Enforcement Program Defies Constitution

In June of 2010, the Occupational Safety and Health Administration (OSHA) rolled out an enforcement initiative called the Severe Violator Enforcement Program (SVEP or the Program). The stated intent of the program is for OSHA to focus more of its enforcement resources and energy on employers whom the Agency believes are recalcitrant or indifferent to their obligations under the Occupational Safety and Health Act “OSH Act”. Generally speaking, OSHA qualifies employers as “severe violators” when the employers receive citations characterized as “Willful” or “Repeat” in certain specified circumstances, including violations of OSHA’s Grain Standard (29 C.F.R. 1910.272). Around this time last year, 182 employers had been added to the SVEP. This year, that number has more than doubled.

Qualifying for the SVEP subjects employers to:

1. Enhanced, mandatory follow-up inspections at the same facility;
2. Nationwide inspections of related work sites that are part of the same corporate enterprise;
3. Enhanced abatement and settlement terms; and
4. Increased public shaming.

Despite the SVEP’s substantial punitive elements, OSHA deposits employers into the program before the underlying allegations become a Final Order; i.e., before the employers have had an opportunity to prove wrong the qualifying allegations before the OSH Review Commission. Before the employer has a chance to do that, OSHA can, under the SVEP Directive, begin follow-up inspections and inspections at related facilities, add the employer to a public and embarrassing list of severe violators, and condemn the employer in the public arena through harsh enforcement news releases at the time of the issuance of the citations. “Guilty before proven innocent” at its core.

This article explores the Constitutional Due Process implications raised by OSHA’s implementation of the SVEP, and especially the enforcement news releases that accompany employers’ placement into the Program. It will also explain the ways that OSHA’s execution of the SVEP violates the Administrative Procedure Act (APA), which governs agencies’ rulemaking authority. Finally, it discusses the other elements of the SVEP that strike at fundamental fairness and sound policy, such as the nearly impossible “exit ramp” OSHA created for employers to get out of the Program.

Constitutional due process

OSHA qualifies employers for the SVEP for allegedly committing violations of the following four varieties:

Any violation categorized by OSHA as “Egregious (essentially Willful plus)”;

One or more Willful, Repeat or Failure-to-Abate violation(s) associated with a fatality or the overnight hospitalization of three or more employees;

Two or more Willful, Repeat or Failure-to-Abate violations in connection with a high emphasis hazard (generally speaking, the subjects of OSHA’s special emphasis programs, such as falls, amputations, and most recently added to the list of high emphasis hazards — grain handling); or

Three or more Willful, Repeat or Failure-to-Abate violations related to OSHA’s Process Safety Management Standard.

To be clear, employers are placed into the Program based on alleged violations meeting these criteria, as opposed to Final Orders through adjudication or settlement. OSHA promptly begins to subject the employers it qualifies into the program to the punitive elements of the program, notwithstanding Constitutional due process, which guarantees that “no person shall …be deprived of life, liberty, or property, without due process of law.”

Due process of the law means a fair and just judicial proceedings through which guilt or innocence is determined based on the evidence provided — all before a penalty may be imposed. Because being placed in the SVEP occurs at the time of issuance of citations, rather than after final disposition of those allegations, OSHA does not afford the employer an opportunity to contest the citations through the established administrative process, before subjecting them to the punitive sanctions associated with the Program.