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
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.