Teachers, cops, FBI, even the USDA are authorized to dole out punishment in an attempt to induce desired behavior. From detention to product recalls, appropriate punishments are generally an effective deterrent. But when OSHA runs up against companies that don't care about the fines, how do they escalate?
Until 2003, they didn't. Then the Enhanced Enforcement Program (EEP) was formed, born from the need of escalation for safety violators. But after six years of operation, EEP was widely regarded as a failure. The Office of Inspector General audited the program and gave it a poor assessment. They reported that the program was neither effective nor efficient, with qualifications too broad to really hone in on major violators. Broad standards also meant the list was growing too rapidly, becoming quickly untenable. They also reported that OSHA had missed cases that qualified for the list and was poor at both follow-up and follow-through.
OSHA decided to replace the program rather than amend it. They may have wished to wipe the slate—thus the program's poor reputation—clean. Also, if continuing with the same program but dramatically adjusting guidelines for adding companies to the list, what happens to the existing list of companies? Is it fair to have two sets of standards within the same list? EEP was killed off and OSHA launched the Severe Violator Enforcement Program, or SVEP, in 2010. SVEP had tighter criteria so that the list wouldn't spiral out of control and OSHA could foreseeably maintain the program into the future.
How does a company land on the SVEP list?
According to OSHA, an employer—regardless of size--meets the SVEP criteria if one or more of these factors applies:
- Is a fatality or catastrophe with one or more willful or repeated violations or failure-to-abate notices
- Is a non-fatality/catastrophe with two or more willful or repeated violations or failure-to-abate notices that are high gravity violations related to High-Emphasis Hazards
- Is a non-fatality/catastrophe with three or more willful or repeated violations or failure-to-abate notices that are high gravity violations related to the potential release of a highly hazardous chemical
- Is an egregious case
The High-Emphasis Hazards list includes 11 hazards, 5 of which are fall hazards (general industry, construction, shipyard, marine, and longshoring), as well as amputation, combustible dust, crystalline silica, lead, excavation, and shipbreaking hazards. These hazards/industries are graded against higher standards because the safety risks are typically greater.
After a company is on the list, then what?
OSHA will conduct a followup inspection once the citations become final orders. That can open up a lot of time for abatement of the hazard. The company can file a written Notice of Intent to Contest the citation. (Though a company might simply opt to pay the fine rather than spending time on this, the threat of landing on the SVEP list certainly increases the odds they'll contest the citation.) The paperwork is then forwarded to OSHRC, an independent agency created to arbitrate when companies contest OSHA citations. A hearing is scheduled and the outcome can, like any court case, be appealed. In other words the final outcome—and getting added to the SVEP list—could be held up for quite awhile should the employer push back.
After the original citations have been finalized, OSHA performs a followup inspection to assess whether the citations were abated and if they're committing similar violations. The shortest gap on the current SVEP log (as of 7/1/14) between open date and final order date is six months. So even in an OSHA best case scenario, a company has awhile to eliminate safety hazards.
Falling into the SVEP list initiates OSHA inspections of other branches or locations of the same enterprise, and the settlement terms are increased. Getting listed means the company is in for some bad PR, in the form of an OSHA press release with a shaming quote by a high-up OSHA official.
What good is SVEP?
The primary goal of the list is reform of the offenders. It is too early to assess whether its objective is being met since it takes three years for a company to be up for OSHA review to exit the list and quite a bit of time for the assessment and analysis to occur; the program has not been in effect long enough for there to be a list of reformed companies. But a side benefit to the program is that applicants can check the list to be sure a potential employer is not on it. The list is public domain and anyone can view it. SVEP-listed companies might be less appealing to the workforce and less likely to acquire new business. They may have to bid low for work and bid high for employees, which in itself might be a motivator for reform.
Who and what is on the list?
As of the list released on July 1, 2014, there are 423 offenders; over 60% of these are construction companies. More than one in five workplace deaths occur in the construction industry so it makes sense they'll have a strong presence on the SVEP list. One of the reasons this category may be particularly unsafe is because construction companies often have no static-address brick-and-mortar office, making them hard to locate for followup, so violations may go unpunished fines unpaid. They may move operations and change their business name and ultimately be the same violators under a different umbrella.
In the almost six months of 2010 that the program was running, 34 companies were put on the list. 130 companies were added in 2011, 103 made the list in 2012, 77 in 2013, and in the half year of data available for 2014, 79 names were added to the list. No clear trend has emerged from that data.
As far as types of violations, as of July 1, 2014, a total of 99 companies met the fatality/catastrophe criteria from the list above, 286 were non-fatality with 2 or more willful/repeat violations, 3 were non-fatality with 3 or more willful/repeat violations, and 35 were egregious cases.
Almost half of the companies on the list contested the violations. Risk Management magazine states OSHRC stats for recent years as less than 10% of employers contesting citations. This means that companies are motivated to stay off the list, which points toward this serving as a viable threat. Hopefully the threat element will be strong enough that it will also serve as a deterrent of hazardous workplaces.
In 116 cases no followup was conducted; 49 of these were because the worksite or workplace was closed, 21 because the employer is out of business, and in 46 cases the cited operation has been discontinued. This certainly prunes down the list and in theory safety emerges victorious. But if a company dissolves and management with a history of unsafe practices simply migrate to new locations, the net impact may be zero. Again, it's just too soon to assess the program's value.
How does a company get removed from the list?
Once the violator makes the SVEP list, they're on it for a minimum of three years--no time off for good behavior. They must abate all of the hazards that landed them on the list, paid all related fines, and met settlement provisions. A followup inspection will be performed at all of their sites to ascertain that they have achieved these safety standards and not created new related hazards; if they fail, they're on the list for another 3 years.
It may take several more years of data to assess whether the program is working. If companies are staying on the list, their unsafe conditions not improving, and the quantity of new offenders does not diminish over time, a new program may be warranted. Hopefully making public examples of unsafe behavior will help create a safer workplace.