By Brent I. Clark and Meagan Newman

OSHA’s request for enterprise-wide relief was denied in a recent ALJ ruling.  This new decision is the first to deny a request from OSHA to extend the employer’s obligation to abate alleged violations at locations other than those cited. Enterprise-wide relief has been a part of OSHA’s more aggressive enforcement posture in recent years.

The Secretary of Labor sought the relief in Delta Elevator Service Corp., dba Delta Beckwith Elevator Co., (OSHRC No. 12-1446), a case in which the employer was cited for three serious violations of OSHA’s general industry electrical/PPE standards.  The Secretary later withdrew two of the citations, leaving only a single citation and a request that the employer be required to abate the cited condition in all of its locations, i.e. enterprise-wide.  The Secretary alleged that work like that involved in the underlying citation was performed by Delta at over 2000 other locations and involved the same alleged violations of the standard.  Hence, the Secretary alleged that under Section 10(c) of the OSH Act, the “other appropriate relief” that should be directed in this case included abatement at each and every of the over 2000 other worksites.  ALJ Coleman flatly rejected the Secretary’s argument that the relief sought was available under the facts of the case and the decision strongly suggests that such relief may not ever be available under the OSH Act.  It is not clear whether the Solicitor will seek review of this ALJ decision by the OSH Review Commission and this is something to watch.

The Secretary’s request for enterprise-wide relief in this case is not a new concept in the world of OSHA enforcement.  The agency has sought similar relief in other enforcement actions, however, this is the first time an ALJ has ruled on the legality of such a request.  OSHA and employers have voluntarily included such enterprise-wide provisions in settlement agreements for some time.  In June 2011, OSHA issued a Compliance Directive regarding OSHA’s use of Corporate Settlement Agreements, with the intent of expanding abatement beyond a single location.  The Directive explained that OSHA may include provisions in settlement agreements to expand abatement requirements to apply to all of a company’s locations rather than the single location where the alleged violation was found and cited.  Voluntarily entering into an enterprise-wise settlement agreement is significantly different than OSHA’s position that the Commission can impose enterprise-wide liability and abatement under the Act.

Employers who have been issued citations where enterprise-wide relief is sought by the agency should know first, that they are not obligated to enter into any agreement that extends the obligation to abate beyond the cited location.  In addition, such employers should closely examine and consider challenging any claim for enterprise-wide relief.