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CONVENTION SESSION HANDOUT
“How to Navigate Your Way Through an OSHA Investigation”
Phillip B. Russell, Tampa
Christopher Caiaccio, Atlanta Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
SESSION #2 Independent Electrical Contractors
4401 Ford Ave, Ste 1100, Alexandria, VA 22302 Phone 703-549-7351 Fax 703-549-7448
www.ieci.org
How to Navigate Your Waythrough an OSHA Investigation
presented by
Phillip B. Russell
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.100 North Tampa Street, Suite 3600, Tampa, FL 33602
(813) 221-7265 (dd) / / (813) 966-6598 (cell) / / (813) 289-6530 (fax)[email protected] / / www.ogletreedeakins.com
IEC CON 2015: Conduit for ProfitTampa Convention Center
Tampa, FLOctober 22, 20158:00am – 9:00am
Phillip B. Russell(Shareholder – Tampa)
Workplace Safety and Health (OSHA and State Agency Investigations)
Through 20 years of practice, Phillip has developed extensive experience across abroad range of labor and employment law matters representing businesses in manyindustries. He has become a trusted advisor to large and small clients that needcomprehensive practical solutions to workplace legal needs.
Phillip has extensive experience representing construction companies and contractorsand other employers in handling OSHA fatality, catastrophic, and other injury or illnessinvestigations. Some recent cases include fatalities or catastrophic injuries involvingfalls, trenches, confined spaces, electrocutions, elevator shafts, heavy constructionequipment rollovers, and heavy equipment failures. In most cases, OSHA or the stateagency decided not to issue citations or issued citations with substantially lowerpenalties or citations than initially expected.
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IEC CON 2015Oct. 21-24, 2015
Phillip B. Russell, Esq.October 22, 2015
How to Navigate Your Way through anOSHA Investigation 1
Thursday, October 22, 2015
8:00am – 9:00am
Phillip B. Russell, Tampa
Christopher Caiaccio, Atlanta
Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
It Only Takes A Second…
• Backhoe operator’s hand slips; kills a laborer.– Was his grandson.
• Safety director’s son falls to his death.– Was not wearing safety harness.
• Operator flips roller.– Was not wearing his seat belt.
• Laborer slides into unseen sinkhole.– Only warning sign was wet ground.
• Worker cut in half by descending elevator.– It was not locked out.
Stop! Breathe!!!
SCUBA Survival Tips
IEC CON 2015Oct. 21-24, 2015
Phillip B. Russell, Esq.October 22, 2015
How to Navigate Your Way through anOSHA Investigation 2
What is OSHA’s mission?
We are not aneducationalinstitution.
We are here to punish!
Quick List – Top 10 OSHA Violations
1. Fall Protection: structural integrity andunprotected edges.
2. Hazard Communication: informationregarding hazardous chemicals.
3. Scaffolding: proper suspension and support.
4. Respiratory Protection: equipment to preventinhalation of dust, gases, etc.
5. Electrical, Wiring Methods.
IEC CON 2015Oct. 21-24, 2015
Phillip B. Russell, Esq.October 22, 2015
How to Navigate Your Way through anOSHA Investigation 3
6. Powered Industrial Trucks: design,maintenance and use of motorized trucks.
7. Ladders.
8. Lockout/Tagout: machines with unexpected ordelayed energization.
9. Electrical, General Requirements.
10. Machine Guarding.
Things You Need To Know
1. Your duties as an employer.
2. How OSHA enforces the law.
3. How to handle a fatality or serious injuryinvestigation.
4. Your recording and reporting obligations –recently expanded!
5. Enforcement is critical!
1. Safety Program
2. Safety Training
3. Enforcement
Auditing
IEC CON 2015Oct. 21-24, 2015
Phillip B. Russell, Esq.October 22, 2015
How to Navigate Your Way through anOSHA Investigation 4
Safety Program
1. General statement in your employee handbook.
2. Separate safety handbook.
– Emphasize the hazards your employeesencounter most often.
– Readable! Accessible!
– Supervisors must fully embrace it!
Safety Training
Who is doing the training?
– Huge issue for OSHA.
When?
– Initial and recurring.
How?
– Classroom alone – not enough!
– Demonstrations are key.
– Practice emergencies and rescues.
Enforcement
1. The BEST Safety Program and the BEST SafetyTraining will fail without enforcement!!!!
2. If you are not writing up employees andsupervisors for failing to follow the safetyprogram and training, you cannot show thatyou take safety seriously!
3. Maintain a separate safety violations file.
IEC CON 2015Oct. 21-24, 2015
Phillip B. Russell, Esq.October 22, 2015
How to Navigate Your Way through anOSHA Investigation 5
Auditing
Regularly scheduled? –
– Don’t bother!
– The Hawthorne Effect
Random, un-announced is the only way to go.
Critical to having an effective workplace safetyprogram.
How Would You Answer These Questions Under Oath?
1. Are you familiar with your company’s safetyprogram? Who developed it and when? Whatwere their qualifications?
2. Do you discipline employees for not followingthe rules in your safety program? How can youprove that to us?
3. Do you conduct periodic safety audits(unannounced, of course) to make sureemployees are following your safety programand being safe? Why not?
