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Construction Employers and OSHA Violations:
Willful Violations, Civil and Criminal PenaltiesRecent Federal Cases Against Contractors, Best Practices and Operating Procedures
Today’s faculty features:
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
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speakers. Please refer to the instructions emailed to registrants for additional information. If you
have any questions, please contact Customer Service at 1-800-926-7926 ext. 1.
WEDNESDAY, AUGUST 11, 2021
Presenting a live 90-minute webinar with interactive Q&A
Kevin D. Bland, Shareholder, Ogletree Deakins, Costa Mesa, CA
Taylor E. White, Shareholder, Winstead PC, Dallas, TX
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Anatomy of an OSHA Serious Injury/Fatality Investigation: Are You
Prepared?
Presented by:
Kevin D. Bland Shareholder
Ogletree Deakins
695 Town Center Drive
Suite 1500
Costa Mesa, CA 92626
(949) 813-1120 Cell
Agenda
• How can construction counsel limit liability for clients facing
OSHA investigations and/or OSH Act violations?
• How can employers ensure worksites are complying with all of
OSHA's COVID-19 safety and health procedures?
Unique Challenges of Fatality and Catastrophic Injury Investigations
• Deal with the emergency first
• Notify OSHA and all critical corporate actors– California reporting requirements slightly differ
▪ Practice pointers for non-fatalities
• Anticipate and strategically respond to additional third parties involved
• Expect more timely and thorough agency actions– OSHA’s specific compliance directive
Internal Accident Reports
• Should you prepare an internal accident report?
• When?
• What are some benefits?
• What are the risks?
• Key concept – avoid speculation, opinions, or conclusory statements about possible causes of the accident
• California point– Consider dual reports
▪ IIPP minimum (public)
▪ Internal RCA (privileged)
Dealing with Co-Workers
• On-site support
• Company communication piece
• Management employees: emphasize need to limit “chatter”
– Proper use of potential privileges
Dealing with News Media
• Direct to proper contact
• Generic response
• Anticipate contact of other parties with the media– OSHA
– Other employers
Dealing with Families of Victims
• Primary point of contact at company
• Provide sufficient information
• Address other concerns, such as personal property and financial details
• Anticipate OSHA’s contact with the family
Dealing with Law Enforcement/District Attorney
• Careful cooperation
• Strategic responses to requests for information and/or documents
• Potential criminal charges
• Equipment
Analyzing Potential Exposure and Liability (cont)
• Potential areas for criminal prosecution
– Section 17(e) of the OSH Act
– Potential criminal penalties for willful violation resulting in fatality
– California (LC 6425) – Whole different world – more to come…
California Criminal Liability
• (Willful” safety violations causing death (Labor Code 6425)
• Corporations:
• FELONY
• UP TO APPROX $6 MILLION ($1.5 MM, PLUS 310%)
• Victim Restitution
• Individuals:• FELONY
• UP TO 3 YEARS STATE PRISON
• UP TO APPROX $1 MILLION ($250K, PLUS 310%)
• Victim Restitution
California – What is Willful
• “Willful” – refers to CONDUCT (no knowledge of illegality is necessary); AND
• Causation – true as long as it was a “substantial factor” (contributory negligence of others or of deceased is not defense)
California – Individual Criminal Liability
• LC 6425: “Any employer and any employee having direction, management, custody, OR control over any employment, place of employment, or of any other employee and willfully violates” OSHA safety rules
• Translation: supervisors who knew about, and could have stopped, the violation(s) but chose not to
Expert Analyses and Reports
• Helpful when you need to thoroughly analyze possible causes.
• Retain through outside counsel to preserve confidentiality.
• Outside counsel can also scrutinize the strength of analyses and conclusions for later use.
• When selecting an expert, technical qualifications are important, but industry experience and reputation are critical.
Managing Expectations and Outcomes
• Fatality or catastrophic injury investigations will almost certainly result in a citation
• OSHA political priorities and enforcement bias
• A working assumption that you did or failed to do something
• If your defense is “employee misconduct,” let the evidence speak for itself– Don’t oversell this defense too early
Construction Employers and OSHA
Violations: Willful Violations, Civil and
Criminal Penalties
Taylor E. White
Shareholder, Winstead PC
Emphasis Programs▪ Trenching and Excavation (National)
▪ Effective 10/1/18
▪ “OSHA believes that there is a potential for a collapse in
virtually all excavations.”
