Why the Southeast Is a Hotspot for Workplace Safety Law

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By Lars-Eric Hedberg

Atlanta has become the de facto capital of federal workplace safety and health law.

Population redistribution, aggressive litigators, and jurisdictional advantages may be contributing to the groundswell of OSHA law in the Eleventh Circuit, area attorneys say.

“There isn’t just one factor but a perfect storm of factors,” Katy Willis, a partner in the Mobile, Ala., office of Burr Forman, told Bloomberg BNA. “Manufacturing jobs are here, intense enforcement from [OSHA’s] Region IV, a new penalty structure, and employer awareness of rights are all contributing.”

The Occupational Safety and Health Administration has inspected more than 4,000 worksites this year to date in the area of the Atlanta-based U.S. Court of Appeals for the Eleventh Circuit, which comprises Alabama, Florida, and Georgia. OSHA has conducted roughly 500 fewer inspections in Louisiana, Mississippi, and Texas, which have a similar population and compose the Fifth Circuit.

Among the substantive decisions issued by Occupational Safety and Health Review Commission administrative law judges, nearly one-third have involved worksites in the Eleventh Circuit. The independent federal agency provides trial and appellate review of contested citations and penalties resulting from inspections.

Jobs + Population Movement = Construction

A flow of manufacturing jobs to the region has supported both residential and commercial construction, Carla Gunnin, a principal in the Atlanta office of Jackson Lewis PC, told Bloomberg BNA.

“The population is moving south and west,” Andrew Gross, an attorney from Atlanta, told Bloomberg BNA. “There is more construction here, especially residential and homebuilding, and therefore an OSHA emphasis on this area. We’re seeing big companies such as DR Horton, KB Home, and Lennar building in Florida, Georgia, and the Carolinas rather than in Michigan, Ohio, and Pennsylvania.”

So far this year, OSHA has conducted over 2,000 inspections in the Southeastern states at construction sites and over 1,000 at manufacturing sites.

Although construction appears to drive OSHA law, the region is home to many industries, according to Howard Mavity, co-chair of Atlanta-based Fisher Phillip’s workplace safety and catastrophe management practice group.

“It has booming construction, auto manufacturing, paper and pulp, and agriculture industries,” Mavity told Bloomberg BNA.

Region IV Enforcement

Region IV uses its area offices, knowledge, and resources to enforce workplace safety and health standards, attorneys say.

“It is willing to spend resources on investigations and cases, possibly more than other regions,” Gunnin, a former OSHA trial attorney, said.

A 2015 OSHA rule requiring reporting for injuries may contribute to increased enforcement, Gunnin said. Region IV may use this information and its resources to conduct on-site inspections, which are more likely to lead to citations.

Willis said that “the region is clear on what it expects from employers and has specific programs for certain industries, such as auto suppliers, and these beget citations.”

Settlement Discussions, Litigation

Informal settlement discussions usually follow a citation, and an employer may continue discussions after it files a notice of contest.

“I get the impression Region IV generally enjoys working out reasonable settlements, but if they can’t, they have no problem trying a case,” Mavity said. “Even deputies or senior region officials will involve themselves in cases and provide muscular mediation in certain complex cases.”

OSHA’s August 2016 penalty structure, which increased maximum penalties 78 percent, and employer awareness of rights to contest citations are leading to more contests, Willis said.

“Smaller employers, such as mom and pop construction companies, are thinking why not contest and see if our chances are better with the solicitor than the regional office,” she said. “Employers are also better-informed now of their rights to contest citations.”

The Atlanta Regional Solicitor’s Office prosecutes alleged violations before a review commission administrative law judge.

“We have competent regional solicitors, who aren’t afraid to try cases,” Mavity said. “The southeast is a hotbed for OSHA lawyers. Some take aggressive clients and positions.”

These attorneys will take cases up to the Eleventh Circuit to get the law more narrowly applied, Gunnin said.

Which Circuit Is Available?

Employers can petition one of three circuit courts for review of a final order from the commission: the court that contains the worksite, the court where the company has its principal office, or the U.S. Court of Appeals for the District of Columbia Circuit.

So not all cases originating in Alabama, Florida, or Georgia end up in the Eleventh Circuit. Wal-Mart, headquartered in Bentonville, Ark., recently asked the Eighth Circuit to review an administrative law judge’s ruling that it violated the blood-borne pathogen standard at a Florida warehouse.

The Eleventh Circuit has issued four OSHA law decisions and may decide three more cases by year’s end. It issued five last year.

None of the circuit’s three states has an OSHA-approved state plan, so employers contest their citations in federal administrative and court proceedings.

“Roughly half of the states are under federal OSHA and the other half are under state,” Gross said. “So you must consider that appeals of state administrative proceedings are taken to state courts, rather than review commission appeals taken to federal circuit courts of appeal.”

State administrative proceedings in the Carolinas never make it to the Fourth Circuit, for example.

How fast a circuit court proceeds also plays a part in whether an employer files a petition.

“As a matter of practice and procedure, the Eleventh Circuit is faster to rule and generally more prompt in turning cases around,” Willis said.

An employer may want a case in a slower circuit to allow it time to craft meaningful abatement measures, Willis said. Or a related investigation from another agency, such as the Environmental Protection Agency, is ongoing and an adverse OSHA ruling could be used against the employer there.

Employer-Friendly Circuit Myth

The idea that the Eleventh Circuit leans employer may have come from the 2013 ComTrandecision, Gunnin said.

The court held and Gross argued that conduct violating the OSH Act, when performed by a supervisor, doesn’t itself establish the employer-knowledge element of a violation. The secretary of labor must also prove that the standard is applicable, a hazard existed, and an employee was exposed to it.

ComTran spurred litigation and appeals, and may have changed how people perceived this circuit,” Gunnin said. “In its wake, there was some thinking the Eleventh is an employer-friendly circuit, but lately it hasn’t been as favorable. It’s been unpredictable.”

She said this phenomenon could also be seen in the D.C. Circuit after its 2012 Volks decision.

“But ultimately the law narrows and courts tightly draw factual distinctions,” she said.

Some employers and the government are simply looking for more clarity on OSHA law from the Eleventh Circuit.

“In other circuits, OSHA legal issues are more well-defined,” Gunnin said.

“We are desperate for guidance from the court,” Mavity said. “But the ability to have that is minimized by unpublished decisions,” which are non-precedential.

The Eleventh Circuit has issued three unpublished decisions this year on cases up from the review commission. It later published one on motion.

Short Commission Forced Cases Up

A short-staffed review commission, which until recently lacked a full three members, may have contributed to the composition of the full Eleventh Circuit’s OSHA docket, Gunnin said.

“These cases in the Eleventh Circuit would’ve gone up to the review commission from administrative law judges, but with two commissioners the panel passed on cases or split,” she said.

Because the ALJ rulings became final orders, employers could appeal them to the Eleventh Circuit without another level of review. The deferential standard of review applied to final orders, the fact circuit judges aren’t workplace safety law experts, and the time and expense cut against petitioning a circuit court for review, Gunnin said.

But the short-staffed review commission left employers and the secretary of labor with little choice.

“When you don’t have a full review commission, that creates problems because it is the best place to try these cases,” Gunnin said. “Both employers and the secretary are reluctant to take unreviewed ALJ decisions to the top, but one level of review is insufficient.”

To contact the reporter on this story: Lars-Eric Hedberg in Washington at lhedberg@bna.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bna.com

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