WORKPLACE VIOLENCE: AN OSHA UPDATE

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje, PLLC.

On October 18, 2017, an employee of a Maryland granite company allegedly killed three co-workers and wounded two others at his place of employment. Police reported that the employee allegedly shot all five co-workers with a .380 caliber handgun.

According to OSHA, “2 million American workers are victims of workplace violence each year.” For Fiscal Year 2015, the Bureau of Labor Statistics reported that workplace violence accounted for 417 homicides; 354 of these homicides were attributed to gun violence. A recent FBI study found that 80% of active shooter situations occurred at work.

OSHA has been addressing workplace violence for years. In the past year, however, the agency has recently undertaken new initiatives to curb workplace violence. On December 6, 2016, OSHA issued a Request for Information to determine whether a new standard is needed to protect healthcare and social assistance workers from workplace violence. On January 19, 2017, the agency published a new Compliance Directive setting forth enforcement procedures and scheduling for occupation exposure to workplace violence. On June 29, 2017, OSHA issued the largest workplace violence citation in history when it issued a $207,690 failure to abate citation and fine against a Massachusetts behavioral health facility.

So, what do employers need to know about OSHA enforcement activities as to workplace violence?

Many Workplace Violence Incidents Must be Reported

All employers are required to notify OSHA when an employee is killed on the job or suffers a work-related hospitalization, amputation, or loss of an eye. A fatality must be reported within 8 hours. An in-patient hospitalization, amputation, or eye loss must be reported within 24 hours.

Fatalities or Injuries From Workplace Violence May Need to be Recorded

Under OSHA regulations, each employer required to keep records of fatalities, injuries and illnesses, must record each fatality, injury or illness that is “work-related.” 29 C.F.R. §1904.4 According to OSHA, an injury is presumed to be work-related if it results from an event occurring in the work environment. A fatality or injury from workplace violence may thus need to be recorded even if the incident itself was not work-related.

OSHA Can Conduct Inspections or Investigations as to Workplace Violence Exposure

The January 19, 2017 compliance directive addresses the procedures for inspections for hazards associated with occupational exposure to workplace violence. The directive provides that these procedures shall include review of the employer’s (1) written plan or other policies and procedures to protect employees from workplace violence; (2) injury and illness records; (3) training records; (4) employee medical records, and (4) other records such as police and security reports. Employee interviews are also contemplated by the directive.

OSHA Can Issue Citations Based Upon Workplace Violence Exposure

There is no OSHA specific standard which addresses workplace violence. However, under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970, employers are required to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious harm.” As to an alleged workplace violence hazard, OSHA can prove a violation of the general duty clause by showing (1) the employer failed to keep the workplace free of a hazard of workplace violence to which its employees were exposed, (2) the hazard was recognized by the employer, (3) the hazard was causing, or likely to cause, death or serious physical harm, and (4) there was a feasible and useful method to correct the hazard.

OSHA Does Issue Citations Based Upon Workplace Violence Exposure

During the period from October 30, 2012 through October 20, 2017, over 50 citations were issued by OSHA under the General Duty Clause against employers for workplace violence exposure. One citation was issued against a retail store where a store associate was shot during an armed robbery.

Another citation was issued against a security company whose security guard was fatally shot by a visitor to a federal building. The abatement proposed by the citation was the development and implementation of a workplace violence prevention program.

Yet another citation was issued against a convenience store where a clerk was set on fire during a robbery. This citation also proposed the development and implementation of a workplace violence prevention program, which included annual training of employees.

Takeaways for Employers

To be sure, not all workplaces can be alleged to have presented a risk of workplace violence, even when an incident occurs. Many incidents are simply incapable of being foreseen by an employer. The General Duty Clause, however, entails elements which are capable of broad interpretation. Especially when there is an employee fatality or horrific injury, OSHA may attempt to stretch the General Duty Clause to its limits. When in doubt, therefore, an employer should implement a written workplace violence prevention program which includes employee training.

