Law & Order: SVEP – Catching and Exposing Bad Employers

By: Jennai E. Gaskin

In July 2011, 182 employers found themselves on the Severe Violators List.[1]   Since June 2012, this number has risen to 330 employers.[2]  The promulgation of the Severe Violator Enforcement Program (SVEP), maintained by the Occupational Safety and Health Administration (OSHA), has been noted as the driving factor behind this trend.[3]  With continued research and investigation, it cannot be doubted that this number will steadily increase. As we move towards building labor opportunities, it is not hard to see why the Department of Labor is taking large steps in promoting the protection of our workers. Taking a look at the structure of OSHA and the SVEP shows how these evaders are being exposed.

After realizing that our nation’s workers needed to be protected in order to support interstate commerce, Congress enacted the Occupational Safety and Health Act in 1970 which in turn created the Occupational Safety and Health Administration.[4]  Among the several purposes of OSHA, the organization was a means of “encouraging employers and employees in efforts to reduce the number of occupational safety and health hazards at their places of employment”.[5] Additionally, it allowed the Secretary of Labor to “set mandatory occupational safety and health standards” and to develop and enforce them.[6]  It is within this scope that OSHA has created the Severe Violator Enforcement Program.

The Severe Violators Enforcement Program (SVEP) is definitely a turn in the right direction towards catching and penalizing employers who blatantly violate OSHA’s standards. In 2010, the Bureau of Labor Statistics determined a final count of 4,690 fatal work-related injuries.[7]  Fortunately, this number has been decreasing as preliminary reports for 2011 show a number of 4,609 fatal work-related injuries.[8]  Programs such as the SVEP may be a factor in this decrease. As bad employers find themselves constantly being watched, more initiatives may be made to protect employees and avoid embarrassment.

The purpose of SVEP is to expend resources on inspecting those employers who have “demonstrated indifference to their OSHA obligation by committing willful, repeated, or failure-to-abate violations”.[9]  These violations must be those that are “serious violations…which must be egregious”.[10]  Under OSHA, employers are mandated to furnish to their employees “a place of employment free from recognized hazards that are causing or likely to cause death or serious physical harm” and “comply with occupational safety and hazard standards . . . .”.[11]  The SVEP program is designed to report and penalize those employers who fail to meet these obligations.

Under OSHA, willful or repeat violations of standards by employers subject them to a penalty of no more than $70,000, but no less than $5,000, for each violation.[12]  Willful violations resulting in death to an employee can subject employers to both imprisonment and fines.[13]  If it is a repeated violation, employers face a $20,000 fine and imprisonment for up to a year.[14]  The SVEP adds on to these penalties through several enforcement actions. These include mandatory follow-up inspections, corporate-wide agreements, enhanced settlement provisions, and even federal court enforcement.[15]

Courts have long established the elements of both willful and repeat violations. The Eleventh Circuit Court of Appeals determined in J.A.M. Builders, Inc. v. Herman that although OSHA does not define the term “willful”, in its simplest form, such violations are “an intentional disregard of, or plan indifference to, OSHA requirements”.[16]  Moreover, to be considered “willful”, there must be proof that the employer “knew of an applicable standard or provision prohibiting the conduct or condition and consciously disregarded the standard”, or if the employer did not know, they showed such “reckless disregard for employee safety” to the extent that “one can infer that…the employer would not have cared that the conduct or conditions violated [the standard]”.[17] In J.A.M. Builders, Inc., the court found that requiring employees to work dangerously close to live wires was a willful violation.[18]  In establishing the elements of a repeated violation, the Eleventh Circuit determined in D&S Grading Company, Inc. v. Secretary of Labor, that a violation is repeated where “(1) the same standard has been violated more than once, (2) there is a “substantial similarity of violative elements between current and prior violations”, and the prior citation has become a final order of the commission.[19] There, the court determined that significant failures on behalf of the employer, such as “failure to train employees in the recognition and avoidance of unsafe conditions” and “failure to require employees to wear hard hats” on two occasions, constituted as a repeated failure.[20]

While the results generated by the enactment of the SVEP appear to be hopeful, there is more to be done. The Bureau of National Affairs, Inc. has reported that OSHA officials are continuing to review the SVEP to develop and improve the criteria used in determining who severe violators are.[21]  Standards must be kept current and tight to ensure that these evaders do not continue slipping through the cracks. The Severe Violator List can be viewed online.[22]


[1] Bruce Rolfsen, Employers on OSHA Severe Violators List Nearly Doubled in Past Year, Data Show, The Bureau of Nat’l Affairs, Inc. (July 26, 2012), http://www.bna.com/employers-osha-severe-n12884910841/.

[2] Id.

[3] Id.

[4]  U.S. Dep’t of Labor: Occupational Safety & Health Admin.,   http://www.osha.gov/about.html (last visited Sept. 28, 2012).

[5] Occupational Safety and Health Act, 29 U.S.C.A §651(b)(1) (2012).

[6] §651(b)(3).

[7] U.S. Dep’t of Labor: Bureau of Labor Statistics, http://www.bls.gov/news.release/cfoi.nr0.htm (last visited Sept. 28, 2012).

[8] Id.

[9] U.S. Dep’t of Labor: Occupational Safety and Health Admin., http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=4503 (last visited Sept. 28, 2012).

[10] Id.

[11] Occupational Safety and Health Act, 29 U.S.C.A §654(a)(2012).

[12] §666(a).

[13] §666(e).

[14]  Id.

[15] U.S. Dep’t of Labor: Occupational Safety and Health Admin., http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=DIRECTIVES&p_id=4503 (last visited Sept. 28, 2012).

[16] J.A.M. Builders, Inc., 233 F.3d 1350, 1355 (2000).

[17] Id.

[18] Id.

[19] D & S Grading Co., 899 F.2d 1145, 1147 (1990).

[20] Id. at 1148.

[21] Bruce Rolfsen, Employers on OSHA Severe Violators List Nearly Doubled in Past Year, Data Show, The Bureau of Nat’l Affairs, Inc. (July 26, 2012), http://www.bna.com/employers-osha-severe-n12884910841/.

[22] Id.

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