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When Cal/OSHA Comes Calling: How to legally protect your rights and avoid fines.
Wednesday, April 21, 2010
Presented by the Employer Resource Institute
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When Cal/OSHA Comes Calling: How to legally protect your rights and avoid fines.
Todd Christopher Hunt 2029 Century Park East, Suite 3500 Los Angeles, California 90067-3021 [email protected]
(310) 201-5207
Objectives
• OSHA enforcement initiatives and trends.
• Federal versus State OSHA Plans.
• Penalty and liability policies.
• How to reduce the risk of Cal/OSHA citations.
• How to manage a Cal/OSHA inspection.
6 | © 2010 Seyfarth Shaw LLP
Many Different Categories of Employers and Employees On-Site
• Owner • Owner’s Representative • General Contractor • Subcontractors • Temporary or Leased Employees • Borrowed Employees • Safety Consultants 7 | © 2010 Seyfarth Shaw LLP
OSHA Liability
• Initially, each employer responsible for its own employees • Employer had to ensure that its employees were protected against: ► “Recognized Hazards” To Employee Safety and Health (General Duty Clause) ► Hazards Identified In Specific Regulations (Title 8 of the California Code of Regulations, e.g. falls, heat illness, electrical, bloodborne pathogens, etc.) 8 | © 2010 Seyfarth Shaw LLP
OSHA Liability
• Liability was expanded under “Multi-Employer Workplace Doctrine” • Now, each Employer is potentially responsible for the safety and health of another Employer’s Employee, if the Employer: ► Creates the hazard ► Exposes an Employee to the Hazard ► Is responsible to correct the hazard, or ► Is the controlling Employer on the site • Harris Construction Company, Inc. DAR (34 COR 40-5895) 9 | © 2010 Seyfarth Shaw LLP
Aggressive Enforcement
• Use of interpreters • Mandatory “Failure to Report” penalty (§ 342(a); $5,000) • Emphasis on “Serious,” “Willful” and “Repeat” citations • Requests for root cause analysis and company insurance audits • Cautionary tale: Use of knowledge of previous inspection to justify willful citation 10 | © 2010 Seyfarth Shaw LLP
Aggressive Enforcement
• Employee by Employee Citations ► PPE Standards ► LOTO procedures • Use of General Duty Clause (§ 3200, et seq.) ► Combustible Dust ► Workplace Violence ► New chemicals (not officially listed) 11 | © 2010 Seyfarth Shaw LLP
OSHA Recordkeeping
• September 30, 2009 – National Emphasis Program (NEP) – OSHA Directive Number 09-08 (CPL 02) • California second “state plan” to adopt • Intended to identify varying degrees of under-recording of workplace injuries and illnesses on OSHA Form 300 (29 CFR § 1904) • Target – low rate employer establishments operating in historically high rate industries • Establishments with 40 or more employees in select industries that have reported a Days Away, Restricted, or Transferred (DART) rate from 0.0 to 4.2 in 2007 will be targeted 12 | © 2010 Seyfarth Shaw LLP
OSHA Recordkeeping
NEP Impact on Other Industries • OSHA inspectors receive intensive training on recordkeeping.
• OSHA will inspect 300 Logs
at every inspection
.
• Increased recordkeeping citations with enhanced penalties.
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OSHA Recordkeeping
Scope of NEP Document Inspection • 2007 & 2008 records • OSHA Forms 300, 300A and 301 • Medical records • Worker’s compensation records • Insurance records • Payroll/absentee records • Company safety incident reports • Company first aid logs • Alternate duty rosters • Disciplinary records relating to injuries and illness 14 | © 2010 Seyfarth Shaw LLP
OSHA Recordkeeping
Civil • Potential citations for under reporting or other errors ► Other than serious ► Serious ► Willful ► Repeat ► Failure to Abate ► Egregious (violation-by-violation citation) Criminal • Liability of employer • Liability of management representative for false certification 15 | © 2010 Seyfarth Shaw LLP
OSHA Recordkeeping
Analysis of Employer Incentive Programs • Evaluate policy.