If an incident of workplace violence occurs, an employer must also be mindful of its reporting and recording obligations. Even where a violation of the General Duty Clause cannot be shown, an employer can still be cited for not meeting its reporting or recording obligations.

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PREPARING NON-MANAGEMENT EMPLOYEES FOR OSHA INTERVIEWS!

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje, PLLC.

The Occupational Safety & Health Act (“OSH Act”) authorizes OSHA, as part of an inspection of an employer, to “question privately any such employer, owner, operator, agent or employee.” As part of an OSHA inspection, therefore, the employer should expect the agency to request interviews in private with management and non-management employees. A previous posting on this blog has already addressed interviews of management employees.

An employer has a right to inform non-management employees of their rights and obligations during an OSHA interview.  OSHA legal experts generally agree this right should be exercised by an employer.  After all, questioning by a representative of the federal government can be an intimidating experience.  The employee may not know that he or she has the right to say no to the OSHA Compliance Officer; the OSHA Compliance Officer will likely not volunteer this information.  Intimidation and ignorance of employee rights risks inaccurate, confusing or incomplete answers which may lead to citations with significant fines. Knowledge can thus serve not only the employee, but also the employer.

There nevertheless are risks with undertaking to inform non-management employees of their rights and obligations during an OSHA interview.  First, an employee may misinterpret the undertaking as an indication the employer has something to hide.

Second, such an undertaking can be misinterpreted by an employee to be an effort at intimidation immediately prior to the interviews.  Such intimidation can itself be  a violation of Section 11(c) of he OSH Act which prohibits discrimination against an employee who exercises any rights afforded by the Act.

Third, such an undertaking can itself be the topic of discussion during the interviews. OSHA will likely become aware of the efforts of an employer to speak with its employees beforehand. This may prompt OSHA to change strategies and attempt to contact employees while they are away from work.

Fourth, such preparation may face logistical issues, especially if the inspection allows only a short time for briefing the employees. By the time an interview is requested, an employee may only be partially prepared or not prepared at all.

Still, OSHA legal experts are right about the importance of preparing non-management employees for private interviews during an inspection. So, how should an employer go about ensuring that these employees are adequately prepared without the inherent risks associated with last minute efforts?

This writer believes that a written explanation of non-management employee rights and obligations during an OSHA inspection may be one solution. This written explanation can be (1) included with the employer’s safety and health rules, (2) reviewed as part of a safety training session, or (3) posted with other employment-related posters.  The written explanation may also be distributed on the date of the inspection to serve as a reference guide in the event employees have questions during the interview.

A well-written explanation should address four areas: (1) OSHA inspections, (2) employee rights, (3) employee obligations, and (4) freedom from retaliation.

(1) OSHA Inspections: As to OSHA inspections, employees should be advised in writing:

  • OSHA has the statutory authority to conduct inspections of the employer’s workplace.
  • As part of an inspection, OSHA may ask to speak privately with employees at work.
  • As part of an inspection, OSHA may try to contact employees away from work.
  • The purpose of the written explanation is simply to inform the employees of their rights and obligations during interviews, and not to state any position of the employer with respect to the interviews.

(2) Employee Rights: As to employee rights, employees should be advised in writing:

  • The employee’s right to speak to the OSHA Compliance Officer.
  • The employee’s right not to speak to the OSHA Compliance Officer, absent a subpoena.
  • The employee’s right to speak to the OSHA Compliance Officer at a time and place of his or her choosing.
  • The employee’s right to speak to the OSHA Compliance Officer only through a translator if English is not his or her primary language.
  • The employee’s right to speak to the OSHA Compliance Officer privately.
  • The employee’s right to speak to the OSHA Compliance Officer with another person present. This person can be an employee representative, a management representative, a personal attorney or the employer’s attorney.
  • The employee’s right to break or conclude the interview at any time.
  • The employee’s right to sign a statement at the conclusion of the interview.
  • The employee’s right to decline to sign a statement at the conclusion of the interview.
  • The employee’s right to consent to being recorded during the interview.
  • The employee’s right to refuse to consent to being recorded during the interview.
  • The employee’s right to explain working conditions in his or her own words, rather than in words provided by the OSHA Compliance Officer.

