"All we [in the national office] did was remind regional administrators that we have policy guidance in the 'Field Information Reference Manual' (FIRM) that advises what steps to go through if you're going to change a classification from a willful to unclassified," Fairfax said in an interview.
He explained that the need to remind the administrators of OSHA's existing policy developed because of a series of New York Times articles questioning the agency's practice of not referring for criminal prosecution cases in which willful violations of OSHA standards caused workers to die. Only willful citations can be referred to the Department of Justice for possible criminal prosecution, and the Times series reported that OSHA often reclassified willful citations, even when workers died.
"After the Times pieces, there seemed to be an impression out there that we weren't following our policies and procedures, so we felt that a reminder of our existing policy was warranted," said Fairfax. "That's all it was."
Fairfax maintained that he raised the FIRM policy during a telephone conference with the regional administrators neither to change policy, nor because he believed OSHA employees were failing to follow existing procedures. Legal sources familiar with the agency reported, however, that after Fairfax's FIRM reminder many OSHA employees were no longer settling willful citations by changing them to unclassified, believing the national office did not want them to do so.
Fairfax expressed frustration that he had received telephone calls and read press reports, including an Occupational Hazards article ("OSHA Backs Tougher Enforcement Policy, Lawyers Say") concerning the supposed new policy.
"As with any conversation, things get misheard and misconstrued," he said. "As soon as we started hearing that people had misunderstood it, [Deputy Assistant Secretary of Labor for OSHA] Davis Layne went right back on the conference call and re-clarified that it was not a new policy."
OSHA's FIRM gives area directors considerable authority to reclassify willful citations. One way such a change can be justified is if the employer has advanced "substantial reasons" why the willful classification is questionable but is willing to pay the penalty as proposed. The FIRM does not define what constitutes a substantial reason.
A second way a change can be justified is if the employer is willing to pay all or almost all of the proposed penalty and make "significant concessions."
The OSHA manual provides guidance, but not an exhaustive definition of the meaning of significant concessions. A concession big enough to warrant switching a willful citation to an unclassified "may include" any of the following elements:
- A corporate-wide settlement agreement;
- Providing employees safety training of a specified type and frequency;
- Hiring a safety and health consultant and implementing the recommendations;
- Establishing a comprehensive safety and health program;
- Reporting new construction jobs or worksites to OSHA;
- Waiving warrants for specified inspections.