• Does it encourage employees to underreport in exchange for prizes or other rewards.
• Conduct employee interviews focused on whether employees have been trained to report injuries or illnesses or discouraged to report.
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Protecting America’s Workers Act
• First Introduced in 2005. Reintroduced in 2009.
• Increased protection for whistleblowers.
• Changes to civil penalty structure ► Willful violation min. $50K up to $100K, can go up to $250K ► Prohibits “unclassified” citations.
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Criminal Law Liability
OSHA
• Potential liability if: ► Fatality ► Violation of specific regulation ► Violation was willful, and ► Violation caused fatality • Penalty ► 6 months imprisonment, and/or ► $500,000 fine per fatality for corporation ► $250,000 fine per fatality for individual
NOTE: No Miranda Warnings Necessary
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Criminal Law Liability
Cal/OSHA
• Obstruction of justice for interfering with inspection • Falsification of records • Lying to federal inspector • Misrepresentation of subcontractor status to avoid Cal/OSHA liability 19 | © 2010 Seyfarth Shaw LLP
Protecting America’s Workers Act
•Criminal Sanctions ► Amputation, disfigurement, loss of brain capacity. ► Changes crime from misdemeanor to felony (min. one year jail time).
► Subject to imprisonment as well as monetary penalties.
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Whistleblower Laws
• Potential Employer Liability If: ► Employee engages in “Protected Activity” (e.g., makes complaint about safety or health violation to employer; files complaint with Cal/OSHA; participates in Cal/OSHA inspection), and ► Employee suffers “Adverse Action” (e.g., termination, discipline, loss of benefits), and ► Employer takes Adverse Action and retaliates against employee because of Protected Activity ► ► ► Employee may file complaint with OSHA seeking damages Cal/OSHA will investigate complaint If Cal/OSHA finds reasonable cause that there was retaliation, case may be filed court ► All states have Whistleblower laws that may apply 21 | © 2010 Seyfarth Shaw LLP
Whistleblower Suits
• Employee right to refuse work if there is imminent danger.
• Changes under pending legislation include: ► Scope of protected activity to include reporting injuries or unsafe conditions to employers ► Compensatory damages ► Private right of action 22 | © 2010 Seyfarth Shaw LLP
Where do we go from here?
• More important than ever to establish strong unavoidable employee misconduct defense.
(1) Program for the specific hazard, e.g. fall, electrical.
(2) Employee training (documentation) (3) Prior enforcement (disciplinary records) (4) No reasonable opportunity for supervisor to identify and correct hazard.
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Unavoidable Employee Misconduct
• How do we establish this defense?
► A good hazard assessment ► Training —there may be a cultural, literacy or language barrier.
► Need to use translators, interpreters.
► Need enforcement —yet, new supervisors many times have had no training in delivering discipline.
► Maintain records of enforcement/discipline.
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How to Reduce the Risk of Cal/OSHA Citations
• Most Frequently Cited OSHA Standards (Pay Attention to Relevant Areas) ► Hazard Communication (Employee Training and MSDS’s) ► Lockout Tagout (Authorized Employee Training) ► Lockout Tagout (Machine Specific LOTO Procedures) ► Personal Protective Equipment (Certification of Hazard Assessment) ► OSHA 300 Log Recordkeeping ► Electrical Safety (Safe Work Practices, AEC Flash Protection) ► Powered Industrial Trucks (Daily Truck Inspections, Operator Retraining) ► Machine Guarding 25 | © 2010 Seyfarth Shaw LLP
How to Reduce the Risk of OSHA Citations
• Effective Use of Safety Committees • Make sure the committee has the right personnel (motivated and committed) • Train committee members in OSHA compliance issues • Consider empowering safety committee members to conduct work observations • Consider having committee members conduct “mock” safety inspections and document findings (be prepared to fix what is found) 26 | © 2010 Seyfarth Shaw LLP
How to Reduce the Risk of OSHA Citations
• Keep good minutes of meetings and issues (descriptions are critical) • Assign corrective action to specific persons • Track status of corrective action and document close out • Watch out for: delayed close out, repeat items • Create task forces for complicated fixes/problems • Create a mechanism for assigning an issue to management for resolution 27 | © 2010 Seyfarth Shaw LLP
Inspection Management (cont.)