(3) Employee Obligations: As to employee rights, employees should be advised in writing:

  • The employee must be truthful with the OSHA Compliance Officer.
  • The employee’s obligation to be truthful means he or she should not guess or speculate in response to any question from the OSHA Compliance Officer. An “I don’t know” answer is acceptable.  “I guess”, “I suppose”, “possibly” or “maybe” are not acceptable answers.
  • The employee’s obligation to be truthful means he or she should not answer questions without an understanding of what is being asked.

(4) Retaliation: As to retaliation, employees should be advised in writing:

  • The employer will not retaliate against an employee who exercises any of the rights set forth in the written explanation, or under the OSH Act.
  • Any retaliation should be reported immediately so that corrective action can be taken.

Of course, there are also risks with this solution. A poorly drafted document may only create confusion to the detriment of the employee and employer, if not an OSHA citation.  A document reminding employees of OSHA’s authority to conduct inspections may prompt a complaint with the agency which may not have otherwise been filed.  An OSHA Compliance Officer may even attempt to use the document against the employer in interview; without a management representative present, there would be no one to refute OSHA’s point of view.

This much is certain, however.  Preparation of non-management employees for OSHA interviews is a worthwhile undertaking, as long as it is done cautiously and with due attention to the risks involved.  The alternative is a leap of faith where the stakes are an OSHA citation with significant fines.

ROADSIDE VIEW YIELDS 14 CITATIONS AND $1.5M IN PROPOSED FINES!

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje, PLLC.

Can OSHA issue citations against an employer even without a formal inspection, and the requisite components of an opening conference, record inspection, walk-around inspection, employee interviews and closing conference? As demonstrated by citations recently issued by the agency against Great White Constructions, Inc., the answer to this question is yes. As long as violations are in plain view from outside the worksite, citations can be issued.

On February 3, 2017, a view from a public road allowed an OSHA inspector to observe two adjacent worksites in St. Augustine, Florida where Great White was a roofing contractor. From this vantage point, the inspector photographed 11 employees working on the roof tops. These photographs formed the basis for 8 citations on August 1, 2017 proposing $850,128.00 in fines as to one worksite, and 6 citations on August 1, 2017 proposing fines of $673,582.00 as to the other worksite.

Interestingly, separate citations were issued as to each of the employees exposed to fall hazards under 29 C.F.R. § 1926.501(b)(13). Each of 11 employees was identified by description, not name. For instance, six employees at one worksite were identified as follows:

* “male employee wearing a straw hat, white striped shirt, tennis type shoes, and tan cargo type pants”

* “male employee with black hair, smoking a cigarette, wearing a blue shirt, and blue jeans”

* “male employee with black hair, wearing a red baseball cap, a white long sleeve shirt, and blue jeans”

* “male employee with black hair, wearing a black baseball cap, a black color shirt, and blue jeans”

* “male employee wearing a straw hat, blue striped shirt, and blue jeans”

* “male employee with black hair, wearing a baseball cap turned around, an aqua color shirt, and tan cargo type pants”

The August 1st citations referenced 12 previous inspections for which Great White had been cited for similar violations. This history may not be typical for most employers.  The citations are also mere allegations, and not final orders of the Occupational Safety & Health Review Commission. Still, Great White’s experience on February 3, 2017 serves as a cautionary tale for other employers. Just because OSHA is not knocking on your door does not mean it is not watching you.

SURVIVING THE FIRST MINUTES OF AN OSHA INSPECTION!

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje, PLLC.

Early one morning, an OSHA Compliance Safety & Health Officer arrives unannounced at your place of business requesting an immediate inspection of your workplace, interviews of your employees and a review of safety-related documentation. In ideal circumstances, the OSHA inspection would proceed immediately, and in an orderly fashion, to an opening conference where a management representative would (1) inspect the search warrant or employee complaint,  if any, (2) decide whether to allow the inspection, and (3) discuss the scope of the inspection.