▪ Penn. criminal charge—trench collapse (11/24/20)
▪ Respirable Crystalline Silica (National)
▪ Effective 2/4/20
▪ “[S]and, concrete, stone, and mortar contain crystalline
silica.”
▪ Common Regional Emphasis Programs
– Construction (generally)
– Fall Hazards
– Cranes
Surviving OSHA Visits
▪ We will:
o Discuss a common issue for construction
employers—how to survive an OSHA visit.
o Discuss employer rights—what can you claim and
what you can’t.
o Discuss best practices—what works and doesn’t
work for your business.
▪ We won’t:
– Suggest a uniform approach—all hazards and
construction sites are different.
– Answer all questions that may arise.
Review, Revise, and Update
▪ What?
▪ Operating procedures
▪ Safety manuals
▪ OSHA logs
▪ Who?
▪ Managers (operations leaders)
▪ Safety professionals▪ Why?
▪ Accuracy
▪ Consistency with reality
▪ New or different regulations
▪ Contract compliance
▪ Insurance requirements
Educate and Communicate
▪ Who?
▪ Managers
▪ Safety professionals
▪ Non-managerial staff???
▪ What (in additional to safety and
operations requirements)?
▪ Rights during investigations
▪ Communication and response strategy/plan
▪ Documents
▪ Why?
▪ Consistency of response
▪ Preservation of rights and privileges
Rights? What Rights? ▪ To deny entry to OSHA, if no warrant
▪ To verify credentials of OSHA officer
▪ To legal and company representative
▪ To understand the scope of investigation
▪ To document evidence collected by OSHA
▪ To seek limitation or clarification of document requests
▪ To protect confidential information and trade secrets
Exercise of Rights = Cautious Cooperation
Known Hazards and Employee Complaints
▪ Remember the Definition of “Willful.” “[E]mployer either knowingly failed to comply with a legal
requirement (purposeful disregard) or acted with plain indifference
to employee safety”
Ignorance of the requirements is no defense.
▪ Address Employee Complaints. Have an established procedure.
Designate a manager to address.
Document resulting actions or remedial measures.
▪ Stay Ahead of Open and Obvious Hazards.▪ Manager-led walk-around (e.g., walking-working surface hazards,
etc.)
▪ Appropriate signage and posters (e.g., confined space signage,
OSHA-3165 poster, etc.)
To Contest, or Not to Contest ▪ Remember Key Deadlines
15 working days after receipt of OSHA Notification of Citation and Penalty = hold informal
conference AND contest
21 days after service of OSHA complaint with OSHRC = file answer
▪ Remember Your Options
Reduction of penalty amount
Reclassification of citation
▪ Understand Business Impact
Rejection of bids
Increased insurance premiums
Additional OSHA scrutiny
Surviving OSHA’s COVID-19 Enforcement
Plan of Action:
▪ Assess risk to employees.
▪ Educate / train employees.
▪ Require proper sanitation and PPE.
▪ Implement proper hierarchy of controls.
▪ Properly address safety complaints.
▪ Record work-related COVID-19 illnesses.
DOCUMENT YOUR EFFORTS!
A Word (or Three) about Contracts
▪ Who Does What?
▪ Training
▪ Hazard abatement
▪ Provide PPE
▪ Safety obligations
▪ Control / supervision
▪ Minimum standards
▪ Rights to stop work
▪ Indemnification
▪ Governed by state law
▪ Needs to be properly worded
DISCLAIMER▪ These materials should not be considered as, or as a substitute for, legal advice,
and they are not intended to nor do they create an attorney-client relationship.
▪ Since the materials included here are general, they may not apply to your individual
legal or factual circumstances.
▪ You should not take (or refrain from taking) any action based on the information you
obtain from these materials without first obtaining professional counsel.
▪ The views expressed in this presentation do not necessarily reflect those of the
firm, its lawyers, or clients.
Construction Employers and OSHA
Violations: Willful Violations, Civil and
Criminal Penalties
Taylor E. White
Shareholder, Winstead PC