Enforcement Program Defies Constitution

Second, an employer’s place in the SVEP will be extended not by the heightened type of violations (i.e., Willful, Repeat and Failure-to-Abate) that are required to initially qualify for the program, but by any related “Serious” violation at any facility within the enterprise. This poses several problems because SVEP mandates numerous follow-up inspections, today’s OSHA rarely conducts an inspection without issuing a citation, and over the past three years, OSHA has been handing out “Serious” violations like Halloween candy.

Between 2006 and 2010, the types of violations that will keep you in the SVEP (i.e., Serious or greater) were up more than 247%, and the types of violations that allow for removal (i.e., Other-than-Serious violations) were down more than 10%. In these circumstances, the SVEP exit ramp looks more like a tight rope without a net.

Special consideration for the grain handling industry

The SVEP is cause for concern for employers in the grain industry. On April 12, 2011, OSHA authorized the inclusion of grain handling hazards on the list of High Emphasis Hazards in the SVEP. Thus, it is now easier for employers in the grain industry to be categorized as Severe Violators because two or more Willful or Repeat violations or Failure-to-Abate notices based on the Grain Standard means inclusion in the SVEP.

A quick review of OSHA’s public SVEP Log reveals that the No. 1 qualifying criteria for the SVEP is through violations related to High Emphasis Hazards. Couple that with OSHA’s aggressive inspection programs targeting the grain industry — the Local and Regional Emphasis Programs in all the major grain states in the country, demands that grain handlers be aware of the increased probability of being classified as severe violators. Accordingly, grain handlers must not only take steps to prepare for OSHA inspections to best position themselves to avoid the types of violations that lead to qualifying for the SVEP, but must also seriously consider challenging all violations cited under the Grain Standard, even Other-than-Serious violations with low or no dollar penalties. Any past violation, even other than serious violations, can serve as the basis for a Repeat violation, which has the very real consequence of turning an employer into a “Severe Violator.”

Eric Conn is a member of Epstein Becker Green’s Labor and Employment practice. Conn is the head of the firm’s national OSHA Practice Group and leads the firm’s efforts to provide occupational safety and health services to its clients. Lindsay Smith was a summer associate at Epstein, Becker & Green in the firm’s Labor & Employment Practice, and will join the firm full-time this fall.