As many employers can attest, not all OSHA inspections begin under such ideal circumstances. The Compliance Officer may arrive at the workplace at a time when (1) no management representative is immediately available, or (2) other matters are demanding the employer’s immediate attention.  The Compliance Officer may be alone with an employee who is ill-prepared for such an encounter. Even worse, the Compliance Officer may be left alone to wander the workplace, and witness not only the employer’s operations, but also the urgent clean-up prompted by OSHA’s arrival.

The first minutes of an OSHA inspection, however, can be critical. Anything said by a management or non-management employee before the opening conference can become a part of the inspection file. Anything seen by the Compliance Officer before the opening conference can likewise become part of the inspection file.  These developments can form the basis not only for citations and fines, but also a broader scope of inspection than may have been authorized beforehand.

Just as any other part of an OSHA inspection, therefore, the short time-period between the arrival of the Compliance Officer and the opening conference should be managed.  So, what do you need to do or don’t do to survive these critical first minutes of an OSHA inspection?

DON’T enable communications with OSHA by non-management employees. As set forth in previous posts (here and here) on this blog, the opening conference provides the employer with an opportunity to safeguard its rights during an OSHA inspection. Communications by the Compliance Officer with non-management employees before the opening conference may hinder this opportunity. If the inspection moves forward, there will be a time for interviews of non-management employees. At least as to the time-period before the opening conference, non-management employees should be instructed that all communications with the Compliance Officer shall be through management representatives.

DON’T enable decisions by non-management employees. The open conference also provides the employer with the opportunity to make informed decisions about the future course of the OSHA inspection. This opportunity may be lost if a non-management employee allows the Compliance Officer to see the workplace before the opening conference. If the inspection moves forward, there will be a time for a physical inspection of the premises and a review of documents.  At least with respect to the time-period before the opening conference, non-management employees should be instructed that the only persons with authority to allow an OSHA inspection to proceed are management representatives.

DO review the Compliance Officer’s credentials. Typically, a Compliance Officer will voluntarily provide his/her credentials immediately upon arrival at the workplace. Take the time to review the credentials.

DO take the situation seriously. An OSHA inspection can be the beginning of a civil or even criminal legal process that can have significant adverse consequences for your business. Since January 20, 2017, over sixty citations have been issued by the agency proposing fines in excess of $100,000. On January 20, 2017, a Missouri company was convicted of OSH Act violations in connection with the death of an ironworker.

DON’T panic. A calm rational and informed response is the best strategy for managing the risks of an OSHA inspection.  As noted in a previous post on this blog, whether it is better for the employer to allow or deny access to the Compliance Officer may not be apparent in the opening minutes of the inspection.

DON’T assume there is nothing you can do. As set forth in multiple posts on this blog, there are rights and strategies which an employer can exercise before, during and after an OSHA inspection to minimize the risk or magnitude of adverse consequences for its business. Even if an employer does not own or control the worksite which is the subject of the inspection, there is always something it can do to protect its rights.

DON’T assume there is nothing you need to do. An employer is often its own worst enemy if it approaches an OSHA inspection with (1) complacency about the safety of its own workplace, or (2) the belief that it has nothing to hide. History is replete with OSHA citations issued against employers which operated under such false assumptions. The exercise of rights and strategies afforded by law can be instrumental in minimizing legal and financial exposure.

DO act quickly. Without immediate management of the situation, an employer exposes itself to citations for safety hazards even before the opening conference has begun. An employer may have several matters which require its attention on the day of an OSHA inspection. These matters should be balanced against the potential risk of OSHA citations and fines of six figures or more.

DO limit the Compliance Officer’s movements. If the employer does own or control the worksite of the inspection, it should endeavor to limit the movements of the Compliance Officer between the time of his/her arrival and the opening conference. Any view of previously unseen parts of the workplace should be specifically avoided. Even a request by the Compliance Officer to use the restroom should consider what may be seen along the path to and from the restroom.

