Avoiding the Legal Pitfalls of Safety Audits and Investigations
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1 Avoiding the Legal Pitfalls of Safety Audits and Investigations R.J. (Randy) Stevenson Baird Holm LLP (402) Copyright 2015, Baird Holm LLP
2 Safety Compliance Audits Benefits Help assure legal compliance Effective tool to reduce injuries and illnesses Pitfalls If obtained by OSHA, may form basis for a citation - and willful classification If obtained by a plaintiff in litigation, may establish the employer s tort liability
3 OSHA s Position on Self-Audits OSHA s Policy July 28, 2000 Final Policy on Self-Audits Auditing is a worthwhile activity OSHA will not routinely request self-audits OSHA will not use such reports as a means of identifying hazards upon which to focus inspection activity
4 OSHA s Position on Self-Audits (cont.) If audit identifies a hazard and the employer has corrected it, no citation will issue (even if existed within last six months) If audit identifies hazard and employer has not completely corrected it but has taken interim precautions, it is evidence of good faith (i.e., a non-willful citation will be issued) If audit identifies a hazard and the employer has not corrected it, no good faith (i.e., a willful citation will likely be issued)
5 OSHA s Position on Self-Audits (cont.) OSHA s Practice OSHA insists that it is not bound by its own policy OSHA has frequently sought audit results during inspections OSHA has issued subpoenas when results are not voluntarily produced
6 Defenses and Privileges OSHA s own 7/28/2000 Final Policy Creates a reasonable expectation that results won t be sought to identify hazards to inspect Numerous courts have recognized a variety of common law privileges that potentially could attach to voluntary workplace safety self-audits to protect them from disclosure
7 Attorney-Client Privilege Most well-developed protection Designed to protect from disclosure confidential communications between attorney and client where attorney is acting in a legal capacity and legal advice is being sought or provided May be waived if the legal advice is disclosed to third parties
8 Attorney-Client Privilege (cont.) Some courts have considered audits to be in the nature of business management or strategic advice rather than legal advice, regardless of the presence of lawyers If audit results are disclosed to third parties so remedial actions can occur, such disclosure may waive the privilege
9 Work Product Doctrine Shields from disclosure materials prepared by an attorney in anticipation of litigation, and where an opposing litigant has no substantial need for the audit report or will not experience undue hardship by its nondisclosure Need likelihood of litigation
10 Work Product Doctrine (cont.) Routine audits are prepared in the ordinary course of business and not for purposes of anticipated litigation and are not protected by this privilege Disclosure of the audit to a third party will also waive the privilege
11 Self-Critical Evaluation Doctrine Generally requires that the: (1) information must result from a selfcritical analysis undertaken by the party seeking protection; (2) public must have a strong interest in preserving the free flow of the type of information sought; and (3) information must be of the type whose flow would be curtailed if discovery was allowed
12 Solis v. Grinnell Mutual Reins. Federal District Court (N.D. Ill. 2011) OSHA subpoena required insurer to disclose loss control audits Held: OSHA s self-audit policy reflects an internal policy and not a rule that creates legal rights in third parties (like Grinnell)
13 Solis v. Grinnell Mutual Reins. (cont.) Policy is directed at self-audits conducted by employers to assess compliance Grinnell Mutual s audit was not a selfaudit conducted by the employer to assess its OSHA compliance
14 Solis v. Grede Wisconsin Subs. Federal District Court (W.D. Wis. 2013) Employer refused OSHA s request during an inspection for self-audits OSHA issued subpoena, employer resisted
15 Solis v. Grede Wisconsin Subs. (cont.) Held: OSHA deliberately raised employers reasonable privacy expectations to induce businesses to perform self-audits OSHA can ask only for those portions of self-audits for which it has independent evidence (i.e., probable cause) of violation or potential violation
16 Solis v. Milk Specialties Co. Federal District Court (E.D. Wis. 2012) OSHA subpoenaed documents prepared post-litigation by VP of EH&S for in-house counsel re: fire safety compliance efforts Company refused to comply based on attorney-client privilege/work product rule Employer has burden to show the work was performed to produce legal advice
17 Solis v. Milk Specialties Co. (cont.) Meeting burden is difficult in the context of in-house counsel because counsel is often involved in business matters as well as legal matters Held: Privilege inapplicable because the purpose of the communications was to provide business advice and not legal advice plus no anticipated litigation
18 Reich v. Hercules, Inc. Federal District Court (D. N.J. 1994) Self-critical analysis privilege is rooted in hospitals reviews of deaths - requiring disclosure would stifle free flow of information contrary to public s interest Privilege recognized in private litigation, but rejected when government seeks document Public s interest is disclosure to government
19 Secy. of Labor v. Delek Refining OSH Review Commission (2011) Considered application of attorney-client privilege to a document prepared by a third party consultant in connection with a self-audit Held: The privilege may apply if a threepart test is met
20 Secy. of Labor v. Delek Refining (cont.) 1. The client must have provided information to the third party, not viceversa (so no privilege where attorney consults the third party to obtain information the client did not have... or employs the third party to gather data through observations of the physical conditions at a client s site)
21 Secy. of Labor v. Delek Refining (cont.) 2. The client must have sought legal advice as opposed to some other kind of advice or information (such as technical or business advice) 3. The attorney must have needed the services of the third party to translate technical information
22 Practical Advice Contact external legal counsel ASAP in the event of a serious accident Legal counsel should direct all serious accident investigations/high-risk audits, and retain third-party consultants Legal counsel s communications should note that the audits are undertaken for the purpose of rendering legal advice and/or are in anticipation of litigation
23 Practical Advice (cont.) All notes and other documentation from the audit should be submitted directly to counsel, not to unnecessary individuals, and never to third parties All notes and other documentation from the audit should be labelled Attorney- Client Privilege/Work Product
24 Practical Advice (cont.) Check existing audit reports Have noted noncompliant items been abated? Have the auditor acknowledge (in writing) any incorrectly noted noncompliant items To be safe, assume that OSHA will eventually review all of your audit reports
25 Questions? Copyright 2015, Baird Holm LLP
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