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
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
“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
“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.