OSHA’s Increased Emphasis on Enforcement—The Results So Far ( A Few Thoughts From The Management Perspective )

1. OSHA’s Increased Emphasis on Enforcement—The Results So Far(A Few Thoughts From The Management Perspective) Jon Snare Morgan, Lewis and Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004Direct: 202.739.5446 jsnare@morganlewis.com

2. Overview of OSHA’s Increased Enforcement from Management Perspective • Agree that penalties have increased for the past two years • Key examples from Rich Fairfax slides • Jump in average penalty per Serious violation from $1053 to $2133 from FY 2010 to FY 2011 • Jump in number of Significant Cases in FY 2010 to 164 (increase of over 40 from prior year) and increase again in FY 2011 to 215 • OSHA has also reported increase in the use of the Egregious Policy, from a range of 3 to 5 cases each year in FY 2007 to 2009, to 20 cases in FY 2010 and 14 cases in FY 2011 • Interesting to note that contest rate is holding steady at 8% • Contrast with MSHA example after MINER Act passed in 2006

3. Overview of OSHA’s Increased Enforcement from Management Perspective • More important question—What is impact of this increased enforcement and higher penalties on workplace safety? • Debate over “Punishment vs. Prevention” • Debate in Congress on PAWA—2010 • Example:  OSHA debate with State Plan States over OSHA Penalty Increase policy in 2010 • In 2010, the State Plan State Association sent a letter to OSHA in response to proposed penalty enhancement policy, which noted that the experience in these states “has shown that an effective method to achieve greater compliance among small employers is by focusing on education and training while increasing the likelihood of an onsite inspection” rather than higher penalties, which would disproportionately impact small businesses.   State Plan State Association also suggests increasing penalties for serious violators rather than across the board.

4. Overview of OSHA’s Increased Enforcement from Management Perspective • How do we measure whether OSHA’s increased enforcement is having a positive or negative impact with concern by some over the accuracy of the BLS statistics on injuries/illnesses and fatalities? • What has OSHA’s NEP on Recordkeeping revealed about the accuracy of the BLS data?

5. Overview of OSHA’s Increased Enforcement from Management Perspective • One of the biggest concerns from the management perspective is that employers (not just some) have in some ways been treated as an “adversary” or “enemy” by OSHA • “New Sheriff in Town” • OSHA Press Releases

6. Overview of OSHA’s Increased Enforcement from Management Perspective Examples of OSHA Press Releases • Initial OSHA press release that started the debate on “enforcement by shaming” (Jan. 14, 2010)—Citation against retail store with block exits and quote from OSHA Assistant Secretary:   “It’s been 99 years since the fire at the Triangle Shirtwaist Co. in New York City took the lives of nearly 150 workers and almost 19 years since two workers were killed when they were unable to exit the McCrory’s store in Huntington Station, N.Y. during a fire.   Blocked fire exits can be deadly.  It is that simple.” • “Companies that cut corners at the expense of worker safety must be held accountable.  In this case, [employer] not only failed to make safety its top priority, but the company ignored many violations that OSHA previously had brought to its attention.”  Quote from Assistant Secretary in national press release May 3, 2011 • “The level of disregard for workers’ safety demonstrated by these employers is truly shocking. . . It should not take a massive fire or   explosion for employers to implement necessary safety measures to protect their employees.”  Quote from Area Director Region 4 Press Release June 14, 2011 • “The lack of employee protection from fire, explosions and hazardous chemicals is completely unacceptable.”  Quote from Area Director Region 5 Press Release Nov. 29, 2010

