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8/7/2019 US Legal Aspects
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May 11, 2007 1
US Legal Aspects Part I
Caterpillar Corporate Security
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References
j Handbook of Loss Prevention and Prevention
j Introduction to Security
j Protection of Assets Manual
chapters 16, 20, and 21
j Security and Loss Prevention; An Introduction
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Basic Aspects
jCriminal Law is found in USC title 18
jStatutory law is legislated
jCommon law represents Mala in Se
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Contract Liability
jBetween 2 or more persons
An Agreement
To do or not to do something Obligation flow to each party
Must have legal capacity to contract
Contract must be legal
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Contracts are
jEnforced by a court
jPertinent to private security in that
Provider may be liable Provider hire employees by contract
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Express Contract
jAgreement uttered or declared
jBy the parties involved
jAt the time the contract is made
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Implied Contract
jNot created
jNot evidenced
jNo explicit agreementj Inferred by law
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Price
jValue stated in the contract
jReasonable value is
Value of goods Value of services
Or determined by court or arbitrator
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Written Agreements
j Time Bar
jAre not complete agreements
Unless stated sojOral agreements not inconsistent with
contract
May be considered binding
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Warranties
jA statement that
Goods or services are as described
jA person can collect damages to the extentof injury
jCan limit itself
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Torts (Civil Wrongs)
jWillful or negligent
jNo agreement required
jOperates to: Compensate
As deterrent
Evidence of disapproval
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Basic Elements of Tort
jAn Act
jAn Omission
jThat brought about an intended resultjNegligence
A failure to exercise reasonable or ordinary
care Higher standards when professionals are
involved
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Tort Examples
jBattery
jAssault
jFalse ImprisonmentjTrespass
jFraud
jDefamationj Invasion of privacy
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Injured Party Must Prove
jFeasor acted negligently
jThe negligent act was the cause of loss or
injuryjGross Negligence
Greater lack of concern
Punitive damages available
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Agency Relationship
jOne party acts for another
jAn agency can be
An express appointment Ratification of actions
Permitting one to act with authority
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Respondeat Superior
jThe master is responsible for the actions of
his servant while the servant is acting on the
masters behalf
j Is common law matter
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The Right of Control
j Is the test between the master and servant
relation (co-employment)
j
Proprietary security are servantsjContract are servants of providing company
jThe distinction is how the work is done
Companys way Providers way
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The Right of Control
Proprietary officers are servant of the company
Contract officers are employees of the
supplying agency therefore not consider
servants of the employing organization
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Liability Under Contract
j Is is officer acting within scope of
employment
j
Was act wrongfuljWas officer employed to perform act
jWithin time and space limits
jMotivation by Desire to serve
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Hands Off Contract
jMight avoid liability
jNon-delegable duty
Some acts cannot be delegated Courts can find negligence in hiring or exercise
in lack of control
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Vicarious Liability
j Indirect legal responsibility
jCan avoid with independent contractor on
part of tort feasor is establishedjLiability of employer for employee if:
Employee acting within scope of work
Acting within scope when injury occurred
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Employer Liability
j If contracted work is wrongful
jWork is public nuisance
jWork is inherently dangerousjAct of independent contractor
Violates duty imposed by contract
Violates statutory duty
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Strict Liability
jHeld when business conducted is ultra-
hazardous or abnormally dangerous
j
Statutes hold employer for all acts of itsemployee
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Remedies to Tort Actions
jFile injunction to prohibit act
jOr imposition of
Special damages to amount General damages to injury
Punitive damages to compensate for behavior
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Premise Liability
jFor failure to provide reasonable security
jWhen an invitee is injured by a criminal act
j
And if act occurred on premisesjApplies to
Duty
Foreseeability
Totality of circumstances Breach of duty
Causation
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Remedies
jEnforcing rights and redressing wrongs
Injunctions to prohibit continuance
Special damages (medical bills) General damages (pain and suffering)
Punitive damages (compensate)
Statutory damages (required by statute)
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Criminal Law
US Legal Aspects
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Crime
jA prohibited act
jOr omission
j Is a threat to public welfarejCriminal or civil wrong is determined by
legislation
Federal criminal law is USC title 18
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Stare Decisis
jThe law of precedence
jOne case will apply to all latter cases with
similar factsjWhen a court has
Made prior decision
Has a set of facts
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Classification of Crime
jFelony (5 classes of felonies exceed 1 year
in prison)
j
Misdemeanor (Class A, B, and C)j Infraction (penalty is 5 days or less)
