OSHA PENALTIES TO SHARPLY INCREASE

John M. Williams (williams@rwktlaw.com)

Penalties assessed by the Occupational Safety and Health Administration for workplace safety violations will increase sharply in the next few weeks. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 requires federal agencies to annually adjust their penalty assessments to reflect inflation under a new formulation designed to be simpler and more straightforward than the method currently used. The summer of 2016 has been designated as a “catch up” period during which the agencies are to adjust penalties to catch up with inflation since the last adjustment. This adjustment is based on the difference between the Consumer Price Index in October 2015 and the Consumer Price Index in October of the year in which the agency last adjusted its penalties. OSHA’s maximum penalties have not been increased since 1990; thus, OSHA penalties will significantly increase under the new rule. The interim final rule was published on July 1, 2016.

Overall, OSHA will see a 78% increase in penalties. The maximum for a serious violation will increase from $7,000.00 to $12,471.00. Wilful or repeated violations rise from $70,000.00 to $124,709.00. The new penalties apply to any assessment after August 1, 2016 arising from violations occurring after November 2, 2015.

Employers should be aware of these changes and be prepared to see much higher assessments. There is likely to be an increase in the number of contested penalties under the new structure. Alleged violations which may not have been economical to contest in the past will be more likely to end up in litigation.

The public comment period for the new rule runs through August 15, 2016.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC

CELEBRATE THE FOURTH OF JULY–SAFELY!

John M. Williams (williams@rwktlaw.com)

It’s time again for the 4th July–parades, cookouts, ball games and, of course, fireworks.

When I was a child, my mother often told the cautionary tale of her cousin who lost his fingers (the number varied over time, ranging from a couple to ALL of them) handling fireworks. I never knew the cousin’s name or even if he actually existed. The point of the story, though, was clear: handle fireworks at your own risk. Poor Cousin X learned his lesson the hard way. As I got older, I learned that fireworks are only as safe as the person handling them. I paid little to heed to this, of course.

When I was in high school, my friends and I engaged in sport we called Car Wars. This consisted of driving around shooting bottle rockets at each other’s cars, primarily firing them from our hands. A “kill” was either a shot to the windshield or the more spectacular ordnance through an open window. Burnt hair, flash burns and the occasional eye injury were assumed risks. In other words, we violated every known safety rule. Oh, the fun we had. I do not recommend this as an activity for anyone.

In the summer of 2015, fireworks safety made national news when New York Giants defensive end Jason Pierre-Paul suffered a gruesome hand injury on the 4th July. (WARNING: DON’T LOOK AT ANY PHOTOS OF HIS INJURY UNLESS YOU HAVE A STRONG STOMACH). Pierre-Paul was lighting fireworks when an explosion severely damaged his right hand, jeopardizing his NFL career. Fortunately, Pierre-Paul returned to the field late in the season after multiple surgeries. Tampa Bay cornerback C.J. Wilson lost two fingers in a similar accident on the same day. He retired due to his injury.

We know there are dangers. What can we do?

With approach of the 4th of July, the Occupational Safety and Health Administration has posted a reminder to employers about employee safety handling fireworks. The video Fireworks Safety in Manufacturing and Retail Sales details applicable OSHA regulations and common safety precautions for manufacturing and sales.

Of course, few of us handle large fireworks displays. Most revelers are setting off fireworks in backyards or on streets (or in cars in my case). The American Pyrotechnics Association offers the following tips for safely handling fireworks:

  1. Obey all local laws–fireworks laws vary state-to-state.
  2. Know your fireworks–read instructions before lighting!
  3. A responsible adult should supervise.
  4. Do not drink or drug–celebrate after your show!
  5. Wear safety glasses.
  6. Light one firework at a time and move away quickly.
  7. Set off fireworks in an area away from buildings and vehicles.
  8. Never re-light a dud. Wait 20 minutes and toss it in a bucket of water.
  9. Have a bucket of water and a connected water hose handy.
  10. Don’t carry fireworks in your pocket or fire from a glass container.
  11. Do not use homemade fireworks.
  12. Dispose of spent fireworks in a bucket of water and metal trash can.
  13. Protect pets from fireworks–the noise can terrify many animals.
  14. Don’t point fireworks at people and keep a safe distance away.

While most of this is common sense advice, most of us won’t follow all these tips. The more precautions we take, however, the better off we’ll be. According to the United States Consumer Product  Safety Commission, an average of 230 people per day go to emergency rooms for fireworks injuries around the country during the months surrounding the 4th of July. With even minimal precautions, most of these trips could be avoided.

