Courts have begun to more closely scrutinize the impact of federal agency actions and regulations on the due process rights of individuals and entities. For example, in a recent Supreme Court case, Sackett v. U.S. EPA, Justice Alito found the current system of compliance orders administered by the Environmental Protection Agency under the Clean Water Act, which charge increasing penalties every day that an entity does not comply, even before the validity of the compliance order can be assessed, to be “unthinkable” in “a nation that values due process.” The goals of OSHA’s SVEP and EPA’s penalty structure under the Clean Water Act are the same, increase enforcement for employers accused, but not proven, to be recalcitrant, and so is the effect of these two enforcement schemes, an accumulation of penalties prior to a fair and impartial proceeding.
Upon issuing the citations and qualifying an employer as a severe violator, OSHA also issues a news release announcing the alleged violations and publicly declaring the employer’s new status as a severe violator. OSHA also promptly adds the employer’s name to a list with other supposed severe violators, which is publicized on OSHA’s website.
Dr. David Michaels, assistant secretary of labor for OSHA, has explained OSHA’s rationale for the enforcement press releases:
“The most effective means for OSHA to encourage elimination of life-threatening hazards … is to publicize the names of violators, especially when their actions place the safety and health of workers in danger.”
Dr. Michaels and others in senior leadership roles at OSHA refer to this tactic as “Regulation by Shaming,” and it is used most brazenly against those employers OSHA places into the SVEP. Historically, OSHA avoided this kind of public scorn by limiting enforcement press releases to only the most significant cases (generally penalties exceeding $100,000), and even then, issued short, simple press releases that provided only the most basic information about the enforcement action (e.g., number of citations and the size of the penalty), and stuck only to the facts. The hallmarks of the news releases from today’s OSHA are that they are issued for relatively minor enforcement actions, and hardly stick to the facts. OSHA today issues a press release for any set of citations with penalties exceeding $40,000 (including cumulative penalties for multi-employer cases), describes the nature of the citations, the proposed penalty, and always includes a provocative and inflammatory quotation from a senior OSHA or Department of Labor official intended to embarrass the employer.
Here are some examples of the quotations included in recent OSHA news releases, which illustrate their inflammatory nature:
- “Failing to provide protective equipment and hazard communication training shows zero commitment to worker safety and health.”
- “This company has operated in a way that disregards the safety and health of its employees… OSHA will not tolerate employers that do not protect their workers.”
- “The level of disregard for workers’ safety demonstrated by this employer is irresponsible… It should not take a fire or explosion to implement necessary safety measures to protect employees.”
The news releases also expressly state that the employer has been placed into the SVEP, publicly branding the employer as a “Severe Violator.” Again, this is publicized before the employer has the opportunity to correct any mistakes in the allegations or to contest and prove wrong the citations.
These news releases foster negative public perceptions about employers, which lead to a loss of customers, profit, hurts employers’ ability to recruit and retain employees, impacts insurance rates and employers’ abilities to obtain financing from lenders. Accordingly, OSHA’s “regulation by shaming” news releases are undoubtedly a penalty, and since these penalties are laid upon employers before they have any opportunity to prove their innocence, they are unlawful. Courts have already found other agencies’ press releases to be penalties. For example, in relation to an EEOC press release, a federal district court in Arizona warned that “[the] United States and its employees have a special duty not to injure the reputations of its citizens.”
In many cases, OSHA’s press releases unjustly injure the reputations of our nation’s employers, as they are based on unproven allegations. They are all premature, and most turn out to be wrong. Nevertheless, OSHA never issues follow-up news releases to correct inaccuracies favorable to employers, and it has never apologized for its mistaken allegations.