labor and employment law series: when osha (or the nysdol) comes knocking september 13, 2012...

Labor and Employment Law Series: When OSHA (or the NYSDOL) Comes

Knocking

September 13, 2012Presentation By:Thomas A. DeSimon, Esq.

Co-Chair: Government Compliance & [email protected]

99 Garnsey RoadPittsford, New York 14534

(585) 419-8609

www.harrisbeach.com

Thomas A. DeSimon, Esq.(585) 419-8609© Harris Beach PLLC, 2012

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Occupational Safety and Health Act

History:

Occupational Safety and Health Administration (OSHA)Created in 1970Until 1970 no uniform/comprehensive provisions existed for protection against workplace safety and health hazardsCharged with enforcement of Occupational Safety and Health ActAct applies to all employers and employees in all 50 states, D.C. and P.R. and territories under federal government jurisdictionCoverage provided either directly by OSHA or through OSHA – approved state programs


Occupational Safety and Health Act

Covers industries such as: Manufacturing Construction Longshoring Agriculture Law Medicine Organized labor Private education Private Employers/Employees: covered by Occupational Safety and

Health Act OSHA: investigates/enforces violations of worker health and safety

standards

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Public Employee Safety and Health Act

Public Employers/Employees: covered by the Public Employee Safety and Health (PESH) Act

PESH Act: created the Public Employee Safety and Health Bureau

PESH Bureau: is a Bureau of the Division of Safety and Health (DOSH) which is one of three divisions of the Worker Protection Bureau of the New York State Department of LaborOversees workplace protection of public employees at the state and local levelEnforces all safety and health standards promulgated under the Occupational Safety and Health Act

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PESH BureauInspects public employer work sitesProvides workplace hazard consultation servicesPerforms OSHA investigation/enforcement functions:

Responds to deaths in line of duty Responds to accidents where two or more employees hospitalized (Both must be reported by employer within eight hours of employer’s knowledge) Responds to pubic employee/representative complaints

Public employees include:State/County/Town/Village government employeesPublic Authority (e.g. Transit Authority/Power Authority/Water Authority) employeesSchool District employeesPaid/volunteer Fire District employees

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OSHANo formal consultation servicesInvestigation/enforcement functionResponds to deaths in line of dutyResponds to accidents where three or more employees hospitalizedResponds to complaints from private employees/representatives

Also:Conducts inspections pursuant to National Emphasis Program – periodic, unannounced inspections of specific hazards in an industry for a three year period, designed to reduce occupational illnesses and injuries

Examples:Exposures in nursing home and residential care facilitiesAmputations in manufacturing facilitiesChemical and health hazard exposures in the primary metal industries (e.g. foundries)Dust exposures in the workplace

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*Inspections, whether by OSHA or NYSDOL are not limited to the incident or complaint for which investigators/compliance officers appear at your facility

Plain View: “They cite what they see” Limited only by the consent provided by employer If emergency or “imminent danger”, they need no consent or warrant

to conduct inspection If entry refused by employer, OSHA can obtain an inspection warrant

(easily obtainable and not easily challenged) An employer who refuses entry but does not have a valid defense to

an inspection warrant can be subject to an order of civil contempt by a federal court judge

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OSHA Inspections: “The Third Big Lie”CAREFUL!! Anything said or done can be used in support of a violation and the assessment of a civil penalty

Opening Conference – employer informed of why OSHA present and general scope of investigation

“Walkaround” and Document ReviewOSHA 300 (injury) logsHealth and Safety planEmployee representative (i.e. union rep.) can attend/participate

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Employer should:Designate employer representativeLimit management access to designated rep/repsAccompany compliance officer to all locationsLimit access (if possible) to specific area of inquiry (remember “plain view” violations can be cited)Take photos/notes

Employee interviewsNo right of employer/company counsel to be present - encourage participation but individual employee’s choiceDiscrimination/Retribution Employee cannot be discharged or disciplined for filing complaint or participating in investigation

