Obermayer Alert
May 14, 2009
News from the Labor and Employment Department

Obama and OSHA--Change Is Coming

OSHA’s reputation as being mostly bark with little bite will be a thing of the past, if the Obama administration has its way. The government is sending a message to employers that it plans to crack down on employer violations of the Occupational Safety and Health Act (“OSH Act”) with a one-two punch: first, by greater enforcement of existing laws; and second, by passing legislation that would amend the OSH Act to expand coverage to more workers, increase civil and criminal penalties for violators, and increase protections for whistleblowers.

Greater Enforcement of Existing Workplace Safety Laws

On April 30, 2009, Jordan Barab, Acting Assistant Secretary for the Occupational Safety and Health Administration (“OSHA”), told a House Committee that OSHA is implementing several initiatives to bolster enforcement of the nation’s workplace safety laws.  He focused on the need to come down hard on recalcitrant employers that repeatedly ignore their workplace safety obligations. Citing a recent criminal prosecution of a New Jersey-based company for repeated, serious workplace safety violations that resulted in the conviction of the company, an $8 million fine, and federal prison time of up to 70 months for the employer’s plant manager, finishing department superintendent and human resources manager, Barab said that he is looking at whether the OSHA is referring the proper number of criminal prosecution cases to the Department of Justice (“DOJ”), and how to work better with the DOJ to prosecute those cases. 

Barab advised that OSHA is also preparing a new program to identify and inspect employers with poor workplace safety records. Barab explained that “[t]he [Enhanced Enforcement Program] was initiated in September, 2003 to help OSHA focus its resources on those employers who are indifferent to their obligations under the OSH Act, concentrating limited enforcement assets on those employers who not only failed to meet their obligations under the OSH Act, but who also appeared unlikely to decide on their own to improve working conditions at their workplaces.” According to Barab, “OSHA had discovered that a number of employers continued to expose workers to very serious dangers even after receiving OSHA citations for worker exposure to hazards that caused serious injuries and fatalities.”

Therefore, according to Barab, the program has been preliminarily renamedthe Severe Violators Inspection Program.  It will be a comprehensive revision of the existing Enhanced Enforcement Program and may include:

• more focus on large companies and less on small businesses;
  
• mandatory follow-up inspections by OSHA inspectors;
  
• more inspections of other establishments of an identified company;
  
• additional enhanced settlement provisions; and
  
• a more intensive examination of an employer’s history for systemic problems that would trigger additional mandatory inspections.

According to Barab, “[a]lthough the details are still being worked out, the new program will ensure that recalcitrant employers not meeting their obligations under the OSH Act are targeted for additional enforcement action.” 

Proposed Legislation

On April 23, 2009, Lynn Woolsey (D-California), Chairwoman of the House Education and Labor Subcommittee on Workforce Protections, introduced legislation that would amend the OSH Act to expand coverage to more workers, increase civil penalties, add criminal penalties for violators, and increase protections for whistleblowers. If passed, the Protecting America’s Workers Act (H.R. 2067) would make the following changes to OSHA:

• Willful violations of OSHA resulting in the death of a worker would be a felony punishable by up to 10 years imprisonment (up from 6 months), and willful violations resulting in “serious bodily injury” a felony punishable by up to 5 years imprisonment. 
• Raise maximum civil penalty for any employer who willfully or
• repeatedly violates its OSHA requirements from $70,000 to $120,000 for each violation and minimum penalty from $5,000 to $8,000 for each violation.  However, if such violation results in the death of a worker, the civil penalty shall be not more than $250,000 and not less than $50,000 (or $25,000 if the employer has 25 or fewer employees). 
• Raise civil penalties for serious violations, non-serious violations, failure to correct violations and failure to post a notice of employee protections from $7,000 to $12,000 for each violation. However, if such violation results in the death of a worker, the civil penalty shall be not more than $50,000 and not less than $20,000 (or $10,000 if the employer has 25 or fewer employees). 
• Extend coverage of OSHA to public employees at the federal, state and local levels. 
• Protect from discharge, discipline or discrimination: 
  • any employee who reports an injury, illness or unsafe condition to the employer; and 
  • any employee who, after seeking from the employer but does not obtain a correction of the circumstances, refuses to perform his/her duties if s/he has a reasonable apprehension that performing such duties would result in serious injury to, or serious impairment of the health of, employees.
  • Extend the time limit for employees to file complaints of discrimination with OSHA from 30 days to 180 days (measured from the day of the alleged discriminatory act).
    

OSH Act violations are likely to become more expensive for the corporate employer, and will present a greater threat to the personal freedom of officers and managers. Therefore, it is more important that ever for employers to be familiar with the OSH Act standards applicable to their operations, to assess their compliance, and to bring themselves into compliance when they fall short.

Our attorneys are available to assist employers as they work through OSH Act compliance issues and defend OSH Act enforcement actions. For more information, or if you have a question about this or another employment matter, please call or e-mail us.

Obermayer Rebmann Maxwell & Hippel LLP
One Penn Center 19th Floor
Philadelphia, Pennsylvania 19103

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