OSHA adds 25 employers to Severe Violators list, 163 employers named in total

Tucked away on federal OSHA's website is a list of 163 employers with the dishonorable label "severe violator." The designation comes from an enforcement program launched in April 2010 to identify

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

The label is not easy to get. In any given year, less than 1% of U.S. worksites are subject to an OSHA inspection, and few violations (only about 4%) are classified as "willful," "repeat," or "failure-to-abate" ----one of the necessary criteria for the severe violator designation. A serious violation, even one that contributed to a worker's death, maiming, brain damage or other severe injury, is not serious enough for the "Severe Violator" label.

In July of this year, OSHA posted its first list of these bad actor employers and it contained 147 names. This updated list includes 25 new employers for a total of 163. Seven employers who appeared on the July list have shed the severe violator label.

The OSHA document is a 5-page PDF; for your convenience, I've converted it into an MS-Excel spreadsheet (here) to make it easier to sort the information by State, NAICS or other variable. My spreadsheet includes tabs listing the 25 new employers and the 7 employers who appeared on OSHA's document in July, but are not on this October list.

Five of the 25 new employers were subject to an OSHA inspection following a worker fatality. This includes KyKenKee Inc. of Vance, Alabama where a 22 year old lumber mill worker was fatally struck by a log that rolled off a conveyor. The company ultimately received a willful and five serious violations, and a penalty of $92,470 for hazards identified during OSHA's investigation. The agency reported that employees

"indicated that logs rolling off the conveyor were an ongoing hazard, but the company had chosen not to address the problem."

This employer's knowing indifference to workers' safety should meet anybody's definition of a bad actor. Other firms on the list because of violations found after a worker's death are the grain elevator operator Hillsdale Elevator Co. in Geneseo, IL, the masonry contractor Sing Da Corp. dba Chung Hing Co., in Elmhurst, NY, the tortilla bakery Tortilleria Chinantla Inc. in Brooklyn, NY, and Advantage Powder Coating Co. in Defiance, OH.

Overall, the list of 163 includes employers in 30 States, including Illinois (34 employers),
Ohio (23 employers), New York (22 employers), Texas (21 employers), New Jersey (19 employers), Florida (9 employers), and Alabama, Pennsylvania and Wisconsin with 7 employers each. Twelve of the 25 new additions to the list are employers in Illinois and New York.

Some of these firms are not new to those of us that read OSHA's news relesases. In certain notable enforcement cases, when the severity of the violations reach the bad actor threshold, the agency indicates that the employer now qualifies for the Severe Violator Enforcement Program. P. Gioioso & Sons Inc., for example, was cited earlier this year for exposing workers to cave-in hazards. It was far from their first offense. The agency said it was the seventh time the firm was caught by an inspector for this same deadly hazard. OSHA New England Regional Administrator Marthe Kent said

"An unguarded excavation is only seconds away from becoming a grave. While the worker in the Cambridge trench was fortunate not to have been injured when the trench's sidewall collapsed, worker safety must not and can never be left to fortune."

The agency's news release announcing these citations also indicated that P. Gioioso & Sons was now on the bad actor list.

When OSHA posted its first severe violator list in July, my lead sentence reporting on it read:

"What do Kraft Foods Global, Tyson Foods, Sea World and Lucas Oil Production Studio have in common?"

When this new October list was posted, I noticed right away that Kraft Foods was missing. I wondered how a company could be designated a severe violator, but three months later they vanish from OSHA's list.

Kraft's designation as a severe violator stemmed from a repeat violation assessed as part of an October 2010 inspection following the death of Patrick Lynch, 62, at a Nabisco plant. OSHA had proposed a $38,500 penalty.

The agency's instruction to its field offices says, however, that a workplace will be removed from SVEP list if OSHA and the company sign an informal or formal settlement agreement

"in which the citation that qualified the establishment for the SVEP designation is deleted, or if there has been an Administrative Law Judge, Review Commission, or court decision that has vacated such a citation."

In the Kraft Food case, OSHA and the company signed an informal settlement agreement, in which the repeat violation was converted to a serious violation, the penalty reduced from $38,500 to $7,000 and the company presumably agreed to take some additional safety steps. (One would have to request a copy of the settlement agreement from OSHA to find out the company's responsiblity in the bargain.)

Of the other six firms no longer on the severe violator list, CCI Companies, Inc. of Lowville, NY and Montana Construction of Elizabether, NJ were removed following an administrative law judge's decision; Cherry Hill Construction of Stratford, CT and Montalvo's Masonry of Hurst, TX were removed following a formal settlement; M.E. Kelly Construction of Bolingbrook, IL was removed following an informal settlement with OSHA; and Igloo Products of Katy, TX was removed based on a OSH Review Commission (OSHRC) decision. In all the cases, the repeat violations were either deleted or converted to just serious violations.

Noticeably absent from the list are employers from the 21 States that run their own OSHA programs to conduct inspections in private sector workplaces. All but six of the States have adopted a program comparable to federal OSHA's SVEP; no change from what we observed in July. Only three employers in these States---one each in Arizona, Indiana, Washington---are on the severe violator list; the same ones that appeared in the July document.

I've suggested previously that the criteria for receiving the bad actor label is too steep. I'm curious whether this has something to do with the failure to identify severe violators by the State OSHA programs, or is something else going on?