DO keep the time-period before the opening conference short. The time between the arrival of the Compliance Officer and the opening conference must be kept short. Otherwise, the Compliance Officer will leave to (1) obtain a search warrant, or (2) seek enforcement of a search warrant. Such options may not always be in the employer’s interest.

DON’T be pressured by the Compliance Officer. If an OSHA inspection does not move forward with deliberate speed, the Compliance Officer may ask whether the inspection is being refused. Until the decision is finally made whether to proceed with the inspection, the answer must be no. An employer should never be pressured to abandon its rights during an inspection.

DO choose a strategic location for the opening conference. If the employer does own or control the worksite of the inspection, a long trip to the location of the opening conference may not be in its best interest. Everything viewed by the Compliance Officer along the way can be the basis for a citation. Long trips should thus be avoided.

DO Show Respect for the Inspection Process. OSHA views the inspection as an essential tool to police employee health and safety. An OSHA inspection is neither the time nor the place to attack the process by which the OSH Act is enforced.  A disrespectful attitude toward the inspection can be viewed as indifference toward employee health and safety.  An employer should avoid statements to the effect that:

This Inspection is an Annoyance.”  At no time during an inspection should an employer indicate to OSHA that the inspection is a waste of time or a mere annoyance.

How Quickly Can this Inspection be Wrapped Up?”  Although concluding an inspection within a reasonable time period is a worthwhile goal, the employer should not unreasonably rush the CSHO or indicate that it has more pressing matters to attend to.  The CSHO will likely not respond favorably to impatience.

DON’T hesitate to seek assistance.  Finally, the time period before the opening conference provides the opportunity to seek assistance from others more knowledgeable regarding OSHA inspections.   Such assistance can be from legal counsel, but also can be from occupational safety and health experts.

OSHA UNDER TRUMP: WHAT DO WE KNOW AFTER FIVE MONTHS?

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje, PLLC.

It has now been five months since Donald Trump’s January 20, 2017 inauguration. So, what insights have the first five months revealed about OSHA under Trump?

What Has Been Delayed?

Beryllium Rule: The effective date of this rule was delayed from March 1, 2017 to May 20, 2017.

Crystalline Silica Standard for Construction: Under the standard, certain obligations were to begin on June 23, 2017. An April 6, 2017 Memorandum announced that enforcement of the standard would be delayed until September 23, 2017.

Electronic Submission of Injury and Illness Logs: As noted in in a May 2016 post on this blog, certain employers are required to submit injury and illness logs to OSHA electronically beginning on July 1, 2017. The agency has announced that it is not accepting electronic submissions of injury and illness records at this time and has proposed extending the July 1 deadline to December 1, 2017.

What Has Changed?

Public Shaming: As noted in an August 2016 post on this blog, one strategy employed by OSHA under the Obama administration was to publicly shame cited businesses in news releases on the agency’s website. With Donald Trump’s inauguration, this practice abruptly stopped, at least with respect to citations with lower dollar amounts. Since January 20th, only four citations have been the subject of news releases on OSHA’s website.

Fairfax Memorandum: The Occupational Safety & Health Act (“OSH Act”) recognizes the role of an “employee representative” who may represent employees’ interests in enforcement related matters. For instance, the Act authorizes participation in the walkaround portion of an OSHA inspection by “a representative authorized by [the employer’s] employees.”

On February 21, 2013, Deputy Assistant Director Richard E. Fairfax authored a Memorandum opining that, even in the absence of an applicable collective bargaining agreement, the role of employee representative can be a person affiliated with a union or community organization. This action prompted a lawsuit by the National Federation of Independent Business (“NFIB”) challenging the memorandum.

On April 25, 2017, OSHA issued a new Memorandum notifying all Regional Administrators that OSHA had rescinded the Fairfax memorandum. The memorandum explained only that the Fairfax memorandum was unnecessary. Two days later, the NFIB moved to dismiss its lawsuit.

