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Heads up! Three important current OSHA trends

Did you know that the majority of employers in OSHA's Severe Violator Enforcement Program (SVEP) have fewer than 10 employees? That OSHA and the National Labor Relations Board (NLRB) recently signed an agreement that gives a backdoor route for filing Whistleblower claims, past the OSHA mandated 30-day deadline? Or that staffing agencies and host employers are jointly responsible for maintaining a safe work environment for temporary workers?

  1. Twenty-three percent increase in Severe Violator Program

    There are 23 percent more worksites in OSHA's Severe Violator Enforcement Program (SVEP) than there were last year, according to an article by Jackson Lewis PC in the National Law Review.

    As of July 1, there were 423 sites in the program, up from 343 last year, the labor and employment law firm reports. Under this program, OSHA can increase its oversight of business operations by scheduling return inspections to monitor compliance or open new inspections of companies' other workplaces, seek settlements with additional requirements, and publicly "shame" the company with news releases, twitter tweets, and website listings.

    While it is not surprising that construction and manufacturing firms dominate the list, (257 construction firms, up from last year's 204, and 117 manufacturing sites, an increase from 97 in 2013), it is surprising, that small employers make up more than half of the list. A total of 235 SVEP sites employ no more than 10 workers. According the report, only 61 SVEP-listed employers have at least 100 workers.

    Often criticized for unfairly targeting small businesses, a high error rate of designations, and no legitimate reasons for related facility inspections, the program is not a place employers want to be and many companies contest (and should contest) the unwelcomed designation (48%). If they are not withdrawn, they must spend at least three years in the program, and it is very difficult to get off the list. There are several ways a company can land on the list:

    • At least two willful or repeat citations or failure-to-abate notifications considered to be of a "high gravity" and related to "high-emphasis hazards." Some examples include falls in construction, excavation/trenching, grain entrapment, combustible dust, amputations, lead exposure and crystalline exposure.
    • A workplace fatality or a catastrophic accident that hospitalizes at least three workers, provided the resulting inspection finds at least one alleged willful, repeat or failure-to-abate violation.
    • When an inspector cites an employer as an "egregious" violator and every violation is treated as a separate citation.
    • When at least three willful or repeat violations or failure-to-abate notices, or any combination, are written during an inspection that is based on high-gravity serious violations related to potential releases of a highly hazardous chemical.

    Notably, OSHA is proactive in targeting past violators for inspections. Unlike serious and willful violations, which have declined in the last five years, repeat violations have increased over 20%. Small employers often lack the resources to know the law and it behooves them to seek compliance assistance to ensure they do not end up in the SVEP.

  2. Stepped up and expanded scope of whistleblower enforcement

    While OSHA's efforts to have Congress pass changes to the Whistleblower Protection Program have been unsuccessful to date, enforcement has been stepped up and a new agreement with the NLRB creates a loophole for claims filed after the thirty-day deadline. OSHA enforces the provisions of more than 20 whistleblower statutes, which are intended to protect employees from retaliation by their employers for bringing violations of the law to OSHA's attention.

    Employers cannot retaliate against workers by taking "adverse action" such as firing or laying off, demoting, denying overtime, disciplining, making threats, intimidating, failing to rehire, reassignment or reducing pay. Violations carry steep fines. Last month, a Michigan asphalt company was ordered to pay $953,916 in damages ($243,916 in back wages to the drivers, $110,000 in compensatory damages and $600,000 in punitive damages) and reinstate two drivers and a foreman for raising safety concerns related to the mandated hours of service for commercial truck drivers.

    Adding to OSHA's strong enforcement powers is a recent agreement with the National Labor Relations Board (NLRB), which gives a backdoor route for filing claims, past the OSHA mandated 30-day deadline. The agreement means that all employees who file an untimely OSHA whistleblower charge will be notified of their right to file a charge with the NLRB. The NLRB has a six-month statute of limitations, but claims are for unfair labor practices that must involve "concerted activities," so not all untimely OSHA claims will qualify. However the agreement has serious implications for employers.

    According to Eric Conn, head of the Epstein Becker Green national OSHA Practice Group: "The anticipated surge in stale safety whistleblower claims masquerading as unfair labor practice charges will likely drive up the costs associated with investigating and potentially litigating meritless claims. Employers should also be aware of the potentially harsher sanctions associated with safety whistleblower issues because the NLRB can seek remedies not available to OSHA, such as injunctive relief and orders that require employers to change policies and procedures. Finally, this new policy will likely result in unions involving themselves more frequently in safety issues because of their familiarity with NLRB procedures and personnel."

  3. Focus on temporary workers

    In anticipation of an increase in the use of temporary workers as a result of the "Employer Mandate" of the Affordable Care Act, as well as some highly publicized deaths of temporary workers on the first days of their job, OSHA launched a Temporary Work Initiative last year.

    OSHA and NIOSH recently reinforced the focus on the issue with the publication of recommended practices to protect temporary workers' safety and health. The new guidance recommends that staff agency/host employer contracts clearly define the temporary worker's tasks and the safety and health responsibilities of each employer. Staffing agencies should maintain contact with temporary workers to verify that the host has fulfilled its responsibilities for a safe workplace. The Recommended Practices publication is available at

    OSHA has made it clear that while the extent of responsibility of staffing agencies and host employers is dependent on the specific facts of each case, staffing agencies and host employers are jointly responsible for maintaining a safe work environment for temporary workers. Two recent examples are:

    • San Antonio fruit processor and staffing agency cited for exposing temporary workers to serious hazards. Fresh From Texas Inc. and iWorks Personnel Inc. fined a total of $135,200.
    • Sterilite Corp., doing business as Sterilite of Alabama LLC, and Marathon Staffing Corp. Inc., were cited for 13 safety and health violations with penalties of $49,000.