jMala in se (bad in them selves Murder)
jMala Prohibita (crimes by statutes)
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Crime Terms
jCorpus Delicti (body of the crime)
j Jurisdiction (geographical area)
jVenue (place crime was committed)jDouble Jeopardy (prosecuted for same
crime)
jDue Process (notice and chance to defend)
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Prosecution Must Prove
jA legally forbidden harm
jThe act caused harm
jThe accused is a particular individual
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Corpus Delicti
jConsists of
Mens Rea - intent
Actus Rea - action
The coming together of act and intent
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Criminal Act
jAn affirmative act or omission
jA cause and effect relationship between act
and accused proximate cause of injuryjCan be committed by
The offenders hand
Through an inanimate agency
Through an innocent human agent
Through a non-human agency
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Proximate Cause
jA direct cause
jAccuses set in motion events that caused
harm but for testjAccused place victim in circumstance
jMotive is not essential
jRequires simultaneous act and intent Intent must be clearly abandoned before act
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Transferred Intent
j Intends one crime but accomplishes another
jCriminal intent is present by Transfer
j I.e. Robbery to assault
jOnly need Mens Rea general intent to
commit a crime
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Recklessness vs. Negligence
jRecklessness is a wrongful state of mind
jTo reasonable man test
jNegligence has 4 elements A standard of care
A breach of this standard
Proximate cause
Harm or injury
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Criminal Negligence
jOften called gross or culpable negligence
jCan render an actor liable civilly or
criminally
jMala Prohibita - wrong by statute and
require no proof of intent (speeding)
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Defense
jAlibi physical impossibility
jMistake of fact- break law in good faith
jEntrapment- inducing a person to commit a
crime
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Laws of Arrest
Legal Aspects
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4th Amendment
jProtection from unreasonable search and
seizure of property or persons
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Arrest Elements
j Intention to effect an arrest
jThe active seizure or detention of a person
jCommunication of intentjUnderstanding by the person
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Arrest Authority
jWith Warrant
Probable cause with judiciary
Protects officer from civil liability
A warrant is the arrest of a person
Summons is a direction to appear
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Arrest Authority
jPrivate citizen in aid of LE
jPrivate citizen is same as LE
jPrivate citizen is protected from liabilityeven if LE was acting illegally
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Arrest w/o Warrant
jLE must articulate reasonable cause
jPrivate Citizens can arrest if offence is
In their presence A felony not in their presence
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Use of Force
jReasonable force is the least amount offorce necessary
jReasonable force is allowable in:
Self-defense
Defense of others or the offender
Defense of property or premise
Correction of minor child or incompetent Prevention of escape
Force must stop when resistance stops
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Deadly Force
jOnly when like force is threatened
jWhen deadly force is imminent
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Defense of Property or Premise
jMust articulate criminal trespass
jMust be in reasonable charge of premise
jUse amount of force necessary reasonablejFatal force generally not authorized
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Search and Seizure w/ Warrant
jSearch warrant is an order by a judge
jSearch warrant extend to all reasonable
parts of the premisejExclusionary rule
j Tainted fruit of the poisonous tree
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Search and seizure w/o Warrant
jBased on precedence not 4th amendment
jSearch incidental to arrest
jTo protect officerjAvoid destruction of evidence
jArea of search is limited
jWith consent of owner/accusedj Plain view doctrine
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Confessions and Admissions
jConfession is statement acknowledging
guilt.
jAdmission is a statement in which facts are
admitted to but does admit to crime.
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Miranda v Arizona 1966
jRight to remain silent
jAnything said can be used against them
jRight to a lawyerjLawyer will be appointed
jAdmission to private citizen is admissible
without warningsjFree and voluntary test
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Legal Aspects of Private Security
jConstitution applies to government not
private citizens
j
Private Security powers can equal Private citizen
Authority by deputization
By statute or regulation
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Private Security Arrest
jPowers same as private citizen
jStatutes may grant powers similar to police
jMerchants may have right to arrest anddetain
jLegally detained person may be
interrogated
jPrivate Security Not required to Mirandize
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Private Security Search
jSame as private citizen
j 4th Amendment does not apply
jEvidence discovered is admissiblejLaw not clear, policies and contracts dictate
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Violations Significant to Security
j Larceny
j Embezzlement
j False pretense
j Receiving stolen property
j Robbery
j Burglary
j Forgery
j Uttering (Check floating)
j False imprisonment
j Perjury
j Misprison of a felony
j Trespass of real property
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Key Points of Criminal
Proceduresj Arrestee brought before a magistrate withoutunnecessary delay.
j Preliminary hearing is to determine Probable
Cause.j Indictment from Grand jury.
j Information from prosecuting attorney.
j Defendant can plea.
