Is OSHA's Severe Violator Program fair?
By Jim Stanley
President, FDRsafety
New statistics on the Severe Violator Enforcement Program show that OSHA is delivering on its promise to use the program as a key tool in its aggressive enforcement push, but these stats also demonstrate there are good reasons to question its fairness.
As of June 30, OSHA says, there were 330 employers designated as severe violators. Last year OSHA reported there were 182 employers on the list. But significantly, OSHA also reported that 59 companies have been removed from the list since the program's June 2010 start after successfully contesting the violations that landed them in the program.
To be declared a severe violator, a company must have experienced a fatality or an accident that hospitalized at least three workers or been cited for significant violations of OSHA regulations.
Placement on the list has major impact for companies. Among other things, those designated as severe violators are subject to mandatory reinspections at the original location of the violations and inspections at their other locations around the country. But perhaps worst of all is the "shaming penalty." Inclusion on the list is tantamount to guilt before you can prove yourself innocent -- no matter if the list includes some footnotes.
The problem? Companies can be placed on the list while they contest the cited violations. As is clear from the statistics I just referenced, in a significant number of these cases, those appeals are successful. While the appeal is in process, however, the company has no way to remove its name from the Severe Violator list or stop the inspections of their other locations.
If the violations that caused the company to be on the list are ultimately withdrawn, or modified, or if the company wins its contest in front of the Occupational Safety and Health Review Commission, can the damage caused by being named to "the list" be undone? In my opinion, the answer is clearly NO.
Meanwhile, it is reported that OSHA officials continue to review an internal report analyzing the program. The report is allegedly looking at the criteria that determines which establishments are named as severe violators and the criteria for employers to show they no longer deserve the designation.
Let's hope that the report recommends some sensible changes in the program. OSHA needs to deal with companies that willfully and intentionally expose their employees to serious hazards. But tinkering with due process is a very slippery slope.
Jim Stanley is a former Deputy Assistant Secretary of Labor for OSHA. Contact him at jstanley@fdrsafety.com or (513) 317-5644.
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