WASHINGTON – In an effort to deter noncompliance, the Occupational Safety and Health Administration (OSHA) is turning to alternative methods to ensure employers provide safe and healthy workplace, including what has been dubbed the "perp walk" approach.

While the Occupational Safety and Health Act has little bite to it, with penalties that are deemed by some to be too low to deter noncompliance, the agency is taking a proactive approach.

A key tool in OSHA’s arsenal is the power of the news media, and the agency is making the most of this option.

In what is called the “perp walk,” OSHA each week identifies by name several employers that have been cited for occupational safety and health violations.

According to Catherine Wilmarth, a Washington, D.C.-based associate with Kelley Drye & Warren LLP, the threat of outing is seen as a way to keep employers in compliance. She has blogged about the "perp walks" on the firm’s website.

“OSHA publishes these 'perp walks' on their website, which is where we retrieve them from,” she said.

According to Wilmarth OSHA has postings that date back more than a decade, and the practice of "perp walks" likely dates back even longer.

“In short, OSHA has been doing this for a long time, at least 10 years,” she added. “OSHA did, however, make a particular point of ramping up the issuance of these press releases starting in 2010.”

Recently, a Pennsylvania company found itself on the perp walk. OSHA singled out Brooke Glen Behavioral Hospital in Fort Washington on Jan. 17, claiming the company exposes employees to violent attacks from patients.

OSHA has proposed penalties of $32,158

Wilmarth added that whether the perp walks are effective largely depends on a consideration of what the goal of “effectiveness” may be.

“Employers certainly have a fear of any potential OSHA issues they have being publicized by the agency,” she explained. “Such press can lead to the information being picked up by local news sources, who will then publish negative press about the facility.”

As a result, landing on the perp walk potentially can create a black mark on the reputation of a plant or the company for potential customers or employees. It also can induce investigations by and questions from other regulatory agencies or from private citizens eager for a reason to file suit, and can create general ill will.

“What is very important to remember here is that when OSHA publishes information on citations issued during inspections, the public is only receiving one side of the story: what OSHA observed,” Wilmarth cautioned. “This news is being pushed forward before employers have the opportunity to contest the citations, explain why the inspector was wrong, remedy any problems identified, negotiate down the initial fines mentioned, etc.”

As a result, Wilmarth noted that the perp walks end up somewhat “alarmist” and don’t wholly reflect companies’ or facilities’ commitment to safety and the measures they have taken to protect their workers.

Quantifying the effectiveness of the perp walks would be a difficult proposition.

“For one, the class of data you’ve got to explore there—employers who have been subject to an OSHA inspection—is a class self-selected by OSHA,” Wilmarth explained. “Not only that, but the cases that OSHA chooses to publish as news releases are also selected by OSHA, and OSHA has incentive to select the cases that obtain the biggest penalties, have the most egregious violations, or showcase the worst repeat offenders.”

Wilmarth remarked that effectiveness also would hard to quantify from the available information.

“The best thing I can suggest would be to look at employers previously the subject of OSHA 'perp walks' to see if they had later additional enforcement cases — namely, to see if the 'perp walk' actually acted as an effective deterrent,” she said.

While landing on the "perp walk" is the last thing any company wants, Wilmarth pointed out that she is not aware of a specific instance where a company has challenged an OSHA press release, though she noted there certainly are a number of concerns.

“Some argue that these releases rise to a violation of the right to due process, where the government has effectively effected a penalty by publicly condemning an employer before that employer has the ability to exercise their constitutionally guaranteed right to be heard,” she said. “Counts have indeed found these sorts of government press releases to constitute a ‘penalty’ as in Equal Employment Opportunity Commission v. Serrano’s Mexican Restaurants.

A previous version of this story incorrectly identified Catherine Wilmarth as a partner Kelley Drye & Warren LLP--she is an associate with the firm.

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