OSHA’s Severe Violator Enforcement Program: A Severe Injustice

By Eric J. Conn, Chair of Conn Maciel Carey’s national OSHA Practice Group

It has been five years since OSHA launched its Severe Violator Enforcement Program (“SVEP”), and two years since an agency White Paper trumpeted the program’s “strong start” and progress SVEP White Paper Imageon “key goals.”  A closer examination of OSHA’s SVEP data, however, reveals that:

  • SVEP disproportionately targets small employers;
  • SVEP cases are contested more often than other OSHA citations;
  • OSHA has trouble conducting follow-up inspections of small employers, especially those in the construction industry; and
  • The program fails to reach the recalcitrant employers it was designed to target.

The fact is, SVEP (which succeeded OSHA’s controversial Enhanced Enforcement Program) has shown troubling trends from the start. Not only do the criteria weigh against smaller employers, but the consequences for employers thus labeled are dire, placing them in a precarious position, even before OSHA has proven that the employer violated the law at all, let alone in such an egregious manner as to warrant inclusion in SVEP.

Repeat Overkill

SVEP was instituted to target “enforcement efforts on recalcitrant employers who demonstrate indifference to the health and safety of their employees.” To that end, OSHA created four categories that would land an employer in SVEP. However, over the life of the program, one qualifying category has been invoked predominantly: an employer who has two or more willful, repeat, or failure-to-abate citations related to High Emphasis Hazards (NF-2WRF). Read More

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