New Standards: On January 31, 2017, President Trump issued an Executive Order regarding Fiscal Year 2017. The Executive Order mandates that “whenever an executive department or agency publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.” This action shows that, in contrast to the previous administration, new OSHA standards are unlikely under Trump.

What has Not Changed?

Big Fines: As noted in a February 2016 post on this blog, the Federal Civil Penalties Inflation Adjustment Act of 2015 allowed for increased OSHA penalties, beginning on July 1, 2016. In the closing months of the Obama administration, therefore, big fines became more commonplace.

As noted in an earlier post on this blog, more than 50 citations proposing penalties in excess of $100,000 have been issued by OSHA since January 20, 2017. Accordingly, big fines remain commonplace under Trump.

What is Still Uncertain?

OSHA Administrator: Dr. David Michaels left OSHA on January 10, 2017.  At the time of this writing, no new OSHA Administrator has been nominated, much less confirmed.  This delay is not unprecedented. Dr. Michaels was first nominated by President Obama on July 28, 2009; he was not confirmed by the U.S. Senate until December 3, 2009.

Long-Term Strategy: Under President Bush, OSHA Administrator Edwin G. Foulke, Jr. pursued a “voluntary compliance strategy.” Under President Obama, Dr. Michaels shelved this strategy in favor of one promoting deterrence through high OSHA penalties. This new strategy was exemplified in memoranda issued on September 10, 2010 and March 27, 2012.

Until the new OSHA Administrator is confirmed, it is uncertain what strategy will be pursued by the agency going forward. Given President Trump’s repeated public statements and tweets regarding government regulation, such strategy will likely be more akin to that employed by Mr. Foulke than Dr. Michaels. In the meantime, however, Dr. Michaels’ strategy remains intact, as demonstrated by the fines proposed this year. If any relief is forthcoming for employers, it is likely months away. Accordingly, it is recommended that employers continue to exercise the cautionary approach to OSHA inspections outlined in previous posts on this blog.

TEN REASONS TO CONTEST AN OSHA CITATION!

Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje, PLLC.

Following receipt of an OSHA citation, an employer has only a short period – 15 workings days – to contest the citation.  If not timely contested, the citation and proposed penalties become a final order of the Occupational Safety & Health Review Commission (“OSHRC”) and may not be reviewed by any court or agency.

There can be valid reasons for not timely contesting a citation.  For example, it may be determined that the time and expense of a contest outweighs any potential benefit.

There also can be valid reasons for contesting a citation.  Under certain circumstances, litigating before the OSHRC may be preferable to acceptance of a citation or settlement at the informal settlement conference. Only by reviewing these reasons with legal counsel can a truly informed decision be made as to how to respond.

No Violation Occurred

OSHA generally has the burden of proving that a violation of the Occupational Safety & Health Act occurred. If this burden likely cannot be met, or the evidence shows that no violation occurred, a notice of contest may be worthy of consideration.

Wrong Category of Violation Cited

For a willful violation, OSHA has a higher burden of proof than for a serious or other-than-serious violation.  For a serious violation, OSHA has a higher burden than for another-than-serious violation.  If the applicable burden likely cannot be met for the category cited, a notice of contest may be worth exploration.

Availability of Affirmative Defense

Just as with other civil litigation, there are certain procedural and substantive affirmative defenses to OSHA violations.  The burden of proving an affirmative defense lies with the employer.  If this burden can likely be met as to a violation, a notice of contest may be worth evaluating.

Proposed Penalty Amount is Significant

Where the citation proposes a significant or egregious violation penalty, the financial stakes may be sufficiently high to warrant an analysis of the risks and benefits of a notice of contest.

Costly Abatement

Where the citation mandates a costly abatement, or an abatement which requires business disruption, the financial stakes may again be sufficiently high to assess the options of a notice of contest.

