OSHA Backs Tougher Enforcement Policy, Lawyers Say

OSHA is pressuring its staff to avoid settling some enforcement actions with companies, according to legal sources familiar with the agency.

Until recently, OSHA would sometimes convert a "willful" citation to the "unclassified," category, often in exchange for an organization's commitment to improvements in workplace safety. That practice has stopped as a result of the "political heat" generated by a series of articles in the New York Times that criticized OSHA enforcement, according to lawyers who spoke on condition of anonymity.

An OSHA spokesperson denied there had been any change in policy, and asserted that the agency's field staff have only been reminded of existing procedures for using unclassified citations. OSHA officials have repeatedly denied the Times articles have altered agency enforcement procedures.

But lawyers currently defending clients from OSHA enforcement actions say the agency's attorneys have adopted a much harder line on settling willful violation cases.

"OSHA attorneys in the Boston, New York, and Atlanta regions have told me there will be no more conversions of 'willfuls' to 'unclassifieds,'" said one source. Secretary of Labor Elaine Chao is responsible for this change in policy or practice, the source continued.

Another attorney who defends companies from OSHA citations had a slightly different take on the shift. According to this view, the tougher line comes not from a formal decision, but rather is an ad hoc political judgment made by OSHA regional administrators.

"I know of an RA [regional administrator] who had read the tea leaves from Washington and had concluded on her own that it would be most politic to go with unclassifieds no longer," said the attorney. "She told the people under her she will no longer re-categorize willful violations because of her reading of the political fallout from the New York Times articles."'

If true, one possible consequence of the ad hoc explanation is inconsistency among the regions with respect to the settlement of willful citations. "I talked to someone in another region and the person read the tea leaves differently," the source explained. "They won't convert fatality cases [but would change non-fatality willful cases] to unclassifieds because of the PR nightmare it could create."

The lawyers agreed that OSHA's harder line would result in greater litigation costs for the agency, because clients are almost never willing to accept a willful violation.

As a result, the new practice could backfire as the agency appears unprepared for the additional drain on its limited resources, the sources said. One OSHA defense attorney speculated whether "to avoid the cost and hassle of additional litigation, this could eventually have the effect of reducing the number of willful citations that are issued."

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