/R/FtA) that contributed to the worker's death does the employer receive the "severe violator" label. We know that W/R/FtA violations are rare; among employers inspected by federal OSHA, less than 4% of violations are classified as W/R/FtA. When federal data is combined with violations issued in OSHA State Plan States, the figure drops to less than 3%. Among all contested citations, I'd bet that a large share of them are classified as W/R/FtA. OSHA, SOL and the Department of Justice acknowledge that proving "willful" is exceedingly difficult. (see House Ed & Labor March 16, 2010 hearing) Why embed it in the SVEP criteria and tie the hands of OSHA's front-line inspectors and supervisors? I bet many of them could tell you off the top of their heads which employers are the bad actors.

On my flowchart, I offer just a few examples of situations that I'd consider for the "severe violator" category. As currently written, none of these meet the SVEP test:

• Has the employer had more than 1 fatal accident at the site in the last 7 years?
• Has the employer had more than 1 fatal accident at all of their sites in the last 5 years?
• Has the employer had multiple fatalites in any given year (all sites) over the last 5 years?
• Is the employer in debt collection and avoiding paying previously assessed monetary penalties?

I'm sure some readers of TPH can identify some of their own examples of bad actor employers who fit the bill as a

"recalcitrant employer who endanger workers by demonstrating indifference to their responsibilities under the law,"

but also don't meet OSHA's SVEP definition. Setting aside that limitation, let's examine what happens next under the SVEP for those employers who are eligible for the worst-of-the-worst label.

OSHA's news release about the SVEP says it will requiere "mandatory OSHA follow-up inspections." Well, sort of.

OSHA will conduct a follow-up inspection at the "severe violator's" worksite, but this will only happen after all citations are final orders of the OSH Review Commission. I suspect that waiting for a final order means these follow-up inspections will not happen for more than a year after the initial citations. Not much of a penalty for getting the "severe violator" label. In addition, I can't help but wonder how the possibility of being labeled a "severe violator" will influence a company's decision to contest a citation? This will be something OSHA HQ should monitor.

In other cases, the OSHA regional office in which the worksite is located will determine whether the employer has three similar sites in the same region. If so, the regional office will conduct inspections of those sites. If some of the sites are located in the same region, but under the jurisdiction of an OSHA State Plan, federal OSHA will refer the information to the State. The 26 States that run their own OSHA programs have six months to adopt the SVEP or an alternative. [You can monitor the States' progress at this website.]

I'll say that OSHA's SVEP is not as complicated and convoluted as its sister agency MSHA's Pattern of Violation screening criteria. That's not saying much though. [That's the MSHA program that had its bar so high that even Massey Energy's Upper Big Branch mine evaded a severe violator label.] I hope the SVEP's creators have some special wisdom to foretell that their criteria will indeed result in harsh enforcement action against

"recalcitrant employer who endanger workers by demonstrating indifference to their responsibilities under the law"

I can't help but recall the language used by OSHA in 2003 when it launched its now disgraced Enhanced Enforcement Program (EEP). The agency said the program was targeted at:

"employers who expose their workers to serious safety and health hazards," "who continually disregard," and "who continue to defy worker safety and health regulations"

The EEP's focus was on:

"employers who have received 'high gravity' citations" and "establishments that received OSHA citations with the highest severity of willful violations, multiple serious violations at the highest level of severity, repeat violations...failure-to-abate notices, or a serious or willful violation associated with a fatality."

It's all sounding a bit familar. Perhaps under this regime, the effect of the program will be more apparent and transparent. Let's start, for example, with a list of the "severe violators" posted front and center on OSHA's homepage. Now that, might shake things up.