What will be covered EHS Today s America s Safest Companies Conference September Chicago, IL

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1 Understanding and Avoiding Civil and Criminal Liability September 12, Chicago, Illinois Panel: Ken Flechler, Pike Electric Howard A. Mavity, Fisher & Phillips Betsy Weintraub, Fisher & Phillips Moderator - Todd Logsdon, Fisher & Phillips 1 What will be covered Focus on Potential Civil and Criminal Liability to Employer, Employer Representatives, including EHS Professionals. Not about Administrative Agency citations, penalties, or fines. But, Administrative Agency actions may lead to civil and/or criminal liability Phone (404)

2 Potential Agency Involvement OSHA or State OSH Programs MSHA EPA Bureau of Alcohol, Tobacco, Firearm & Explosives (ATF) Chemical Safety Board (CSB) DOT Agencies U.S. Justice Department (DOJ) State Attorney General State Attorney s and DA s State/Local Fire Marshals 3 Potential Civil Liability Workers Comp incl safety penalties Personal Injury claims by non-employees Personal Injury claims by general public Property Damage Third Party claims & back door exposure Subrogation Insurance coverage disputes Contract disputes Indemnification Phone (404)

3 Potential Criminal Liability OSHA criminal referral fatality based on willful violation False Statements to agency/law enforcement Abuse of investigators Conspiracy Obstruction of Justice Involuntary Manslaughter/Reckless Homocide DOT EPA Phone (404) PRE-INCIDENT PREPARATION 1. Crisis Management Action Procedure with an Incident Command System. Determine what to do if offices are lost or communications disrupted. Simple guidance to all management levels Designated coordinators corporately and at job sites Develop site specific plans and procedures for mobile or remote employees, vehicles, traveling employees, etc. Contact List: Management, Counsel, HR, Insurance, Customers, Contractors, Regulatory, Experts, etc. 6 3

4 PRE-INCIDENT PREPARATION 2. Regulatory Response Procedure not just for handling OSHA consider criminal exposure, DOT, building and fire inspectors, etc. supervisor training Phone (404) RESPONSE TO THE EMERGENCY Notification Of Corporate Office And Appropriate Legal Counsel Who First? Provide initial details of accident/incident and status report Request needed resources (2 deep) Contact counsel and obtain directions for asserting legal privilege, response to investigations, and coordination with other counsel and insurers Consider exposure to claims by customers, the public, or other employers 8 4

5 RESPONSE TO THE EMERGENCY Notification of Insurance Carriers Provide initial details of accident/incident Ascertain insurance carrier s response Ask for counsel and/or experts Preparation for on-site investigation by insurance carrier personnel and experts Coordinate workers compensation, GL, and other counsel Cooperate with but manage non-attorney investigators 9 RESPONSE TO THE EMERGENCY Handling Requests From Other Third Parties Equipment manufacturers Contractors, Property Owners Vendors Attorneys representing injured or deceased employees 10 5

6 RESPONSE TO THE EMERGENCY Institution of Accident/Incident Investigation Internal investigation Initial Investigation First report of injury filing Follow company procedures Consider legal implications Avoid snap conclusions 11 RESPONSE TO THE EMERGENCY Institution of Accident/Incident Investigation (cont d) External investigation Consider role of counsel Identification of witnesses Identification of evidence Avoid spoliation, obstruction of evidence Special considerations when a site is declared a crime scene 12 6

7 RESPONSE TO THE EMERGENCY Document Control Collection of documents Creation of documents Distribution of documents Privilege and other protections Document Holds Electronic Communications Criminal Considerations Coordination and Issues with other employers 13 is dedicated exclusively to representing employers in the practice of employment, labor, benefits, OSHA, and immigration law and related litigation. THESE MATERIALS AND THE INFORMATION PROVIDED DURING THE PROGRAM SHOULD NOT BE CONSTRUED AS LEGAL ADVICE OR AS CRITICAL OF THE CURRENT OR PAST ADMINISTRATIONS Resurgens Plaza 945 East Paces Ferry Road Atlanta, GA Phone (404)