7. Overview of OSHA’s Increased Enforcement from Management Perspective Examples of OSHA Press Releases • “[Employer] put its workers in grave danger, and it is truly fortunate that no one was killed or severely injured in these incidents.  The company’s blatant disregard for workers’ health and safety is not acceptable.”  Quote from Labor Secretary in Region 5 Press Release Dec. 14, 2010 • “These types of violations show the company’s disregard for the safety and welfare of its workers.  Those who ignore safe practices and OSHA regulations are inviting tragedy into the lives of their workers.”  Quote from Area Director in Region 5 Press Release April 27, 2010 • “Although management know the existing sign needed to be removed or covered, they chose to ignore the requirement and put their employees in danger.  This type of blatant disregard for the safety and health of workers is unacceptable.”  Quote from Area Director in Region 4 Press Release May 24, 2010 • “There is no excuse for a company to disregard the safety and welfare of its workers by not following the OSHA safety guidelines.  Those who ignore safe practices and OSHA regulations are inviting tragedy into the lives of their workers.”  Quote from Area Director in Region 5 Press Release May 24, 2010 • “There is no excuse for a company to disregard the safety and welfare of its workers by not following OSHA safety standards.  Those who ignore safe practices and OSHA regulations are inviting tragedy into the lives of their workers.”  Quote from Area Director in Region 5 Press Release July 16, 2010

8. Overview of OSHA’s Increased Enforcement from Management Perspective Example of OSHA Press Releases • “The company was well aware of what it needed to do to protect its workers from a well known hazard.  It not only failed to provide that protection, it misled employees – most of whom had limited knowledge of English – into believing that it was providing them with appropriate medical treatment.  Such a blatant disregard for the health of workers will not be tolerated under this administration.” Quote from Labor Secretary in national release in connection with OSHA citation in Florida August 23, 2010 • “By not complying with fall protection and required training even after repeated OSHA inspections, [employer] has shown a blatant disregard for the safety of its workers.  OSHA is committed to ensuring that this company provides the training and protection its employees need to safely perform their jobs.  These citations and penalties should send the message that we are serious.”  Quote from Area Director in Region 5 October 13, 2010 • “This company jeopardized the safety of its employees by not providing the proper fall protection and machine guarding. Employers’ disregard for worker safety will not be tolerated.”  Quote from Area Director in Region 6 Press Release December 2, 2010    • “This situation reflects a systemic problem with the way this company approaches safety and demonstrates an egregious disregard for workers’ safety and health.”  Quote from Assistant Secretary in national press release June 14, 2011.

9. Overview of OSHA’s Increased Enforcement from Management Perspective • Consistent with Obama Administration January 2011 Executive Orders? • Obama Administration new Executive Order issued on January 18, 2011 directing federal agencies to review regulations that could be "redundant, inconsistent, or overlapping" and to determine whether any regulations should be "modified, streamlined, expanded, or repealed" to ensure that federal agencies' regulations are "more effective or less burdensome in achieving the regulatory objectives“ • This Executive Order further states:  “Where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, each agency shall identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public.” •  Presidential Memoranda issued on Jan. 18, 2011 along with this Executive Order discusses the need for “fair” and “consistent” regulatory enforcement

10. Overview of OSHA’s Increased Enforcement from Management Perspective OSHA SVEP Program • Unanswered Questions and Implications of the SVEP Program • It is not clear how an employer will be removed from the program. • Will an employer be released from the SVEP if OSHA conducts a follow-up inspection of the originally cited worksite and does not find any similar level of violations? Or is there something more an employer would need to do, such as comply with some or all of the enhanced settlement provisions described above? • It is not clear whether OSHA will face challenges from employers for probable cause if the agency attempts to conduct inspections of other worksites based upon a citation satisfying one of the criteria set forth in the directive, even though the citation is not yet a final order of the OSHRC. • Under well-developed caselaw, OSHA is required to target its enforcement based upon neutral criteria, and the SVEP’s targeting system, currently based upon unadjudicated citations, potentially creates a number of constitutional and legal issues for the agency. • It is not clear how the contest rate of OSHA citations will be impacted if the agency closes the door to potential settlements of willful violations and other citations using the Section 17 “unclassified” approach.

11. Overview of OSHA’s Increased Enforcement from Management Perspective • Other Trends • Disputes over walk-around rights • Multi-agency inspections • Increased use of the General Duty Clause • Increased use of Repeat

12. Contact Information Jonathan L. Snare is a partner, resident in the Washington, D.C. Office of Morgan Lewis & Bockius where he practices in the area of labor and employment litigation with a focus on compliance and litigation issues under the Occupational Safety and Health Act.  Jon is the former Deputy Solicitor of Labor in the Bush Administration and also served for one year as the Acting Assistant Secretary of Labor for OSHA. 12