f court r osha’ three-year look b p r v partner epeat … 3 21 osha 3030... · 2018-03-22 ·...
TRANSCRIPT
Presented by:
Manesh K. RathPartner
Larry P. HalprinPartner
FEDERAL COURT REVIEW OF
OSHA’S THREE-YEAR LOOK BACK
POLICY FOR REPEAT VIOLATIONS
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3Copyright © 2018
Manesh Rath is a partner in Keller and Heckman’s litigation and OSHA practice groups. He has been the lead amicus counsel on several cases before the U.S. Supreme Court including Staub v. Proctor Hospital and Vance v. Ball State University.
Mr. Rath is a co-author of three books in the fields of wage/hour law, labor and employment law, and OSHA law. He has been quoted or interviewed in The Wall Street Journal, Bloomberg, Smart Money magazine, Entrepreneur magazine, on "PBS's Nightly Business Report," and C-SPAN.
Mr. Rath currently serves on the Board of Advisors for the National Federation of Independent Business (NFIB) Small Business Legal Center. He served on the Society For Human Resources (SHRM) Special Expertise Panel for Safety and Health law for several years.
MANESH K. RATH
Manesh RathPartner
He was voted by readers to Smart CEO Magazine's Readers' Choice List of Legal Elite; by fellow members to The Best Lawyers in America 2016, 2017 and 2018; selected by Super Lawyers 2016 – 2017, 2017 – 2018; and by corporate counsel as the 2017 Lexology winner of the Client Choice Award.
4Copyright © 2018
Lawrence Halprin is a partner in Keller and Heckman’s workplace safety and health, chemical regulation and litigation practice groups. He is nationally recognized for his work in workplace safety and chemical regulation. His workplace safety and health practice covers all aspects of legal advocacy, including: representing clients in OSHA and MSHA investigations and enforcement actions; providing compliance counseling and training; conducting incident investigations, compliance audits and program reviews; participation in federal (OSHA, MSHA and NIOSH) and state rulemakings and stakeholders processes; bringing and intervening in pre-enforcement challenges to final agency rules; advising on legislative reform and oversight; and participation in the development of national consensus standards under the ANSI process, and TLVs under the ACGIH process.
LAWRENCE P. HALPRIN
Mr. Halprin's engineering and financial background and extensive knowledge of OSHA rulemakings have greatly enhanced his ability to provide compliance counseling and represent clients in enforcement actions, and evaluate and critique rulemaking proposals and suggest alternative approaches. On behalf of one or more clients, Mr. Halprin has participated in almost every major OSHA rulemaking over the past 25 years as well as numerous Cal-OSHA rulemakings.
Lawrence Halprin
Partner
202-434-4177
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Overview of facts in recent OSHA citation
Review of OSHA’s Look Back Policy
Understanding the employer’s challenges to the OSHA citation
Explanation of the 2nd Circuit’s decision
What employers should do
TOPICS TO BE DISCUSSED
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Triumph Construction is a general contractor
Engaged to replace water mains in lower Manhattan
New York City Dept. of Design and Construction oversaw project
West 10th Street between Greenwich Ave. and Avenue of the Americas
OVERVIEW OF FACTS
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Process:
Excavation by backhoe
About 68 inches deep
Clear by hand at 2-3 feet for cross-running utilities
Remove old cast iron water main pipe
Level the ground underneath
Connect new ductile iron pipe
OVERVIEW OF FACTS
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August 22, 2014
Backhoe was operating, struck object
Employee entered the trench to clear and identify
Trench cave in of soil and pavement
OSHA compliance officer arrived within two hours
OVERVIEW OF FACTS
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OSHA issued a “2d Repeat”
2009: Triumph cited under same standard• Triumph contested
• Stipulated settlement as a serious, b/c Commission Final Order
2011: Informal Settlement Agreement• OSHA citation
• Triumph submitted Notice of Contest
• Informal Settlement Agreement (in which Triumph waived its rights to contest)
OVERVIEW OF FACTS
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Triumph challenged the “Repeat” classification• The 2009 citation was beyond the three-year “look
back” provision in the OSHA Field Operations Manual
• The 2011 citation was also beyond the three-year “look back”
• Also, the 2011 citation ended in an informal settlement agreement that Triumph asserted was not presented to the Commission for entry of a Final Order
• Thus, the earlier citations did not constitute “predicate violations” for a Repeat classification
EMPLOYER’S CHALLENGES TO CITATION
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OSHA’S LOOK BACK POLICY
• Field Operations Manual• 2009 edition: Inspectors may base “Repeat” on
a predicate violation within the prior three years• 2010 edition: Changed period to five years• FOM expressly disclaims that it confers any rights
on employers; described as guidance for CSHOs• Expressly states that Area Directors may deviate
from look back period based on circumstances
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• Any employer who … repeatedly violates the requirements of section 5 of this Act, any standard, rule, or order promulgated pursuant to section 6 of this Act, or regulations prescribed pursuant to this Act, may be assessed a civil penalty of not more than [$129,336] for each violation ….
• The Act does not define “repeatedly.”
OSH ACT
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Chevron – does it apply?
• Ambiguous?
• Interpretation by agency charged with administering statute
• Is the agency's interpretation based on a permissible construction of the statute?
Detrimental Reliance on three-year policy
• Generally not available absent fraud
• Was publicly announced
INTERPRETATION OF OSH ACT ISSUES
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• Case apparently tried on detrimental reliance
• Analysis:
– FOM does not confer any rights/enforceable expectations;
– FOM expressly gives Area Directors discretion to deviate from three- or five-year look back
– Triumph cannot claim that it relied to its detriment upon the FOM when entering those prior settlement agreements
– OSHA did not abuse its discretion by relying on prior violations to establish a “Repeat”
2ND CIRCUIT DECISION
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Act does not define “Repeat”
OSHA established a 3-year look back enforcement policy for decades
OSHA then unilaterally changed to a five-year look back
OSHA’s interpretation of Congressional intent is subject to deference analysis.
• Agency interpretation of its own rules = Auer
• Agency interpretation of a statute = Chevron
– 1. Ambiguity; 2. Interpretation is reasonable
WHAT EMPLOYERS SHOULD DO
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Re-assess risk of settling each citation based on potential for repeat • Try to narrow or modify to minimize risk
• If faced with repeat, consider broader challenges
• Is it the same alleged violation? Same company? Same management? Same site?
Was this policy issue raised during transition? The opportunity remains
Listen to employee concerns to minimize complaint inspections
Operate safely to avoid accident inspections
WHAT EMPLOYERS SHOULD DO
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MORE FROM THE OSHA 30/30:
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Manesh RathPartner
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Lawrence Halprin
Partner
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