Jason Pierre-Paul now stars in a public service announcement for fireworks safety. The bottom line is that fireworks injuries are preventable. It’s true that some fireworks are defective. Many years ago, I represented a fireworks retailer in a products liability case. I quickly learned that the quality of fireworks varies wildly depending on the manufacturer. Nevertheless, while some injuries are caused by defective fireworks, most can be prevented by simple precautions.

After reading this, you may react like a childhood friend of mine. He always said that wherever children are laughing and having a good time, some adult is scheming to put an end to it. Remember: It’s all fun and games until someone blows off his hand. Jason Pierre-Paul, C.J. Wilson and my mother’s lamented cousin can attest to that.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

2016 NATIONAL FALL PREVENTION STAND-DOWN

The Occupational Safety and Health Administration’s 3rd annual National Fall Prevention Stand-Down is May 2 – 6, 2016. This event raises awareness in the construction industry of preventing fall hazards. Data from the Bureau of Labor Statistics shows that 337 of the 874 construction-related fatal accidents in 2014 were the result of falls, making them the leading cause of work-related death in construction.

Fall protection violations are OSHA’s most frequently cited hazardous work conditions.  The Stand-Down is aimed at raising awareness of the need for more emphasis on curtailing these preventable accidents. The Stand-Down is part of OSHA’s Fall Prevention Campaign launched in 2012.

The Stand-Down is a voluntary program where employers take a work break to discuss fall hazard prevention. OSHA’s FAQ page provides details on how employers can participate.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

OSHA ANNOUNCES FINAL RULE ON SILICA DUST

John M. Williams (williams@rwktlaw.com)

The Occupational Safety and Health Administration has announced its final rule on respirable silica aimed at protecting American workers from harmful exposure to silica. Crystalline silica has been linked to lung cancer, chronic obstructive pulmonary disease and other serious health issues.

The final rule is a two-part regulation, one aimed at construction and the other at general industry and maritime. The rule calls for implementation of new engineering controls and a reduction in permissible exposure limits with staggered compliance dates. For more details, see OSHA’s website.

Employers should become familiar with the new requirements and prepare plans to meet the applicable compliance deadlines.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

 

MISBEHAVING SUPERVISORS–ARE EMPLOYERS LIABLE FOR THEIR CONDUCT UNDER OSHA?

Melanie Kilpatrick (kilpatrick@rwktlaw.com)

The United States Court of Appeals for the Eleventh Circuit recently issued a decision clarifying when a supervisor’s misconduct is sufficient to establish an employer’s knowledge of the misconduct for purposes of proving a violation of the Occupational Safety and Health Act (“OSHA”).

As part of his case, the Secretary of Labor must show that the employer “knowingly disregarded” OSHA’s requirements.  Ordinarily, if the Secretary can prove that a supervisor had knowledge of a subordinate employee’s violation, that knowledge is imputed to the employer.  However, when the supervisor himself is the one who engaged in the violative conduct, a majority of circuit courts have refused to impute the supervisor’s knowledge of his own misconduct to the employer.  The courts reason that if the Secretary were permitted to establish employer knowledge solely with proof of the supervisor’s misconduct, then the Secretary would not really have to establish knowledge at all.  The mere fact of the violation would satisfy the knowledge element.

In Quinlan v. Secretary of Labor (January 2016), the court was presented with the question of whether a supervisor’s knowledge of a subordinate employee’s violative conduct should be imputed to the employer when the supervisor is simultaneously involved in the same misconduct. In that case, the foreman and a subordinate were working on a concrete block wall and roof platform without fall protection.  The court found that the Secretary had established the foreman’s actual knowledge of the subordinate employee’s misconduct because the foreman was engaged in the misconduct with him.  The court recognized a distinction from a scenario based solely upon the supervisor’s knowledge of his own misconduct and decided to apply the general rule that the supervisor’s knowledge of the subordinate employee’s violation should be imputed to the employer.

