By Brent I. Clark and Craig B. Simonsen

The Occupational Safety and Health Administration (OSHA) has recently filed a complaint with the Occupational Safety and Health Review Commission (OSHRC) which it asserts “marks the second such time that the department has expressly sought enterprisewide relief from an employer.” This recent complaint was filed against the DeMoulas Super Markets (DeMoulas). The previous complaint, which is still pending, was filed against the U.S. Postal Service in July 2010 for correction of alleged electrical work safety violations at 350 postal facilities throughout the nation.

The complaint against DeMoulas asks for enterprisewide relief and is allegedly based upon alleged hazards OSHA found during inspections of various DeMoulas stores. This includes two inspections that resulted in citations and proposed OSHA fines totaling $589,200, which DeMoulas has contested to the OSHRC. The citations allege thirty willful, repeat, and serious violations of workplace safety standards at its stores in Rindge and Concord, N.H. The complaint alleges that employees at multiple DeMoulas stores which were not actually inspected by OSHA were exposed or likely to be exposed to fall hazards from unguarded, open-sided work and storage areas, including storage lofts and atop produce coolers and freezers. In addition, it alleges DeMoulas failed to protect employees in the produce, deli, and bakery departments against laceration hazards from knives and cutting instruments by not conducting job hazard analyses (JHA) that would have identified the need for hand protection, and by not providing hand protection to workers exposed to the hazards. One of the bases for OSHA enterprisewide allegations is a 2006 informal settlement agreement whereby the Company allegedly agreed to do a JHA at all locations.

Complaints seeking enterprisewide relief involve numerous complex factual and legal issues. This appears to be OSHA’s newest strategy to aggressively enforce OSHA compliance. Whether the OSHRC or the courts will permit this new tactic is uncertain and will likely take time to resolve. In the meantime, employers with multiple facilities with similar operations should take note of this new strategy by OSHA and take appropriate action to address this new risk, including the manner in which they manage OSHA inspections of a single workplace and whether they will enter into informal settlement agreements with OSHA.