Law firm’s scare tactics to poultry companies about OSHA

I’ve heard a lot of myths over the years about OSHA. Some people think, for example, that OSHA is motivated to assess penalties because it needs the money to operate. (Truth: OSHA penalties go to the US Treasury and OSHA doesn’t get any share of them.)  There have been times when misinformation or truth-stretching is perpetuated by law firms, probably trying to drum up business from anxious employers.

Here’s an example from the law firm Fisher & Phillips LLP. It’s a blog post on the site JDSUPRA Business Advisor. The lead sentences set the tone with phrases such as “a multiple front attack” and “startling OSHA citations.”

The post, directed at poultry processing companies, refers to citations issued earlier this month to Case Farms. The post reads:

“OSHA recently reminded the Poultry Industry that it has not lost interest in a multiple front attack on processors, as shown by the almost $1,000,000 in citations issued against a Midwestern processor. You should view these startling OSHA citations as part of an overall DOL strategy involving bringing actions and encouraging employees to bring ergonomic, wage-hour and other claims.”

Let’s start with the Case Farms citations. Federal OSHA and North Carolina OSHA have a long history with this company. These most recent citations (here and here) are for 24 repeat violations, three willful violations, and dozens of serious ones. They were identified by safety inspectors since December 2014 at its plant in Winesberg, Ohio.

OSHA is rightfully throwing the book at Case Farms. The company company previously agreed to fix its safety problems but has failed to do so. In these recent inspections, OSHA found that the company didn’t make good on those promises. The citations are not “startling” because OSHA is out of line, but because of the way the company flaunts the law.

The attorney’s blog post also reports on a letter sent jointly by the USDA’s Food Safety Inspection Service (FSIS) and OSHA about a new poster to be displayed in poultry processing plants. The poster provides information to poultry workers about symptoms of musculoskeletal injuries and urging workers to report their symptoms to their employer. OSHA notes:

“Getting medical care early for work-related injuries and illnesses can improve healing and prevent serious disease.”

That’s a message that responsible employers should welcome.

The attorney claims however:

“The policy behind this new poster is obvious. It comes on the heels of the release of NIOSH’s study finding ergonomic hazards in food processing positions requiring repetitive motions.”

In truth, the “policy behind the new poster” is a USDA regulation. Not a NIOSH study or an OSHA rule.

In July 2014, USDA issued a regulation to “modernize the poultry slaughter inspection system. It was a rule endorsed by poultry companies and the National Chicken Council. The regulation establishing the New Poultry Inspection System (NPIS) are at 9 CFR Part 381 and include the following requirement for those poultry processes who elect to use the NPIS:

“[to implement] a program to monitor and document any work-related conditions of establishment workers”

Specifically:

“Notification to employees of the nature and early symptoms of occupational illnesses and injuries, in a manner and language that workers can understand, including by posting in a conspicuous place or places where notices to employees are customarily posted, a copy of the FSIS/OSHA poster encouraging reporting and describing reportable signs and symptoms.”

The attorney seems to suggest that USDA and OSHA were out of line when they sent the poster earlier this year to poultry companies. He writes:

“Does the Law Require You to Post this Poster?”

and says:

“First, the letter is not a regulation. It’s merely a letter requesting that action be taken. Heads of government agencies cannot mandate action with a simple demand.”

But for those firms who adopt the NPIS, the poster is not just a “simple demand.” It’s required by the USDA regulation.

Despite the attorney’s suggestion that USDA and OSHA have overstepped their bounds, he advises:

“Given the very limited time and resources it takes to post the new notice, it is worth doing so to avoid drawing the ire of an OSHA inspector who may visit your site. It is simply not worth risking the issuance of a citation when you can easily comply with this request.”

There’s a new myth: that OSHA will issue a citation to a company that fails to display the USDA poster.

In multiple conversations with OSHA, the agency says it does not have authority to enforce a USDA regulation. It can only enforce its own rules.