Settlement Options

Settlement of a citation is generally an option both before a notice of contest is filed and after a notice of contest is filed.  If informal settlement is not a viable option before the applicable deadline, a notice of contest may be necessary to preserve settlement as an option.  In other circumstances, it may be worthwhile to compare the settlement opportunities before a notice of contest with the settlement opportunities after a notice of contest.

Risk of Repeat OSHA Citations

Previous citations can be cited by OSHA as a basis for later willful or repeat violations. Previous citations may also form the basis for later egregious violations, or inclusion in OSHA’s Severe Violator Enforcement Program.  A citation which places an employer in OSHA’s Severe Violator Program increases the frequency of inspections, and thus the likelihood of future citations.  Under certain circumstances, therefore, the risk of future OSHA inspections and citations can be a consideration favoring a notice of contest.

Future Potential Civil Liability

State laws vary significantly as to the admissibility and relevance of OSHA citations in personal injury litigation.  If such litigation is possible, the admissibility and relevance of the OSHA citation may in certain states weigh in favor of a notice of contest.

Reputation in the Industry

For many businesses, a reputation for safety in the workplace is an asset worth fighting to protect.  An OSHA citation may be the basis for the loss of ongoing business relationships or the loss of future business relationships. Inclusion in OSHA’s Severe Violator Enforcement Program can be especially damaging. Depending upon the circumstances, a notice of contest may be worthwhile to protect the business’ reputation.

Increased Worker’s Compensation Insurance Premiums

Several states have statutes which authorize an increase in workers’ compensation insurance premiums based on safety and health violations.  An increase in worker’s compensation insurance premiums may be a reason to contest an OSHA citation.

Not all OSHA citations are worth contesting.  In consultation with legal counsel, the prudent decision may be to accept the citation or reach a settlement with OSHA at the informal settlement conference.  Unless the reasons for contesting an OSHA citation are fully considered, however, the employer risks an uninformed decision which may later come back to haunt it.

WORKER DEATHS LEAD TO CRIMINAL INDICTMENTS, $1.4M OSHA FINE

By Robert G. Chadwick, Jr., Managing Member, Seltzer Chadwick Soefje, PLLC

On October 21, 2016, two employees of Atlantic Drain Service, Inc. died when the approximately 12-foot deep trench in which they were working in Boston collapsed, breaking an adjacent fire hydrant supply line and filling the trench with water. In February 2017, a Suffolk County grand jury indicted Atlantic Drain and its owner on two counts each of manslaughter and other charges in connection with the deaths.

On April 11, 2017, OSHA cited Atlantic Drain for a total of 18 willful, repeat, serious and other than serious violations.  The citations propose $1,475,813 in penalties. The citations are also the first publicly announced by the agency on its website since President Trump’s inauguration on January 20, 2017.  In this announcement, OSHA noted previous citations against Atlantic Drain for trench hazards in 2007 and 2012.

Although Massachusetts law forms the basis for the Suffolk County indictments, the Occupational Safety & Health Act (“OSH Act”) may also be implicated in the worker deaths.  The Act provides that “[a]ny employer who willfully violates any [OSHA] standard … , and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months.”

On December 17, 2015, in fact, the U.S. Department of Justice announced a new Initiative to expand the prosecution of OSH Act crimes.  On January 20, 2017, a Missouri company was convicted of OSH Act violations in connection with the death of an ironworker.  On March 8, 2016, an Illinois company pleaded guilty to OSH Act violations in connection with the death of an employee resulting from an unguarded conveyor belt.  On March 29, 2016, a Pennsylvania roofing company owner was sentenced to prison for OSH Act violations which included failure to provide fall protection for an employee who fell to his death.  Accordingly, there likely exists a Justice Department file regarding the October 21, 2016 fatalities.

Historically, worker deaths have resulted in few criminal prosecutions, and even fewer criminal convictions.  The Department of Justice initiative and the Suffolk County prosecution show that this pattern has changed significantly.  High fines may be the least of an employer’s worry in the wake of an employee fatality; more than ever before, imprisonment is a possibility that must be considered.