OSHA’s Severe Violator Enforcement Program (SVEP) Remains Problematic and Controversial

OSHA’s Severe Violator Enforcement Program [1](SVEP) is almost a decade old this June, and it’s been controversial ever since it was launched in 2010. OSHA called the program successful in its own 2013 evaluation[2], saying it was helping them target high-emphasis hazards, facilitate follow-up inspections, and enhance settlements. But others —particularly employers who may have suddenly found themselves placed in the program after one serious violation — aren’t happy at all.

An independent review[3] of the SVEP that was published a few months after OSHA’s self-evaluation found that nearly 50 percent of the citations that placed an employer in the program were being contested. In 2013, the year of the analysis, the national average for challenging an OSHA citation was only 8 percent. The same report indicated that the program disproportionately targeted small employers, and that follow-up inspection data showed that SVEP was, in some cases, actually targeting the wrong employers.

The controversy continues, and the list of employers being placed in the program has grown a lot. As of May 2, 2019, over 600 employers are listed in the very public and easily found SVEP case log[4].

This log represents one of the worst things about the program. OSHA is labeling employers “severe violators” before proving that any violations have occurred. If we truly value due process, OSHA should be required to prove the underlying violations before announcing them publically — because being on this list can have significant business repercussions.

There’s a trickle-down effect. The City of Boston, for example, now requires all contractors and subcontractors to submit comprehensive violation history[5] paperwork, and has instructed all departments to deny and/or revoke permits to anyone with “work safety histories or concerns.” The lack of specificity here invites abuse. And if an employer is found in the SVEP case log, that could be grounds for barring that employer from doing any work in Boston.

Another serious problem is the wide latitude OSHA has sometimes taken concerning the “Egregious Enforcement Action” criteria. This means that one serious violation can get an employer placed in the SVEP, and once an employer is in the program, it can be difficult to get out. Being placed in the program generates more inspections, and this kind of scrutiny frequently leads to more violations. And the beat goes on…

Should you ever find yourself in a situation where the Severe Violator Enforcement Program — or any OSHA citation — is negatively affecting your business, I’d be interested in hearing more about it. If you want to contest, engaging counsel early in the appeal and/or settlement process is crucial to the outcome.

About the Author: James Laboe[6]

Endnotes:
  1. Severe Violator Enforcement Program : https://www.osha.gov/enforcement/directives/cpl-02-00-149#IX
  2. evaluation: https://www.osha.gov/dep/enforcement/svep_white_paper.pdf
  3. independent review: https://www.shrm.org/resourcesandtools/hr-topics/risk-management/pages/osha-svep-punishes-employers.aspx
  4. SVEP case log: https://www.osha.gov/dep/svep_log_03-01-19.xlsx
  5. violation history: https://www.boston.gov/sites/default/files/document-file-03-2017/affidavit_of_licensed_contractor_violation_history_-_2-10-2017.pdf
  6. James Laboe: https://orr-reno.com/our-people/james-f-laboe/

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