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After several years of received employer’s requests, OSHA’s Directorate of Enforcement Programs (DEP) issued a memorandum detailing the removal criteria for those employers currently under OSHA’s Severe Violator Enforcement Program (SVEP). This memorandum provides employers guidance on how to be removed from the SVEP, a process that has been unclear since the program was first implemented.

I have been surprised to see so little commentary on the outgoing Deputy Assistant Secretary’s April 29 announcement of OSHA ramping up its focus on Temporary Workers. Ed talked a bit earlier this week about OSHA's new initiative and I'll provide additional practical observations.

When Jordan Barab famously admitted that OSHA was utilizing large penalties accompanied by harsh press releases to “motivate” employers to comply, I had mixed feelings. Fear is a great motivator. Aggressive publication of legitimate noteworthy OSHA citations has a role in the “carrot and stick” process of safety enforcement. Moreover, I understand that the former OSHA Region IV Administrator first used the phrase, and frankly, I doubt that she misused the approach. However, I was concerned that OSHA might issue more harsh penalties and press releases than deserved, in order to “motivate” employers. Those concerns may have been valid, and Corporate entities would do well to consider this increasingly common “approach.”

Former Clinton official Webb Hubbell summed it up well…

There is an old adage in politics and the law that “Bad Facts, Lead to Bad Law.” In law, a horrible fact situation full of sympathy for one side can lead to a Judge or a jury making a poor decision or bad precedent.

In politics a bad or terrible tragedy may lead to sympathetic legislators making a law that seems to redress one inequity, but it has terrible consequences for society.

After two years of uncertainty, employers were finally given some guidance on how to be removed from OSHA's Severe Violator Enforcement Program (SVEP). Employers on the SVEP can expect enhanced follow-up inspections, nationwide inspections of related workplaces, and increased publicity of OSHA enforcement, both within the company and externally. So it comes as no surprise that Companies want to know how to get off the list!

Hopefully you are aware of the continuing escalation of all forms of whistleblower and retaliation claims, including under the 21 Anti-Retaliation laws enforced by special investigators from OSHA’s Whistleblower group. If not, check out the News Room on OSHA’s Whistleblower page.

While non-Californians understandably view the California legal system as more complicated and punitive, until recently, upper leadership and a lack of money made Cal-OSHA more reasonable than its written rules suggested. However, Fed-OSHA has continued to push State OSHA Plans to conform with its more punitive approach, and that “push,” combined with a different governor, has resulted in more punitive Cal-OSHA approaches.

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