8 America s Safest Companies September 11-12, 2012 Howard A. Mavity 1075 Peachtree Street, NE Suite 3500 Atlanta, GA (404) hmavity@laborlawyers.co m Todd Logsdon 220 West Main Street Suite 2000 Louisville, KY (502) tlogsdon@laborlawyers.co m Betsy Weintraub Suite 312 Renaissance Center 1715 Aaron Brenner Dr Memphis, TN (901) bweintraub@laborlawyers.co m WHEN THE CRAP HITS THE FAN! Yep. If you are in this business long enough, no matter how careful you are, Mr. Murphy and his bad luck eventually will come visit you, and someone gets hurt or even worse, killed. No matter how tough you are or how experienced, nothing prepares you for the pain of loosing a co-worker, or the complete chaos and brain lock when it happens. Oh yeah... when it does happen, you can pretty much assume that it will be at the worst possible time; probably late Friday, when everyone is tired, ready for the weekend, and when key people are elsewhere. Friday 3:00 p.m. It happened fast. Not sure what went wrong or what caused it. Guys were pumping out concrete on the 10 th floor of the parking garage when formwork seemed to just collapse along with a portion of the next floor, re-shore and everything. Chunk of formwork or floor also fell to the ground and hit something; maybe welding gas tanks, but whatever it was, it made a big boom. Don t think anyone was hurt on the ground; thank goodness, but there were probably three to five guys up top where the concrete was being pumped. Were there any guys checking the shoring and re-shoring? Maybe two? Where s the forming foreman? Oh crap! Was he up there? Weren t some electricians and plumbers working on the 7 th and 8 th floor? Surely they weren t on the 9 th floor, although the forming guys have been complaining about the craftspeople knocking shoring and re-shoring out of place, and coordination hasn t been great. Atlanta Charlotte Chicago Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Louisville New Jersey New Orleans Orlando Philadelphia Phoenix Portland, ME Portland, OR San Diego San Francisco Tampa

9 1. Who do you call first? 2. What are your plans for a serious injury or death? 3. How do you account for your people and for other contractor personnel? Friday 3:15 p.m. WHAT DO I NEED TO DO FIRST? On the WCRAP Channel 2-24-hour news website: This just in there has been an explosion and a building has collapsed at the Bigco Development site at 60 th and 9 th streets. No word on fatalities. Emergency response crews are onsite. Friday 3:18 p.m. A Fire Department truck with three EMT s is first to the scene. Solid guys. Want a diagram or description of the garage and guidance to the top floors. Full rescue squad next. They want MSDS s on chemicals onsite and want to know about the explosion and any chemical hazards. Next is a question about the availability of a crane and heavy equipment. May have to start moving material. Everyone wants to know what happened and why the collapse occurred. You need the structural engineer. Everyone wants spec s, drawings, shop drawings, etc., and it looks like a chunk of something collapsed the roof of the job trailer telephone landlines are out and only cell phones work. 1. How to obtain equipment demanded? 2. Who can help you? 3. How do you contact the owner, structural engineer, other contractors onsite, the union? 4. Can you provide the equipment to help emergency responders? 5. What is your liability? Friday 4:12 p.m. A helicopter took two seriously injured employees to the trauma center at the Regional Medical Center. Both employees were on top where the pumping was occurring. Two guys dead, including the forming foreman, from the 9 th floor. Not sure what they were doing when the collapse occurred. Missing some craftsmen in the rubble; looks like one dead. The other two are scared and thankful to be alive. Apparently the Pumper Truck operator has already told a reporter that it wasn t his fault and that he heard that the forming was bad. There are news trucks with those big satellite antennas all along the public road abutting the job site. A reporter calls you on your cell and asks what happened? 1. How do you address family members? Coworkers? 2. Who responds to the press? Atlanta Charlotte Chicago Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Louisville New Jersey New Orleans Orlando Philadelphia Phoenix Portland, ME Portland, OR San Diego San Francisco Tampa 2 Copyright 2012 All Rights Reserved

10 3. Do you have a press plan in place? 4. Do you have an overall crisis plan? Friday 4:30 p.m. OSHA comes onsite and politely asks to talk with each of the contractors onsite. The two OSHA CSHO s also talk to the fire captain overseeing the emergency response, and then joins the owner and the police captain. The police captain tells you that he is sorry, but until the facts are sorted out, he will have to declare the worksite a crime scene and ask you to oversee getting everybody off of the site except the owner s representative and employees necessary to assist the fire department, the building inspectors, police, and a structural engineer that the police called in. OSHA obtains permission to work with the structural engineer (and later retains him as an expert). 1. What are your legal rights? 2. What about evidence, preservation? 3. What about changes to the accident scene? Friday 6:00 p.m. Everyone wants to know what happened. When will the job resume? Employees want to know if they re needed this weekend and on Monday. Someone from the home office calls about penalty clauses. Then the ATF Alcohol, Tobacco and Firearms agents arrive; basically take over, and start asking about the explosion. You also get a call from the Chemical Safety Board (CSB) for the same reason. The building inspector and the engineer that the police (and OSHA) retained asks for the structural drawings, shop drawings, change orders, and a host of safety plans. A county building inspector also shows up. Then... you get a call from Bill Jones, a former long-term employee whose son was one of the employees killed. He is stoic and almost scarily calm, but he wants to see the place where his son was killed. 1. Who handles each party? 2. How? Monday 9:30 a.m. OSHA has requested administrative interviews with you and several other supervisors. They also want to continue interviewing hourly employees and want to know if you can call employees in to meet them. You tell OSHA that several of you already gave recorded statements to the police, ATF and a guy from the CSB. The Police Department has subpoenaed a host of records and seems to be focusing on the discussions and dealings between you, the pumper company, and the structural engineer. They also seem interested in exactly how far behind the job was, and what financial consequences might occur if things didn t pick up. OSHA confiscates two fall protection sets, several clipboards, and some tools. 1. See any conflicts here? Warning signs? 2. How do you handle routine OSHA interviews of employees and supervisors? Atlanta Charlotte Chicago Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Louisville New Jersey New Orleans Orlando Philadelphia Phoenix Portland, ME Portland, OR San Diego San Francisco Tampa 3 Copyright 2012 All Rights Reserved

