OSHA Public Shaming Resumes Under Biden

By Robert G. Chadwick, Jr., Partner, Freeman Mathis & Gary, LLP.

As noted in a previous post on this blog, one of the strategies by OSHA under the Obama administration was public shaming of employers which received citations. This strategy included agency press releases scolding employers for not protecting their employees. These press releases were often republished by media outlets thereby reaching a wider audience.

The strategy of public shaming was touted by the agency as an effective deterrent to safety violations. Nevertheless, the strategy proved to be unfair to many employers. Once issued, OSHA citations can be amended, reduced or even dismissed, but the damage to a business’ reputation from a misleading news release can be difficult to undo.

Follow-up posts (here and here) on this bog documented the brief pause, resumption and eventual ban of the public shaming strategy under the Trump administration. In justifying the ban, a Sept. 24, 2020 internal memorandum highlighted an important problem with the strategy: “News releases … can prove misleading if, for example, [OSHA] issues a release at the time a proceeding is first initiated, and is ultimately found to be unjustified in its enforcement action.” The ban thus limited news releases to citations with successful outcomes.

The blog post regarding the Sept. 24, 2020 ban posed the question of what would become of the ban if Joe Biden was elected president? OSHA appears to have already answered this question. In February, the agency resumed the practice (here) of publicizing OSHA citations as soon as they are issued without awaiting a successful outcome.

As emphasized by many posts on this blog, an effective strategy for defending against OSHA enforcement begins before, not after, an OSHA inspection has taken place. The risk of a misleading press release by OSHA is yet another risk of not adopting such a strategy.

Robert G. Chadwick, Jr. frequently speaks to non-profit organizations regarding occupational safety and health issues. To contact him for a speaking engagement, please e-mail him at rchadwick@realclearcounsel.com.

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