Not Guilty. Guilty.
Nolo Contende.
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End of Part 1
jTactful interrogative sentences or phases for
exposition of dubious, factitious or
ambiguous points set forth as objectively
real is determined by the evidence set forth
in the 12th edition of the CPP study guide
will not be deliberated.
j In short, serendipity suprimere has beeninvoked.
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Legal Aspects Part II
Caterpillar Corporate Security
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Eavesdropping
jEavesdropping is knowingly and without
lawful authority to listen to private
conversation.
jWiretapping- interception of a
communication circuit.
jBugging is interception of a communication
using an electronic device.
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Not Prohibited by Federal Law
jCommunication Company in course of
business.
jBy party of or consent of party
communicating.
jOrder of FISO Court.
jReadily available communication.
jBy law after judicial review.
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Stored Communication
jUnlawful access or alter communication in
electronic storage.
jPenalties are higher for tampering.
jCordless and Cellular Phones.
Illegal to intercept.
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Key Federal Agencies in
Investigationsj The Department of Homeland Securityhas five major directorates:
1. Border and Transportation
2. Emergency Preparedness
3. Science and Technology
4. Information Analysis5. Infrastructure Protection and Management
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Department Of Justice
j Headed by Attorney General of United
States responsible for over 40
organizations. Key organizations are;
1. FBI
2. U.S. Marshal Service
3. BATF
4. DEA
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Federal Highway Administration
jFHA has regulatory jurisdiction over safety
and performance of commercial motor
carriers interstate commerce.
Highway Safety Act.
Interstate Commerce Act.
Explosive an Dangerous Articles Act.
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Floods and Weather
jU.S. Army Corps of Engineers responsible
for flood control planning.
jNational Oceanic and Atmospheric
Administration is responsible for situation
reports on flooding.
jNational Weather Service is responsible for
severe weather advisories.
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Key State and Local Agenciesj State Policej Department of Motor Vehicles
j Bureau of Vital Statistics
j County farm Agent
j County Assessor
j Board of Elections
j Licensing Authorities
j Board of Educationj Municipal Fire Department
j State parole and probation Board
j Department of State
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Key State and Local Agencies
jMunicipal, County and State Courts
Records concerning civil, criminal, juvenile
equity and probate Divorce records
Citizenship matters
Records of legal change of names
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Key State and Local Agencies
jLocal Police and County Sheriff
Arrest Records
Identification Records
Missing persons
Lost and stolen articles indexes
Accident reports Gun Permits
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Administrative law
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Basic Concepts
jAdministrative agencies affect private rightsby:
Rule-making
Licensing Investigation
Prosecution
Informal action
When under appropriate statue agency rules haveforce of law.
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Enabling Statues
jEnabling statues describe agency structure
and powers. Generally agencies have quasi-
judicial power in that they:
Make rules and regulation
Issue citations
Hold hearings
Assess penalties
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Fair Credit Reporting Act
j Regulates mercantile, insurance and employmentinvestigations
j Consumer reporting agency
j Investigative Consumer Reportsj Need written notice of investigation
j Describe nature and scope investigation
j Internal staff report not a consumer report
j Routine investigation does require notice
j Adverse action occurs written rights presented
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Statutory Civil Rights
jThe Civil Rights Act prohibitsdiscrimination in any adverse to anemployee or employment applicant based
on: race,
creed,
sex
religion
national origin.
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Griggs V Duke Power Company
jDetermine that any test, standard, job
requirement or screening device and or
policy must be shown necessary for the
successful accomplishment of the job.
jThese requirements must be stated in
specific terms.
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Gregory v Litton
jRejection of prior arrest is disallowed.
No questions may be asked of previous arrest
A question may be asked to prior convictions
Applicant cannot be rejected solely on prior
convictions. The whole man rule must be
applied.
E l E l O i
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Equal Employment Opportunity
CommissionjEEOC acts on complaints or can initiatecharges on the civil rights act covers.
jAge Discrimination in Employment act of
1967 prohibits against discrimination for a
job for those over 40 years of age.
jThe Equal pay Act of 1963 requires
employees to receive equal pay for equalwork regardless of sex.
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Labor Relations Laws
j National Labor Relations Act (Wagner Act) rightto organize.
j Unfair Labor practices.