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Management Interviews: Under no circumstances should management be interviewed without legal counsel present – many reasons:Statements/Acts of management can bind the companyPotential criminal sanctions – prosecuted by Department of JusticeLying/misrepresentation to an investigating federal officer (18 U.S.C. §1001)Obstruction of Justice (18 U.S.C. §1505)Willful OSHA violation of a safety standard resulting in death

(29 U.S.C. §666)

Better to be safe than sorry! In all “8 hour” reportable cases (death, multiple hospitalizations) legal counsel should be retained and on the scene ASAP

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New York State

Closing Conference Held at end of investigationGenerally not the same day in serious cases; normally same day in routine inspectionsInvolves general discussion of findings/preliminary assessment of potential violations; need and timing of violation abatements

OSHA has six months from Opening Conference to issue citations

NYSDOL will normally issue Notices of Violation and Orders to Comply at the Closing Conference

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Post-Inspection Steps to be taken:Employee interviews – can’t be forced; can’t be disciplined for refusalUpjohn warnings given to employees prior to interviewsManagement interviewsHeath and Safety plan review/update

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New York State

OSHA Citations include:The acts that are alleged to be violations of OSHA regulationsThe cited regulation/regulations claimed to be violatedThe date by which any claimed violation must be abatedThe proposed civil penalty to be assessed for such claimed violationPosting requirementsNote: a single act can result in a number of violations, with individual penalty for each

NYSDOL Notices of Violation and Orders to Comply include:Acts that are alleged to be violationsAbatement date

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Classifications of ViolationsSerious – a violation where there is a substantial probability that death/serious physical injury could result and the employer knew, or should have known, of the hazard. Punishable by a penalty of up to $7,000/violationWillful – a violation that an employer knowingly commits or commits with plain indifference to the law. Punishable by penalty between $5,000-$70,000/violationWillful Causing Death – imprisonment for up to six months; penalty of up to $250,000/violation (individual) or $500,000/violation (corporation)Repeat – a serious violation committed by an employer previously cited for a substantially similar condition (need not be at the same site). Punishable by penalty of up to $70,000

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Other than Serious – a violation with a direct relationship to job safety and heath, but would not cause death or serious physical harmPunishable by penalty of up to $7,000/violation; normally, no penalty assessed

Failure to abate – punishable by civil penalty of up to $7,000/day for each day violation continues beyond abatement date

DeMinimus – no direct/immediate relationship to safety/heath; not included in citation

NYSDOL/PESH – imposes penalties for failure to abate violations:Serious violations: $200/dayNon-Serious violations: $50/day

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Employer options upon issuanceAccept violations and pay penalties (DUMB!)Negotiate at Informal ConferenceLitigate (OSHA) or appeal (NYSDOL)

Informal Conference – OSHAMust be conducted within 15 working days of citation issuancePresent evidence re: inapplicability of OSHA standard or factual defenseNegotiate penalty amount through citation withdrawal, item grouping or good faith adjustmentNegotiate abatement date

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*If no agreement, Notice of Contest must be filed within 15 working days of citation issuance or rights forfeited

If Notice of Contest filed, case referred to Occupational Safety and Health Review Commission in D.C. for trial; case prosecuted by DOL’s Solicitor’s Office (NYC)

Trial before Administrative Law Judge Appeal of ALJ Decision to Review Commission Appeal of Review Commission decision to U.S. Court of Appeals

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NYSDOL: Must request Informal Conference within 20 working days of receipt of Notice of Violation/Order to ComplyMust file Petition with Industrial Board of Appeals (IBA) within 60 days of receipt of Notice of Violation/Order to ComplyAppeal of IBA decision to NYS Supreme Court by Article 78

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Ounce of Prevention/Pound of Cure“Living/Breathing” health and safety planPromote atmosphere of safety from top downProgressive discipline – includes managementSelf/independent safety auditsForm safety committee/encourage employee participationHazard hotlinesDocument/Document/Document! “If it ain’t in writing, it didn’t happen”

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labor and employment law series: when osha (or the nysdol) comes knocking september 13, 2012...

Documents

workplace safety

health standards

safety standards

health actosha

health hazardscharged

health acthistory

health actact

health dosh