11 3. What about the administrative interviews? 4. How do you handle OSHA CSB, and Police evidence demands? Monday 1:00 p.m. A Texas plaintiff lawyer has filed a lawsuit for an employee who tripped and hurt himself running from the building and has asked the District Court for an emergency hearing to order you and the other parties to preserve evidence, and to allow the lawyer s expert onsite. He has also sent you a letter asking for quite a few documents on a voluntary basis. MONDAY EDITION OF THE DAILY TIMES SQUELER: Police, OSHA, and building inspectors continue to sort through the rubble at 60 th and 9 th streets where three employees were killed Friday. One employee claims that he told the forming contractor that they weren t following the plans and someone was going to get killed. OSHA s website states that the forming contractor was cited in 2009 for seven items by OSHA and fined $92,000, and that the General Contractor over the job received citations in 2007, 2008, and 2009 (the newspaper doesn t mention that the citations were at other jobs, involved two serious and one other item, and total penalties of $7,200). Local Plaintiff firm, Dewey Cheatem and Howe has reported that Hispanic employees were under trained and that they now represent at least one family. They also decry the invasion of unscrupulous Texas plaintiff lawyers when there are so many equally hungry local plaintiff lawyers available. Monday 2:00 p.m. Employees are calling in asking when they can return to work and will they be paid while out. OSHA wants to talk to employees. You cannot get onsite to the Project Trailer. Two employees want to know if they can talk to you in private, and feel like some of their words were twisted in their interviews, signed statements, but don t have them. 1. What are your policies about leave, vacation, travel, FMLA? 2. Are you trained in basic management of OSHA and other inspections? 3. Can you sit in interviews, ask for employee statements, etc.? Monday 3:00 p.m. Your Workers Comp insurer wants to send an investigator to interview and tape record employees. Your General Liability Carrier has declined to hire counsel yet, but assures you that you may want to do so on your own. Your V.P. of Sales frantically calls about that stimulus job on which you re bidding, and wants to know what he can say. The structural engineer wants to know why his plans were deviated from. OSHA now asks for your written procedures and Job Safety Analysis for forming, and for any self-audits. Apparently someone mentioned that your insurer did a self audit of all jobs six months ago, your Regional Safety Manager also reminds you that this site was behind in documenting training, but most of the guys were really experienced. You also need to complete an Accident/incident report. 1. What is the role of counsel? Atlanta Charlotte Chicago Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Louisville New Jersey New Orleans Orlando Philadelphia Phoenix Portland, ME Portland, OR San Diego San Francisco Tampa 4 Copyright 2012 All Rights Reserved

12 2. How do you handle your internal investigation? Monday 3:30 p.m. Pausing from discussions with OSHA, you go through your 62 voic s and find the following: Message 12 2:00 Message 26 2:30 Message 60 3:00 Message 61 3:12 Message 62 3:8 This is Doctor Sunshine s office, don t forget your 8:00 a.m. Colonoscopy tomorrow. Remember to drink all of your laxative! This is your wife remember me? Don t forget Tommy s school conference at 3:00 today. The family of one of the employees killed, wants you to come to the visitation. The attorney for the Ready Mix Company wants to come onsite. Hey this is Mike in sales. I know this is a terrible time, but we have bids to two owners who want to know what happened. Atlanta Charlotte Chicago Columbia Dallas Denver Fort Lauderdale Houston Irvine Kansas City Las Vegas Louisville New Jersey New Orleans Orlando Philadelphia Phoenix Portland, ME Portland, OR San Diego San Francisco Tampa 5 Copyright 2012 All Rights Reserved