By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje, PLLC.
On August 16, 2016, OSHA issued a news release on its website announcing that citations had been issued by the agency against Tyson Foods, Inc. for alleged violations at its chicken processing facility in Center, Texas. The citations proposed penalties of $263,000 for 15 alleged serious and 2 alleged repeated workplace safety violations. Rather than merely announcing the citations against Tyson Foods however, the news release described a “gruesome” amputation injury that led the agency to investigate the facility. The news release also included a statement from Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, scolding Tyson Foods for not doing “much more to prevent disfiguring injuries like this one from happening.” Predictably, the news release and Dr. Michael’s remarks were quoted in media outlets nationwide.
Public shaming of businesses which receive citations is not a new strategy for OSHA. In 2016 alone, more than 500 news releases similar to the one announcing the citations against Tyson Foods have been issued by the agency on its website. At a 2010 conference, Dr. Michaels even boasted of the strategy of “regulation by shaming”, and said OSHA would undertake to issue news releases that “name employers, expose their failings, and detail the serious hazards uncovered in our inspections.” Potential legal exposure is not a deterrent to such news releases since the agency generally enjoys sovereign immunity from claims of defamation and disparagement.
OSHA citations may later be amended, reduced or even dismissed, but the damage to a business’ reputation from an unfavorable news release can be more difficult to mitigate. Bad press is thus yet another reason why the risks of an OSHA inspection must be addressed during the inspection itself, rather than after citations have already been issued.