Page 36 - MetalForming June 2010

Doug Ehlke, a national board- certified civil trial lawyer, has for more than 20 years represented metalforming companies in OSHA litigation and in labor- union elections. His law practice emphasizes labor law, personal injury, product liability, probate, estate planning and environ- mental and employment discrimination law.
Ehlke Law Offices
28840 11th Avenue South Federal Way, WA 98003-3705 Phone: 253/839-5555
Fax: 253/874-5475
E-mail: dehlke@ehlkelawoffices.com
OSHA has begun enforcing with a lot more willful citations. Eye-popping penalty increases are around the corner. Starting this June, there will be a programmed set of penalty increases and enforcement procedures to target employ- ers who ignore OSHA standards. OSHA is implementing a new Severe Violator Enforcement Program (SVEP) and increasing civil penalty amounts. The new maximum penalties are as follows:
Serious violations will rise from $7000 to $12,000 each. Willful violations escalate from $70,000 to $250,000 each. Instead of looking back three years on repeats, OSHA will look back five years. The new programs can be found at www.osha.gov/dep/svep-directive.pdf.
SVEP focuses OSHA enforcement resources on employers who endanger workers by repeatedly demonstrating indifference to their responsibilities under the law. This supplemental enforcement tool includes increased OSHA inspections in these worksites, mandatory follow-up inspections, and inspections of other worksites of the same employer where similar hazards and deficiencies may be present. Several administrative changes to the penalty calculation system in OSHA’s field oper- ations manual also will become effective in the next several months, increasing the overall dollar amount of all penalties while maintaining OSHA’s policy of reducing penalties for small employers and those acting in good faith.
OSHA’s news release of the new penalty program can be found at www.osha.gov/pls/oshaweb/owadisp.sh ow_document?p_table=NEWS_RELEA SES&p_id=17544.
willful citation allegations in machine guarding, training, lockout/tagout, and in accident investigations. At the same time, OSHA investigators are holding private interviews with supervisors, maintenance foremen, construction site leadpersons and mangers. Videotaped interviews of employees are becoming more common, as are multiple sub- poenas for documents such as reports from safety consultants, insurance risk loss auditors, ISO 9000 auditors and workers compensation files.
Employees and employers have legal rights to have a representative present during interviews. More and more are exercising that right, to avoid unfair interviews and leading questions or potential misrepresentations.
Interview techniques that seem to be popular include comparing answers of workers from different shifts, requests for the worker to sign the inspector’s interview notes, and followup inter- views.
Notable features of the enhanced penalty and enforcement program on recalcitrant employers include:
• Mandatory OSHA follow-up inspections.
• Inspection of other worksites in different states owned or operated by the same targeted employer.
• Five-year “look back” for repeat citations.
• High-gravity “serious” violations related to the standards identified in the SVEP as targets can be cited instance- by-instance as individual (not grouped) citations. This could potentially lead to a fine of $70,000 or even $250,000 per machine or violation.
• Creation of a nationwide referral
34 METALFORMING / JUNE 2010
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YOU & THE LAW DOUGLAS B.M. EHLKE
OSHA’s New Severe Violator Enforcement Program—Penalties Up to $250,000 Each
Our office is seeing a steep rise in