contesting msha citations: successful strategies to reduce liability 6 th annual tennessee mining...

21
Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R. Korn (803) 255-0000 [email protected] www.workplacesafetyandhealthlaw.com LinkedIn Group: MSHA Regulatory and Enforcement Updates Atlanta · Boston · Charlotte · Chicago · Cleveland · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville Memphis · New England · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix · Portland · San Diego · San Francisco · Tampa · Washington, DC www.laborlawyers.com Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work ®

Upload: daniella-clark

Post on 18-Dec-2015

217 views

Category:

Documents


2 download

TRANSCRIPT

Page 1: Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R

Contesting MSHA Citations:Successful Strategies to Reduce Liability

6th Annual Tennessee Mining Conference

November 17, 2014

Presented by:

Matthew R. Korn (803) 255-0000

[email protected]

www.workplacesafetyandhealthlaw.com

LinkedIn Group: MSHA Regulatory and Enforcement Updates

Atlanta · Boston · Charlotte · Chicago · Cleveland · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville

Memphis · New England · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix · Portland · San Diego · San Francisco · Tampa · Washington, DC

www.laborlawyers.com

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

Page 2: Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R

Overview

Uh oh…we got a citation. Now what?

How informal can I be?

Time to put on the tie

Who’s that in the front of the room with the long black robe?

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

www.laborlawyers.com ● Phone (803) 255-0000

Page 3: Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R

Managing the inspection

• Be prepared.

• Be active.

• Be respectfully curious.

• Be professional.

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

www.laborlawyers.com ● Phone (803) 255-0000

Page 4: Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R

Closing it out

• What to say…

• What not to say…

• How to know the difference

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

www.laborlawyers.com ● Phone (803) 255-0000

Page 5: Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R

Informal conference

To request or not to request . . .

That is the question.

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

www.laborlawyers.com ● Phone (803) 255-0000

Page 6: Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R

Should I show my hand?

Providing the “right” information

Will they buy it?

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

www.laborlawyers.com ● Phone (803) 255-0000

Page 7: Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R

Thinking through the contest

MSHA Needs to VACATE this Citation

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

www.laborlawyers.com ● Phone (803) 255-0000

Page 8: Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R

Ok, maybe not vacate…but

What’s your goal?

Money? S&S? Unwarrantable?

The Inspector “got it wrong”

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

www.laborlawyers.com ● Phone (803) 255-0000

Page 9: Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R

That’s not significant and substantial

What will MSHA find persuasive?

Facts? Cases? Statistics?

Does our training plan help us?

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

www.laborlawyers.com ● Phone (803) 255-0000

Page 10: Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R

Who knew I could be “moderately” negligent?

What’s the difference in levels of negligence?

How do I get MSHA to reduce the negligence?

Does it even matter?

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

www.laborlawyers.com ● Phone (803) 255-0000

Page 11: Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R

MSHA denied our request – what now?

Checking the box

Preparing in advance

Seek advice from others

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

www.laborlawyers.com ● Phone (803) 255-0000

Page 12: Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R

You show me yours…

FOIA [email protected]

Discovery Requests

Do I have to show them mine?

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

www.laborlawyers.com ● Phone (803) 255-0000

Page 13: Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R

What’s a “Notice of Contest”?

Must submit within 30 days!

But, is it worth it?

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

www.laborlawyers.com ● Phone (803) 255-0000

Page 14: Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R

You called, and I Answered.

Responding to all allegations

Affirmative defenses

Is all of 30 CFR Void for Vagueness?

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

www.laborlawyers.com ● Phone (803) 255-0000

Page 15: Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R

It’s like a game of chess…ok, checkers.

Settlement Talks – Early and Often

What’s the basis for your argument, counselor?

Be professional…did I say that already?

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

www.laborlawyers.com ● Phone (803) 255-0000

Page 16: Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R

Global settlement conference…not just for Israel-Palestine

Did you get more than one citation?

All it takes is a handshake

Efficiency drives productivity

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

www.laborlawyers.com ● Phone (803) 255-0000

Page 17: Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R

You can’t handle the truth

Deposing the Inspector

Defending your Witness

Can I handle it?

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

www.laborlawyers.com ● Phone (803) 255-0000

Page 18: Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R

Stating your case

Demystifying the Hearing

Presenting the Evidence

Your Honor

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

www.laborlawyers.com ● Phone (803) 255-0000

Page 19: Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R

After the dust settles

VICTORY!

I think the Judge missed something…

26.2 miles

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

www.laborlawyers.com ● Phone (803) 255-0000

Page 20: Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R

Knowing when to ask for help

So, why do we pay for lawyers?

Various levels of assistance

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

www.laborlawyers.com ● Phone (803) 255-0000

Page 21: Contesting MSHA Citations: Successful Strategies to Reduce Liability 6 th Annual Tennessee Mining Conference November 17, 2014 Presented by: Matthew R

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work® www.laborlawyers.com ● Phone (803) 255-0000

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

Any Questions?

Thank You

www.laborlawyers.com

Presented by:

Matthew R. Korn

(803) 255-0000

[email protected]

www.workplacesafetyandhealthlaw.com

LinkedIn Group: MSHA Regulatory and Enforcement Updates

Atlanta · Boston · Charlotte · Chicago · Cleveland · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville

Memphis · New England · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix · Portland · San Diego · San Francisco · Tampa · Washington, DC

This presentation should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult counsel concerning your own situation and any specific

legal questions you may have.