Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

According to the OSHA memorandum dated August 16, 2012, an employer is eligible for removal from the SVEP three years after the final disposition of the issues raised by the SVEP inspection. Such “final dispositions” include failure to contest the citation, entering into a settlement agreement, the OSHA Review Commission’s issuance of a final order, or the release of a court of appeals decision. In addition, the employer must have abated all SVEP-identified hazards that constitute violations, paid all fines, complied with all settlement terms, and not have received additional serious citations related to the initial SVEP inspection at the initial or related worksites.

The regional administrator will have the discretion – except in cases involving national corporate-wide settlements – to approve the employer’s removal from the SVEP roster. If the employer fails to take the above steps, it will remain on the SVEP list for three more years, then be re-evaluated. For cases involving national corporate-wide settlement agreements, the OSHA Director of Enforcement Programs will make the determination, upon the termination of the agreement, regarding the employer's removal from the program. The memorandum states that removal from the SVEP cannot be used as an incentive for settlement.

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Such enhanced enforcement actions in severe violator cases include mandatory follow-up inspections, increased company/corporate awareness of OSHA enforcement, corporate-wide agreements where appropriate, enhanced settlement provisions, and federal court enforcement. The SVEP replaces the agency’s Enhanced Enforcement Program (EEP).

According to the SVEP’s Executive Summary, the most significant differences between the EEP and the SVEP are that the SVEP:

• Targets high-emphasis hazards, which include fall hazards and specific hazards identified from selected National Emphasis Programs;
• Considers nationwide inspections of related workplaces/worksites “critical” inspections for the purpose of 29 CFR §1908.7(b)(2)(iv); and
• Creates a nationwide referral procedure for regions and state plan states.

OSHA will maintain a SVEP log on its inspections. If an employer enters into a formal or informal settlement with OSHA over a citation in which the SVEP designation is deleted, or if an administrative law judge or court decides that the employer citation should be vacated, the entry on the SVEP log will be lined-out and the SVEP designation will be removed from the establishment’s Internet Inspection Detail summary.

Appendix B to the SVEP directive provides guidance to inspectors for assessing whether to inspect other worksites if an organization has been designated a severe violator enforcement case. The guidance explains that “it must first be determined whether compliance problems and issues found during the initial SVEP inspection are localized or are likely to exist at other, similar facilities owned and operated by that employer.” To that end, the guidance provides a list of questions to help the inspector determine the extent of the compliance problems and identify the company structure.

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According to a news release issued by the Department of Labor, the SVEP – which will become effective within the next 45 days – is intended to focus OSHA enforcement resources on:

recalcitrant employers who endanger workers by demonstrating indifference to their responsibilities under the law. This supplemental enforcement tool includes increased OSHA inspections in these worksites, including mandatory OSHA follow-up inspections, and inspections of other worksites of the same employer where similar hazards and deficiencies may be present.

In a statement, OSHA Assistant Secretary of Labor David Michaels claimed: “For many employers, investing in job safety happens only when they have adequate incentives to comply with OSHA's requirements,” adding, “Higher penalties and more aggressive, targeted enforcement will provide a greater deterrent and further encourage these employers to furnish safe and healthy workplaces for their employees.”

Questions remain as to whether the SVEP will unduly penalize employers that are making strides to improve workplace safety. Additionally, if an OSH citation is found to have no merit, it could prove burdensome for employers to remove themselves from the SVEP log kept by OSHA. Under the SVEP’s provisions, employers can be “lined out” of the SVEP log by entering into a formal or informal settlement agreement in which the citation is deleted, or if an Administrative Law Judge, Review Commission, or court decision vacates the citation. 

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