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Southeast U.S. has become hotspot for workplace safety law

Population redistribution, aggressive litigators and jurisdictional advantages could be contributing to the rapid increase of Occupational Safety and Health Administration (OSHA) law in the Atlanta-based U.S. Court of Appeals for the Eleventh Circuit, which includes Alabama, Florida and Georgia, according to Bloomberg BNA.

"There isn't just one factor but a perfect storm of factors," says Katy Willis, a partner at Mobile, Ala.-based Burr Forman. "Manufacturing jobs are here, intense enforcement from [OSHA's] Region IV, a new penalty structure, and employer awareness of rights are all contributing."

OSHA has inspected more than 4,000 worksites so far this year in the Eleventh Circuit region; the agency has conducted roughly 500 fewer inspections in the Fifth Circuit, which includes Louisiana, Mississippi and Texas and has a similar population. Nearly one-third of the substantive decisions issued by Occupational Safety and Health Review Commission administrative law judges have involved worksites in the Eleventh Circuit.

The area has experienced an influx of manufacturing jobs, as well as an increase in construction. So far this year, OSHA has conducted more than 2,000 inspections in the Southeastern states at construction sites and more than 1,000 at manufacturing sites.

Carla Gunnin, a principal in the Atlanta office of Jackson Lewis PC, says OSHA's Region IV "is willing to spend resources on investigations and cases, possibly more than other regions."

A citation typically is followed by informal settlement discussions, and an employer may continue discussions after it files a notice of contest. However, Howard Mavity, co-chair of Atlanta-based Fisher Phillip's workplace safety and catastrophe management practice group, says Region IV does not shy away from litigation.

"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 says. "Even deputies or senior regional officials will involve themselves in cases and provide muscular mediation in certain complex cases."

More contests have stemmed from OSHA's August 2016 penalty structure, which increased maximum penalties 78 percent, and employer awareness of rights to contest citations.

"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," Willis says. "Employers are also better informed now of their rights to contest citations."

Not all cases originating in Alabama, Florida or Georgia are reviewed in the Eleventh Circuit; employers can petition one of three circuit courts—the court that contains the worksite, the court where the company's principal office is located or the U.S. Court of Appeals for the District of Columbia. Willis says the Eleventh Circuit often is faster to rule, so employers may want a case in a slower circuit to allow more time to craft meaningful abatement measures.


10/10/2017




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