Workforce Bulletin

In an article written by Corporate Counsel's Shannon Green published on May 23, 2013, Epstein Becker Green labor and employment attorneys, Jeffrey M. Landes and Susan Gross Sholinksy, were interviewed concerning the legal issues that retail industry employers are currently facing.

By: Barry A. Guryan

In a case recently decided by the U.S. Court of Appeals for the Eleventh Circuit (National Labor Relations Board v. Harman and Tyner Inc., d.b.a. Mardi Gras Casino, Hollywood Concessions, Inc., 2013 U.S. App. LEXIS 7555), the Court affirmed a District Court’s decision to reject the National Labor Relations Board’s (“NLRB”) petition to obtain temporary injunctive relief seeking to reinstate six discharged employees pending the outcome of an administrative hearing brought as a result of a NLRB Complaint brought against Mardi Gras.  This is one of a ...

By Eric J. Conn, Head of the OSHA Group at Epstein Becker & Green

Introduction

OSHA recently issued a White Paper analyzing the first 18 months of its controversial enforcement initiative known as the Severe Violator Enforcement Program ("SVEP").  Despite mounting evidence to the contrary, the White Paper somehow concludes that the SVEP is “off to a strong start,” and that it “is already meeting certain key goals,” including:

1. Successfully identifying recalcitrant employers who disregard their OSH Act obligations; and
2. Effectively allocating OSHA's follow-up enforcement resources “by targeting high-emphasis hazards, facilitating inspections across multiple worksites of employers found to be recalcitrant, and by providing Regional and State Plan offices with a nationwide referral procedure.”

A candid review of the publicly available SVEP data, however, exposes SVEP's underbelly, and casts doubt on the Program’s effectiveness.  Most notably, SVEP:

1. Disproportionately targets small employers;
2. Provokes 8x as many challenges to the underlying citations as compared to the average OSHA enforcement action;
3. Encounters significant obstacles in executing follow-up inspections of SVEP-designated employers; and
4. Finds virtually no systemic safety issues when follow-up and related facility inspections are conducted.

 

SVEP Background

We have written quite a bit about the SVEP previously on the OSHA Law Update Blog, but here is some background about what it is, who is being targeted, and what the consequences are.  On June 18, 2010, OSHA instituted SVEP to focus its enforcement resources on recalcitrant employers, whom OSHA believes demonstrate indifference to their employees' health and safety.  SVEP replaced the much-maligned Enhanced Enforcement Program ("EEP"), a George W. Bush era enforcement program also intended to target wayward employers.  The EEP was criticized as ineffective and inefficient because its broad qualifying criteria created so many cases that OSHA struggled to conduct follow-up inspections.  OSHA, therefore, scrapped the EEP and instituted SVEP with narrower qualifying criteria and a better infrastructure for pursuing follow-up inspections.

Employers qualify for SVEP if they meet one of the following criteria:

1. Any alleged violation categorized by OSHA as "Egregious";
2. 1+ Willful, Repeat or Failure-to-Abate alleged violations associated with a fatality or the overnight hospitalization of three or more employees;
3. 2+ Willful, Repeat or Failure-to-Abate alleged violations in connection with a high emphasis hazard (e.g., falls, amputations, grain handling, and other hazards that are the subject of an OSHA National Emphasis Program); or
4. 3+ Willful, Repeat or Failure-to-Abate alleged violations related to Process Safety Management (i.e., avoiding the release of a highly hazardous chemical).

By  James P. Flynn

The New Jersey Legislature was overwhelmingly in favor of a measure that would have barred employers from obtaining social media IDs and other social media related information from employees and applicants. Click here for A2878 as passed. But Governor Chris Christie vetoed A-2878 because it would frustrate a business’s ability “to safeguard its business assets and proprietary information” and potentially conflict with regulatory requirements on businesses in regulated industries such as finance and healthcare. Click here for the Governor’s Veto ...

By: James P. Flynn

The New Jersey Legislature was overwhelmingly in favor of a measure that would have barred employers from obtaining social media IDs and other social media related information from employees and applicants. Click here for A2878 as passed.  But Governor Chris Christie vetoed A-2878 because it would frustrate a business’s ability “to safeguard its business assets and proprietary information” and potentially conflict with regulatory requirements on businesses in regulated industries such as finance and healthcare. Click here for the Governor's Veto ...

By Gretchen Harders and Michelle Capezza

On May 8, 2013, the Employee Benefits Security Administration of the Department of Labor (the “DOL”) issued Technical Release 2013-02 (the “Release”) providing important guidance under the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (the “Affordable Care Act”) with regard to the requirement that employers provide notices to their employees of the existence of the Health Insurance Marketplace, generally referred to previously as the Exchange. These ...

By Gretchen Harders and Michelle Capezza

On May 8, 2013, the Employee Benefits Security Administration of the Department of Labor (the “DOL”) issued Technical Release 2013-02 (the “Release”) providing important guidance under the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (the “Affordable Care Act”) with regard to the requirement that employers provide notices to their employees of the existence of the Health Insurance Marketplace, generally referred to previously as the Exchange. These ...

By Gretchen Harders and Michelle Capezza

On May 8, 2013, the Employee Benefits Security Administration of the Department of Labor (the “DOL”) issued Technical Release 2013-02 (the “Release”) providing important guidance under the Patient Protection and Affordable Care Act, as amended by the Health Care and Education Reconciliation Act of 2010 (the “Affordable Care Act”) with regard to the requirement that employers provide notices to their employees of the existence of the Health Insurance Marketplace, generally referred to previously as the Exchange. These ...

In another major defeat for President Obama's appointees to the National Labor Relations Board (NLRB or Board), the US Court of Appeals for the DC Circuit found that the Board lacked the authority to issue a 2011 rule which would have required all employers covered by the National Labor Relations Act (the "Act"), including those whose employees are not unionized, to post a workplace notice to employees.

By Adam C. Abrahms and Steven M. Swirsky

In another major defeat for President Obama’s appointees to the National Labor Relations Board (NLRB or Board), the US Court of Appeals for the DC Circuit found that the Board lacked the authority to issue a 2011 rule which would have required all employers covered by the National Labor Relations Act (the “Act”), including those whose employees are not unionized, to post a workplace notice to employees. The putative Notice, called a “Notification of Employee Rights Under the National Labor Relations Act,” is intended to ostensibly ...