IT COULDN T HAPPEN HERE: The Business and Legal Aspects of Handling Accident and OSHA Inspections

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1 IT COULDN T HAPPEN HERE: The Business and Legal Aspects of Handling Accident and OSHA Inspections Moderator: Tracy L. Moon, Jr. Fisher & Phillips LLP tmoon@laborlawyers.com Direct: (404) Cell: (404) Panel Members Cathy A. Hansell, CCSR, MS, JD President, Breakthrough Results, LLC TM Executive Producer and Host, Safety Breakthrough Talk Radio TM chansell@breakthroughresults.org Deborah Grubbe President Operations & Safety Solutions 328 South Village Ln. Chadds Ford, PA deb@opsandss.com Ken Sheridan Director of Operations and Security, LGE Kentucky Utilities 820 West Broadway Louisville, Kentucky (502) Kenneth.Sheridan@lge-ku.com 1

2 OVERVIEW What to Do to Prepare for an Inspection Handling Inspections--Employer Rights Establishing Defenses Unpreventable Employee Misconduct Preservation of Evidence Agreements Safety Compliance Audits OSHA Enforcement Trends OSHA conducted 40,648 inspections in 2011, 40,993 in 2010 and 38,667 in 2008 Number of Citations Increased from 96,742 in 2010 to 103,334 in 2011 Average Proposed Federal Penalty for a serious violation up 102% from 2010 ($1,053) to 2011 ($2,132) During 2011, Employers filed 3,175 appeals with the OSHRC up 62% from 2008 Establishments on OSHA Severe Violators Enforcement Program List increased from 182 in July 2011 to 330 in June 2012 Majority of Employers placed on SVEP as a result of inspections producing 2 or more willful, repeat or failure to abate citations for high gravity violations 2

3 What To Do To Prepare for an Inspection Establish an Effective Health and Safety Program Employee Training Before an Employee starts to work (part of orientation) Document the Training Establish work rules designed to prevent accidents Communicate the work rules Effectively enforce work and safety rules when violations are discovered Document the discipline Conduct audits of work and safety rules Demonstrate management commitment to healthy and safe workplace What To Do To Prepare for an Inspection (con t.) Develop a Pre-Inspection Action Plan OSHA Poster Assignment of responsibilities Assure support staff (receptionists, secretaries, guards) are trained Who is the right company person to contact, including your OSHA counsel? Recordkeeping Hazard Assessment and Abatement Equipment needed during inspection Review previous citations are they corrected Review insurance and third-party audits 3

4 Handling Inspections Employer Rights Inspection conducted in a reasonable manner Inspection during a reasonable time Require a warrant from OSHA? Completion of inspection within 6 months Confidentiality Agreements to protect Trade Secrets Establishing Defenses Unpreventable Employee Misconduct Unpreventable Employee Misconduct Affirmative Defense Employer Has Burden of Proof 1) Established a work rule to prevent the reckless behavior or unsafe condition from occurring; 2) Adequately communicated the rule to its employees; 3) Took steps to discover incidents of noncompliance; and 4) Effectively enforced the rule. 4

5 Preservation of Evidence Agreements Avoids spoliation of evidence In writing Employer should not disturb the scene of a fatality or catastrophe, other than to rescue injured persons or to mitigate an imminent danger, until authorized by OSHA or directed by a law enforcement agency Safety Compliance Audits OSHA 21D Consultation Program On-site service for small companies (fewer than 250 and not more than 500 corporate wide) Consultant must notify OSHA if employer fails to immediately eliminate an imminent danger or fails to abate a serious violation found during a prior consultation Conducted by Safety Consultants and Insurance Companies Conducted by or with assistance of Legal Counsel Confidential Attorney-Client Privilege and Attorney Work Product 5

6 Conducted By or With a Assistance of Legal Counsel Attorney-Client Privilege Oldest privilege recognized by Anglo-American The privilege protects communications between attorney and client that are made for the purpose of furnishing or obtaining professional legal advice or assistance. The privilege ensures that a person or entity that seeks advice or assistance from a lawyer should be completely free of any fear that his secrets will be disclosed or uncovered. Conducted By or With Assistance of Legal Counsel (con t.) Attorney Work Product Written materials, charts, notes of conversations and investigations, and other materials directed toward preparation of a case or other legal representation. Generally, an opposing party may not discover or compel disclosure of work product. 6

7 FINAL QUESTIONS? THANK YOU! Tracy L. Moon, Jr. Fisher & Phillips LLP 1075 Peachtree Street NE Suite 3500 Atlanta, Georgia Tel: (404) Cell: (404) Fax: (404)