The business community has been placed on notice. OSHA has been actively pursuing its regulatory agenda, while also arming its arsenal to enforce compliance. This alert explores the highlights of OSHA’s initiatives in 2010 and what companies can expect in 2011.
OSHA 2010: Expanded Enforcement and an Active Commission
OSHA’s efforts throughout 2010 included expanded enforcement, a negative publicity campaign, and clearance of several legacy cases from the OSHA Review Commission (“OSHRC”) docket.
2010 Enforcement Statistics. OSHA enhanced its enforcement efforts in 2010 by adding more than 100 inspectors and exceeding its inspection goals. In the 2010 fiscal year (ending September 30, 2010), OSHA conducted nearly 41,000 inspections, including 6,600 health inspections. From those inspections, OSHA issued 96,742 violations, with a significant majority (77%) receiving serious citations. Businesses paid an average of $1,000 for each serious violation. However, recently, OSHA implemented a new internal policy raising the maximum penalty for a serious violation from $1,000 to an average of between $3,000 and $4,000. (See February 2011, Client Alert “OSHA Administrative Penalty Information Bulletin”). The Chart below summarizes OSHA inspection data for 2010.
FISCAL YEAR 2010 FEDERAL OSHA ENFORCEMENT DATA
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The charts below outline the most frequently cited serious and willful violations in 2010. Businesses are encouraged to take note of the 2010 top-cited standards as these are common violations that are often the focus of inspections.
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Negative Publicity Campaign. In addition to issuing citations and collecting penalties, OSHA employed aggressive publicity tactics designed to “shame” businesses. Under this “regulation by shaming” approach, OSHA issued news releases that named businesses, exposed their failings, and detailed the supposedly hazardous conditions uncovered in inspections.
OSHRC Cleared Several “Legacy” Cases. With the addition of Commissioner Cynthia Attwood in February 2010, OSHRC operated without any vacancies for the majority of the year. The full-force OSHRC decided several legacy cases – cases on OSHRC’s docket prior to 2008. These recent legacy decisions include Sharon and Walter Construction Co., wherein OSHRC pierced the corporate veil and found a business liable for a repeat citation based on the predecessor company’s prior citation for the same violation. In addition, OSHRC affirmed more than 100 lockout/tagout willful citations in Dayton Tire.
Failed Legislative Reform. OSHA’s successful initiatives in 2010 were not without some failures. Congressional Democrats failed to pass the Robert C. Byrd Miner Safety and Health Act – a bill that addressed both mine safety and OSHA reform through whistleblower protections, increased penalties, and more. In December 2010, attempting to pass legislation before the 2010 congressional session expired, Democrats introduced a near-identical bill that only applied to mine safety and health (and did not include OSHA reforms). However, even with these modifications, the bill did not pass the House of Representatives.
OSHA Outlook 2011: Continued Aggressive Enforcement but Stalled OSHA Reform
Enforcement appears to be OSHA’s central focus in 2011. This year, companies should expect the following:
- More Inspections, Less Emphasis on Cooperative Programs: OSHA plans to focus on enforcement and citations rather than on cooperative programs. While the Assistant Secretary of Labor, David Michaels, indicated that cooperative programs will not be eliminated, such programs may start charging “user fees.”
- Continued Negative Publicity: Assistant Secretary Michaels said that OSHA will continue the “regulation by shaming” tactic of publicizing businesses’ names along with the supposedly hazardous conditions uncovered during inspections. OSHA believes this negative publicity will deter businesses from repeat violations.
- Focus on Repeat Violators: OSHA is expected to dedicate more resources toward its Severe Violator Enforcement Program (“SVEP”). SVEP, which began in 2010, focuses on inspections for businesses that “have demonstrated indifference to . . . OSH Act obligations by willful, repeated, or failure-to-abate violations.” Businesses subject to the SVEP should expect enhanced follow-up inspections as well as nationwide inspections of related worksites.
- Focus on Recordkeeping: After launching a National Emphasis Program on recordkeeping in 2009, OSHA plans to continue its focus on recordkeeping compliance. (See February 3, 2011, Client Alert “Have You Checked The Records? OSHA Continues to Emphasize Recordkeeping Compliance in 2011”). In addition, OSHRC is slated to decide a case, Secretary of Labor v. AKM LLC d/b/a Volks Constructors, that will set precedent regarding the window of time a business can be cited for a recordkeeping violation. OSHA asserts that recordkeeping violations are continuing violations that violate the law until corrected (or the 5-year retention requirement expires), whereas the defendant is contesting the citations based on Section 9(c) of the OSH Act, which provides that “[n]o citation may be issued under this section after the expiration of six months following the occurrence of any violation.”
- Resolution of Piercing-the-Corporate-Veil Issues: Two legacy cases, which resulted in conflicting decisions over personal liability at the administrative law judge level, are expected to be resolved this year. In Secretary of Labor v. Avcon, Inc., the judge found company owners personally liable for OSHA violations committed by their company, but the same company owners were freed from personal liability for violations committed by related companies (which they owned) in Secretary of Labor v. Altor, Inc.
- Sole Republican OSHRC Board Member’s Term to Expire: Commissioner Horace Thompson, appointed by President Bush in 2007, reaches the end of his term on April 27, 2011. While there is no requirement that President Obama reappoint Thompson or another Republican member, previous administrations have maintained at least one minority party member on OSHRC. President Obama’s appointment plans are unknown.
- Stalled Legislative Efforts: The “Protecting America’s Workers Act” (introduced in the House of Representatives on January 5, 2011) contains many of the OSHA reforms proposed in 2010, including: higher civil and criminal penalties for violations; enhanced whistleblower protections; and expanded rights for family members of injured workers to participate in settlement negotiations. However, with a Republican-controlled House of Representatives, OSHA reform is unlikely.
- Narrow and Focused Rulemaking: Due to political pressure and growing concerns over job creation, OSHA is narrowing its rulemaking efforts and focusing on its proposed Injury and Illness Prevention Program rule (or “I2P2”). The full details of I2P2 are not clear, but Assistant Secretary Michaels indicated that the rule would create a standard requiring businesses to identify and correct workplace hazards, possibly including hazards not already addressed under OSHA standards but falling under the General Duty Clause. In addition, as part of this focused rulemaking, OSHA abandoned its proposed noise reduction rule that would have required businesses to use administrative or engineering controls to reduce noise levels rather than providing employees with earplugs or other personal protective equipment.