Interfering with employee rights Interfering with organization
Discouraging membership
Discharging NLRA complainers
Refusing to bargain
Basic test is unfair labor practiceprohibited by NLRA
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NLRA Ground Rules
jDistribution of literature at parking lots andlunch is lawful
jManagement may not attend Union
meetingsjUndercover operations against union
unlawful
j
Cant list union membership in reportsjSecurity actions are employer actions
jClear reason for security operations
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Just Cause Discharge
j Incidents are serous
j Infractions serious misconduct
j
Disciplined person was responsiblej Incident was known to be serious
jViolation known to be misconduct
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Arbitration
jArbitration is governed by the labor
contract. Includes
Decision enforceable
Compelling evidence by subpoena
Facts found by arbitrator nor review by courts
Arbitrator admit what both parties offer for
evidence.
S it i NLRA Di i li
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Security in NLRA Discipline
Casesj Security personnel must act reasonably
j Statements must be voluntary
j Evidence taken must meet reasonable expectation
of privacy
j Surveillance must meet reasonable expectation of
privacy
j
Polygraph not unfair labor practicej Weingarten rule, union representative present
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Appropriate Bargaining Unit
jExcludes supervisors and managers
jExcludes craft or professional workers
j
Consist of two workersjCant mix guards and non-guards
jPast practices are regular and recurring
ways of doing things not in the unioncontract.
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Past Prior Benefit Clause
jUnion contract insures that any condition of
employment existing at the time of the
contract cannot be changed by management
to condition less beneficial to workers.
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Labor Management Relations Act
jTaft-Hartley Act forbids unions from:
Restraining or coercing employees
Discriminate against employees
Refusing to bargain
Secondary boycotting
Charging excessive fees
Featherbedding
L b M t R ti
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Labor Management Reporting
and Disclosure ActjLandrum-Griffin Act safeguards and
restriction on union officers and
management conduct regarding their
members.
jForbids Hot Cargo
jForbids making deals at expense of
members or business
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Strikes
jEconomic
most frequent
jUnfair Labor Practice
Permit little to prepare
Employees must be allowed to return to work
Strike to for discontinuance of alleged violation
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Security during a Strike
jLessen Violence
jAdequately deal with violence
j
Prevent death or serious injuryjMaintain Order
jPreserve integrity of worksite
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Security Strike Operations Plan
jThe Security strike operations plane should
be a comprehensive statement of all
policies, procedures, and activities for a
strike Plan is made available to supervisor and higher
Shot have sensitive info
Have fewest entry points in facility Policy for arrest during a strike
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Security and Unlawful Labor
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Security and Unlawful Labor
PracticesjSecurity activities that could be basis of
unlawful labor practices
Handling access control.
Handling distribution of union literature on
property.
Investigations of employee activities.
Occupational Safety and Health
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Occupational Safety and Health
Act (OSHA)j Williams-Steiger Act 1970.
j Department of labor enforces it.
j Covers all industry except mining.
j Provides of safe and healthy work conditions.
j Cover businesses with more than 10 employees.
j Require record on all work related deaths injuries
and illness.
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Priorities for Inspection
jCatastrophes resulting in death or 3 or more
hospitalized
jEmployee Complaints
jHigh injury or health hazards
jRoutine random Inspections
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OSHA Inspections
jMarshall v Barlow requires OSHA to have a
warrant for inspection.
jProbable cause not required if routine
jCan request a shutdown for imminent
danger.
jCitation issued to employer not employee.
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OSHA Citations
j Imminent danger
jSerious Violation
j
Non serious ViolationjDe Minisi Violation
jWillful Violation
j
Repeated Violation
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Security and the Disabled
j Americans with Disabilities Act (ADA)
j Cover employers with 15 or more employees.
j Cant discriminate against qualified disable
candidate.j Must provide reasonable accommodations.
j Not covered by the Act
Transvestites Current illegal drug user
Homosexuals
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Federal Sentencing Guidelines
j 1987 Individual sentencing guidelines forcertain crimes
j 1991 organization guidelines for
Antitrust violations Money laundering
Fraud
ERISA
Securities violations
Environmental law
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Deterrence and Fines
jFines are to make restitution to injured
parties
jFines not tax deductible
jBaseline fines is the greater of:
Pre-tax gain
Loss of any injured party
From $5,000 to $72,000 for each fine.
Determining Culpability
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Determining Culpability
jEvery business starts with a score of 5 anddepending on aggravating or mitigating
move from 0 to 10
jAggravating factors that penalize a firmsare management disregards, condones or
covers up criminal conduct.
jMitigating factors encourage firms to deter
or report criminal conduct.
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Effective Compliance Program
1. Establish compliance standards
2. Senior management oversees compliance
3. Communication of standards
4. Auditing of compliance system
5. Discretionary authority
6. Disciplinary procedures7. Prevention program
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