A Few Thoughts From The Management Perspective

Report
OSHA’s Increased Emphasis on
Enforcement—The Results So Far
(A Few Thoughts From The Management Perspective)
Jon Snare
Morgan, Lewis and Bockius LLP
1111 Pennsylvania Avenue, NW
Washington, DC 20004
Direct: 202.739.5446
[email protected]
www.morganlewis.com
Overview of OSHA’s Increased Enforcement
from Management Perspective
• Agree that penalties have increased for the past two years
• Key examples from Rich Fairfax slides
– Jump in average penalty per Serious violation from $1053 to $2133
from FY 2010 to FY 2011
– Jump in number of Significant Cases in FY 2010 to 164 (increase of
over 40 from prior year) and increase again in FY 2011 to 215
– OSHA has also reported increase in the use of the Egregious Policy,
from a range of 3 to 5 cases each year in FY 2007 to 2009, to 20 cases
in FY 2010 and 14 cases in FY 2011
• Interesting to note that contest rate is holding steady at 8%
– Contrast with MSHA example after MINER Act passed in 2006
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Overview of OSHA’s Increased Enforcement
from Management Perspective
• More important question—What is impact of this increased
enforcement and higher penalties on workplace safety?
• Debate over “Punishment vs. Prevention”
– Debate in Congress on PAWA—2010
– Example: OSHA debate with State Plan States over OSHA Penalty
Increase policy in 2010
• In 2010, the State Plan State Association sent a letter to OSHA in response
to proposed penalty enhancement policy, which noted that the experience in
these states “has shown that an effective method to achieve greater
compliance among small employers is by focusing on education and training
while increasing the likelihood of an onsite inspection” rather than higher
penalties, which would disproportionately impact small businesses. State
Plan State Association also suggests increasing penalties for serious
violators rather than across the board.
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Overview of OSHA’s Increased Enforcement
from Management Perspective
• How do we measure whether OSHA’s increased
enforcement is having a positive or negative impact with
concern by some over the accuracy of the BLS statistics
on injuries/illnesses and fatalities?
– What has OSHA’s NEP on Recordkeeping revealed about the
accuracy of the BLS data?
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Overview of OSHA’s Increased Enforcement
from Management Perspective
• One of the biggest concerns from the
management perspective is that employers (not
just some) have in some ways been treated as
an “adversary” or “enemy” by OSHA
– “New Sheriff in Town”
– OSHA Press Releases
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Overview of OSHA’s Increased Enforcement
from Management Perspective
Examples of OSHA Press Releases
•
Initial OSHA press release that started the debate on “enforcement by shaming” (Jan.
14, 2010)—Citation against retail store with block exits and quote from OSHA
Assistant Secretary: “It’s been 99 years since the fire at the Triangle Shirtwaist Co.
in New York City took the lives of nearly 150 workers and almost 19 years since two
workers were killed when they were unable to exit the McCrory’s store in Huntington
Station, N.Y. during a fire. Blocked fire exits can be deadly. It is that simple.”
•
“Companies that cut corners at the expense of worker safety must be held
accountable. In this case, [employer] not only failed to make safety its top priority,
but the company ignored many violations that OSHA previously had brought to its
attention.” Quote from Assistant Secretary in national press release May 3, 2011
•
“The level of disregard for workers’ safety demonstrated by these employers is truly
shocking. . . It should not take a massive fire or explosion for employers to
implement necessary safety measures to protect their employees.” Quote from Area
Director Region 4 Press Release June 14, 2011
•
“The lack of employee protection from fire, explosions and hazardous chemicals is
completely unacceptable.” Quote from Area Director Region 5 Press Release Nov.