Under Quinlan, although employer knowledge cannot be based solely upon proof of the supervisor’s misconduct, a supervisor’s  knowledge of misconduct can be imputed to the employer when the supervisor sees the violation and pitches in to work beside the subordinate.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE 2016

TEN (IN)FREQUENTLY ASKED QUESTIONS ABOUT WORKPLACE SAFETY

John M. Williams (williams@rwktlaw.com)

Typically, lawyers only get questions after legal problems arise. What do I do now? What are my rights? How can I defend this? The best questions often go unasked. This isn’t to suggest that the best question is the most complex. The best are those that, if answered, prevent rather than minimize legal issues. Below are ten questions every employer should ask. If they aren’t frequently asked, they should be:

1. WHO IS IN CHARGE OF WORKPLACE SAFETY?
If you are an employer, the answer is YOU. Formal training increases safety; however, the culture of your business creates a safe work place. A culture stressing safety and accountability should influence all your practices. Every employee is responsible, too, but the standard is set at the top.

2. WHO POLICES THE EMPLOYER?
Under the Occupational Safety and Health Act of 1970, the United States Department of Labor—through the Occupational Safety and Health Administration (“OSHA”)–oversees workplace safety. States may develop their own safety programs which, if approved by OSHA, will shift this responsibility to the state. Currently, 26 states (including, the author’s home state of Kentucky) administer their own programs. Mining operations are governed by the Mine Safety and Health Act of 1977 through the federal Mine Safety and Health Administration. States may also have separate regulatory powers over mines.

3. IS MY BUSINESS COVERED BY OSHA?
Almost certainly. There are limited exceptions, including immediate family members of farm workers, self-employed workers and workers covered by another federal safety act (e.g., mining operations are covered by the Mine Safety and Health Act of 1977).

4. I’VE NEVER SEEN A SAFETY INSPECTOR. IS MY BUSINESS IN THE CLEAR?
No. Unless you are in a heavily regulated industry, you may rarely see an inspector. Do not allow this to lull you into inaction. First, safe work practices should take priority regardless of the law. Second, if a serious work place accident occurs, rest assured that your compliance (or lack thereof) with the law will be thoroughly examined. Third, and most importantly, workplace safety shouldn’t be driven by the presence (or lack thereof) of inspectors.

5. HOW DO I KNOW IF I’M IN COMPLIANCE WITH THE LAW?
Assuming you don’t find out from a government inspector, you should periodically audit your business to ensure compliance. Larger employers have safety personnel dedicated to compliance. For smaller businesses, outside auditors can be used to ensure compliance with current regulatory requirements.

6. HOW DO I TRAIN MY EMPLOYEES?
There are many available training resources. Private training companies are readily available as well as OSHA assistance. OSHA has a program dedicated to assisting small business, in particular. Consider implementing an Injury and Illness Prevention Program in your workplace.

7. WHAT IS AN ILLNESS AND INJURY PREVENTION PROGRAM?

It is a voluntary, employer-implemented safety program set up under OSHA guidance. An IIPP is designed to manage workplace safety with a program tailored to the employer’s business. In some states, such as California, an IIPP is required by law.

An IIPP is a detailed safety manual covering hazard communications, accident reporting and response, emergency actions, safety inspections, record-keeping and other safety requirements. Refer to OSHA or your state’s safety program for details. All employees should be familiar with the IIPP. Periodic review and update is essential, too.

8. AREN’T THESE GOVERNMENT FINES JUST THE COST OF DOING BUSINESS?
No. The goal should be no penalties. In industries like mining, inspections are so frequent and regulations so detailed that zero citations may be difficult to achieve. Regardless, best practices require a goal of no violations. A baseline of “some” violations may contribute to a culture where safety is lax. Moreover, civil penalties can be substantial, perhaps far beyond what one would consider a cost of doing business.

9. WHEN SHOULD I HIRE A LAWYER?
We lawyers might be inclined to answer: “TODAY!” In truth, you likely do not need a lawyer for your day-to-day safety compliance. The vast majority of interaction with regulators will be non-adversarial. There is no need to filter everything through a lawyer. Nevertheless, there are times when a lawyer should be retained:

Large proposed penalties: What is considered “large” is relative to the size of the employer. While this is a bit of judgment call, always consult attorney if the penalty is such that it will cause serious financial strain.
Serious violations: When faced with a serious safety violation, the employer should contact a lawyer early in the process. Remember: A proposed penalty is just that—proposed. You have the right to defend yourself.
Litigation: In most administrative law courts, employers may represent themselves. Cost savings make this tempting. Actual litigation (depositions, court appearances, etc.) should be handled by an attorney.