• Inspection Plan – Basic Blocking Tackling (1) Point person and backup/weekend person (Murphy’s Law is that accidents will happen during the night shift and on weekends).
(2) Relevant written OSHA policies and logs should be readily available.
Keep copy in easily accessible binder – Update annually or as otherwise required 28 | © 2010 Seyfarth Shaw LLP
Inspection Management (cont.)
• When Cal/OSHA Arrives: ► Politely receive the compliance officer.
► Show compliance officer to conference room/empty office.
► Immediately notify the point person.
► Point person takes control of the inspection is responsible for all communications with compliance officer and shadows compliance officer throughout inspection.
► First impression is important.
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Cal/OSHA Liability
• Cal/OSHA inspections ► Employee rights ► Employer rights ► Cal/OSHA rights • Employee rights ► Right to private one-on-one interview with inspector ► Right to refuse interview 30 | © 2010 Seyfarth Shaw LLP
Cal/OSHA Liability
• Employee rights ► Right to have another person present ► Right to end interview at any time ► No duty to sign statement or be tape recorded or photographed ► Cannot lie to inspector 31 | © 2010 Seyfarth Shaw LLP
Cal/OSHA Liability
• Employer rights ► Right to limit inspection to complaint or accident ► Right to accompany inspector ► Right to attend non-private employee interview ► No duty to produce documents not required by law 32 | © 2010 Seyfarth Shaw LLP
Cal/OSHA Liability
• Employer rights ► Right to end inspection if disruptive ► Right to require search warrant (should confer with senior management and legal counsel on decision) 33 | © 2010 Seyfarth Shaw LLP
Cal/OSHA Liability
• Cal/OSHA rights ► To conduct inspection, either with consent or search warrant ► Right to use video camera ► Cannot record voice without notice and consent ► The “Document Request Form” ► Right to truthful responses 34 | © 2010 Seyfarth Shaw LLP
Inspection Management (cont.)
• Plain View Doctrine ► Compliance officer can issue citations for any violations in “plain view.” ► If Compliance officer doesn’t see it he/she can’t cite you for it.
• Admissions ► Never admit to a violation (“I’ll check on that”).
► Never admit you don’t have something (“let me get back to you”).
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Inspection Management (cont.)
• Immediately Correct Unsafe Conditions Identified by The Compliance Officer Without Admitting That The Condition Constitutes a Violation ► May avoid the citation ► May lessen the classification or penalty of a citation 36 | © 2010 Seyfarth Shaw LLP
About Your Speaker
Todd Hunt, Esq.
is a partner in the Los Angeles office of Seyfarth Shaw, LLP. He is thoroughly experienced in all aspects of civil litigation and OSHA appeal proceedings, from early evaluation and investigation through trial, in the areas of trade secrets (prosecution and defense), safety, product liability, ADA Title III access, commercial and government contract matters. Hunt’s engineering and information systems background, as well as his extensive representation of manufacturers, provides him with valuable insight into the design, application and protection of technologies and the application of available legal protections and defenses to them. He frequently advises employers concerning their internal safety programs and represents them in appeals of Cal/OSHA citations and penalties resulting from work place injuries and fatalities and complaints. Hunt has successfully represented technology companies, media companies, hospitality entities, retail establishments, food processing facilities, industrial factories, chemical companies, warehousing facilities, recycling entities, and outdoor advertising companies in numerous trials, appeals and hearings.
38 | © 2010 Seyfarth Shaw LLP
Thank you!
Todd Christopher Hunt 2029 Century Park East Suite 3500 Los Angeles, CA 90067 [email protected]
(310) 201-5207
Thank You
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