29, 2010
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Overview of OSHA’s Increased Enforcement
from Management Perspective
Examples of OSHA Press Releases
•
“[Employer] put its workers in grave danger, and it is truly fortunate that no one was killed or
severely injured in these incidents. The company’s blatant disregard for workers’ health and
safety is not acceptable.” Quote from Labor Secretary in Region 5 Press Release Dec. 14, 2010
•
“These types of violations show the company’s disregard for the safety and welfare of its
workers. Those who ignore safe practices and OSHA regulations are inviting tragedy into the
lives of their workers.” Quote from Area Director in Region 5 Press Release April 27, 2010
•
“Although management know the existing sign needed to be removed or covered, they chose to
ignore the requirement and put their employees in danger. This type of blatant disregard for the
safety and health of workers is unacceptable.” Quote from Area Director in Region 4 Press
Release May 24, 2010
•
“There is no excuse for a company to disregard the safety and welfare of its workers by not
following the OSHA safety guidelines. Those who ignore safe practices and OSHA regulations
are inviting tragedy into the lives of their workers.” Quote from Area Director in Region 5 Press
Release May 24, 2010
•
“There is no excuse for a company to disregard the safety and welfare of its workers by not
following OSHA safety standards. Those who ignore safe practices and OSHA regulations are
inviting tragedy into the lives of their workers.” Quote from Area Director in Region 5 Press
Release July 16, 2010
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Overview of OSHA’s Increased Enforcement
from Management Perspective
Example of OSHA Press Releases
•
“The company was well aware of what it needed to do to protect its workers from a well known
hazard. It not only failed to provide that protection, it misled employees – most of whom had
limited knowledge of English – into believing that it was providing them with appropriate medical
treatment. Such a blatant disregard for the health of workers will not be tolerated under this
administration.” Quote from Labor Secretary in national release in connection with OSHA citation
in Florida August 23, 2010
•
“By not complying with fall protection and required training even after repeated OSHA inspections,
[employer] has shown a blatant disregard for the safety of its workers. OSHA is committed to
ensuring that this company provides the training and protection its employees need to safely
perform their jobs. These citations and penalties should send the message that we are
serious.” Quote from Area Director in Region 5 October 13, 2010
•
“This company jeopardized the safety of its employees by not providing the proper fall protection
and machine guarding. Employers’ disregard for worker safety will not be tolerated.” Quote from
Area Director in Region 6 Press Release December 2, 2010
•
“This situation reflects a systemic problem with the way this company approaches safety and
demonstrates an egregious disregard for workers’ safety and health.” Quote from Assistant
Secretary in national press release June 14, 2011.
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Overview of OSHA’s Increased Enforcement
from Management Perspective
•
Consistent with Obama Administration January 2011 Executive Orders?
•
Obama Administration new Executive Order issued on January 18, 2011
directing federal agencies to review regulations that could be "redundant,
inconsistent, or overlapping" and to determine whether any regulations should
be "modified, streamlined, expanded, or repealed" to ensure that federal
agencies' regulations are "more effective or less burdensome in achieving the
regulatory objectives“
•
This Executive Order further states: “Where relevant, feasible, and consistent
with regulatory objectives, and to the extent permitted by law, each agency shall
identify and consider regulatory approaches that reduce burdens and maintain
flexibility and freedom of choice for the public.”
•
Presidential Memoranda issued on Jan. 18, 2011 along with this Executive
Order discusses the need for “fair” and “consistent” regulatory enforcement
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Overview of OSHA’s Increased Enforcement
from Management Perspective
OSHA SVEP Program
• Unanswered Questions and Implications of the SVEP Program
– It is not clear how an employer will be removed from the program.
• Will an employer be released from the SVEP if OSHA conducts a follow-up
inspection of the originally cited worksite and does not find any similar level of
violations? Or is there something more an employer would need to do, such as
comply with some or all of the enhanced settlement provisions described above?
– It is not clear whether OSHA will face challenges from employers for probable cause if
the agency attempts to conduct inspections of other worksites based upon a citation
satisfying one of the criteria set forth in the directive, even though the citation is not yet
a final order of the OSHRC.
• Under well-developed caselaw, OSHA is required to target its enforcement based
upon neutral criteria, and the SVEP’s targeting system, currently based upon
unadjudicated citations, potentially creates a number of constitutional and legal
issues for the agency.
– It is not clear how the contest rate of OSHA citations will be impacted if the agency
closes the door to potential settlements of willful violations and other citations using the
Section 17 “unclassified” approach.
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Overview of OSHA’s Increased Enforcement
from Management Perspective
• Other Trends
– Disputes over walk-around rights
– Multi-agency inspections
– Increased use of the General Duty Clause
– Increased use of Repeat
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Contact Information
Jonathan L. Snare is a partner, resident in the
Washington, D.C. Office of Morgan Lewis & Bockius where
he practices in the area of labor and employment litigation
with a focus on compliance and litigation issues under the
Occupational Safety and Health Act. Jon is the former
Deputy Solicitor of Labor in the Bush Administration and
also served for one year as the Acting Assistant Secretary
of Labor for OSHA.
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