10. SHOULD I JUST FIGHT EVERYTHING?
No. This is known as the Scorched Earth Philosophy. This employer/philosopher has concluded that it will battle the “Government” on everything. This is never a good approach for (at least) three reasons:

First, the Government has more resources and time than you do. It can do battle with you as long as necessary, while you spend your work time and resources (attorneys’ fees and expenses) fighting losing causes.

Second, not everything is defensible. Many violations are valid. If you receive a well-founded safety violation, your resources are better spent correcting the violation and ensuring that it doesn’t happen again.

Third, it sends the wrong (or maybe the correct) message. Does the employer put more emphasis on fighting or on safety? If you contest everything, soon your credibility becomes an issue. The Government is made up on individuals, just like your business. Those people are human, too, and make judgments. If an employer gets a reputation of being an obstructionist, nothing will go smoothly.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

Increased Focus on Prosecution of Workplace Safety Violations

Noelle Holladay True (true@rwktlaw.com)

Legal representation is always helpful when contesting monetary penalties associated with violations of workplace safety laws, but now legal counsel is even more important to offer protection to companies and individuals who may be criminally charged with such violations.

Last month, the Department of Labor (DOL) and Department of Justice (DOJ) signed an agreement to cooperate with one another in the investigation and prosecution of workplace safety violations. The December 17, 2015 Memorandum of Understanding between DOL and DOJ applies to workplace violations of the Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. §§ 651-678, and the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. §§ 801-965. The OSH Act provides criminal sanctions for a willful violation that results in the death of an employee, while the Mine Act provides criminal sanctions for the knowing or willful violation of a mandatory standard. In addition, both Acts provide criminal sanctions for giving advance notice of inspection activity, and for the falsification of documents required to be kept under the Acts.

DOJ determines whether to prosecute for violations of all federal statutes, including ones occurring under the OSH and Mine Acts. Under the new initiative, prosecutors are encouraged to add other criminal charges that often occur with workplace safety violations, such as charges of making false statements, obstruction of justice, witness tampering, and conspiracy. DOL has committed to increased information sharing with DOJ, including making its investigative files available for case development or litigation (if otherwise permitted by law), and DOJ is encouraged to consider the DOL’s criminal referrals.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

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Warning for All Executives: The Feds Are Watching

Marco M. Rajkovich, Jr. (rajkovich@rwktlaw.com)

Whether you think well of former Massey Energy CEO Don Blankenship or dislike him; whether you are a “Friend of Coal” or a “War on Coal” supporter; Blankenship’s conviction should get the attention of any Executive in any industry. The federal prosecutor on the case said it was the first time a chief executive of a major corporation was convicted of a workplace crime. “Unprecedented” was the word. Blankenship was tried on charges of conspiring to break safety laws, defrauding mine regulators and lying to financial regulators and investors about safety. After a 9 week trial, and 10 days of deliberations, the jury brought back a guilty verdict of conspiring to willfully violate mine safety standards. This one will be analyzed for years, despite any appeals, despite any sentences imposed and despite any hindsight pontifications of how the case should have been tried by both sets of attorneys. One fact is certain—an executive got convicted.

The federal prosecutor maintained that Blankenship owed fiduciary duties to the company for compliance with mine safety and health laws and claimed that Blankenship was a “micromanager who meddled in the smallest details at the mine.” Purporting to sum up the thoughts of the other jurors, one juror pointed to testimony that Blankenship had told his subordinate manager to start up a mining process, after knowing it was illegal, telling the manager to not let the federal regulators run the mine. Despite a Hazard Elimination program, the jurors were informed that violations purportedly still went up. The jurors were presented with evidence of an emphasis on production and had concluded that Blankenship was responsible for safety failures.

In addition to his concerns over sentencing and restitution, Blankenship faces a rejection of an agreement with now bankrupt Alpha Natural Resources, Inc. (which bought Massey) to pay for his legal services incurred in the defense. Although the total final figure has not been disclosed, court documents as of April 1, 2015 show unpaid fees estimated at $5.8 million.

Two weeks after the verdict, the U.S. Department of Justice and the U.S. Department of Labor announced new plans to investigate and prosecute worker endangerment violations. Regardless of the ultimate outcome of the Blankenship case, a new day may have dawned for executive criminal liability.

So, what does all of this mean for any executive? While the legal mechanism has been in place for decades to go after top managers for workplace safety, the target just got repainted in bright red. What is your current involvement in the daily workplace safety of your company? What should be your involvement? A thorough inventory of how you conduct business is in order.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC 2016

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