4. When is the last time you conducted anytraining on any safety issues?
5. How do you keep disciplinary records foremployees who have violated safety rules?
6. How often to you check-up on employees andwhether they follow your safety rules?
7. Who does the check-ups? Do you announceyour site visits in advance?
8. What do you do if you find someone is notfollowing the rules?
IEC CON 2015Oct. 21-24, 2015
Phillip B. Russell, Esq.October 22, 2015
How to Navigate Your Way through anOSHA Investigation 6
Employer Duties
• Maintain a safe workplace.
- And prove it!
• Record some things.
• Report others.
• Conduct thorough investigations.
Employer Duties
General Duty Clause §5(a)(1)
– free from recognized hazards that are causing or arelikely to cause death or serious physical harm.
Specific Standard §5(a)(2)
– Employer must comply with applicable occupationalsafety and health standards.
Recording / Reporting Requirements
RECORDING• death• days away from work• restricted work activity
• loss of consciousness
• transfer to another job
• medical treatment (other than first aid)
REPORTING CHANGES – Will be published!!
IEC CON 2015Oct. 21-24, 2015
Phillip B. Russell, Esq.October 22, 2015
How to Navigate Your Way through anOSHA Investigation 7
“Improving” OSHA Recordkeeping
Mandatory E-filingof OSHA 300 and
300A Logs to OSHA
All Logs PublishedOnline
Details TBD
How Does OSHA Enforce the Law?
•Random or targeted?Inspections
•Accidents or Complaints.Investigations
•Willful, Repeat, Serious, OTS.Citations and
Penalties
•Press releases same time ascitation.Shaming
Managingan OSHA
Inspection
IEC CON 2015Oct. 21-24, 2015
Phillip B. Russell, Esq.October 22, 2015
How to Navigate Your Way through anOSHA Investigation 8
Managing An OSHA Inspection
Be Nice
Polite
Professional
Civil
IEC CON 2015Oct. 21-24, 2015
Phillip B. Russell, Esq.October 22, 2015
How to Navigate Your Way through anOSHA Investigation 9
Basis For Inspection
Accident?
Complaint?
Random Inspection?
OSHA Inspections
OpeningConference.
Walkaround. Interviews.DocumentRequests.
ClosingConference.
OSHA Citations
IEC CON 2015Oct. 21-24, 2015
Phillip B. Russell, Esq.October 22, 2015
How to Navigate Your Way through anOSHA Investigation 10
Willful Citation
A violation is willful if the employer knew of acondition that violated a standard andcommitted it voluntarily with intentionaldisregard or plain indifference to the law.
A willful violation may result in a minimumpenalty of $5,000 and a maximum penalty of$70,000.
Repeat Violation
A repeat violation is one where, upon re-inspection, a substantially similar violation isfound.
• The original violation must be final--acitation under contest cannot serve as abasis for a repeat.
• While law specifies no time limit, OSHAlimits to 3 years.
A repeat violation may result in a penalty of upto $70,000.
Serious Violation
A serious violation refers to a violation that presents a“substantial probability that death or serious physicalharm would result.”
The issue is not whether there is a substantialprobability that an accident will occur, but whether if anaccident occurs, is there a substantial probability thatdeath or serious harm will result.
A serious violation may result in a penalty of upto $7,000.
IEC CON 2015Oct. 21-24, 2015
Phillip B. Russell, Esq.October 22, 2015
How to Navigate Your Way through anOSHA Investigation 11
Other Than Serious Violation
An other than serious violation is a violationthat is not serious—that is, if an accident wereto occur, it is substantially likely that somethingless than death or serious physical harm wouldoccur.
An other than serious violation may result in apenalty of up to $7,000.
Criminal Penalties
Falsifying records.
Willfully violating a standard thatcauses the death of an employee.
General criminal liability.
OSHA Citations
They’re Not Final
Do Not Delay
– 15 working days to respond – not negotiableor moveable for any reason.
IEC CON 2015Oct. 21-24, 2015
Phillip B. Russell, Esq.October 22, 2015
How to Navigate Your Way through anOSHA Investigation 12
Don’t Pay Them Right Away
When To Litigate?
Notice Of Contest
Tell OSHA What You’re Contesting.
– Violation itself
– Classification
– Penalty
– Abatement period
– Abatement
– All of the above
IEC CON 2015Oct. 21-24, 2015
Phillip B. Russell, Esq.October 22, 2015
How to Navigate Your Way through anOSHA Investigation 13
Things You Need To Do Now
Review your safety policy compliance andenforcement evidence.
Audit your safety program and training.
Develop an OSHA investigation toolkit.
Contact information, checklists, other resources
Whistleblower Protection under OSHA
• Section 11(c) of the OSH Act prohibitsemployers form discriminating or retaliatingagainst employees for exercising their rightsunder the OSH Act.
• These rights include filing an OSHA Complaint,participation in an inspection or talking to anOSHA inspector, seeking access to employeeexposure and injury records, reporting aninjury, and raising a health and safetycomplaint with employer.
Whistleblower Protection under OSHA(continued)
• Complaint must be filed with OSHA within 30days of alleged adverse action (but CooperationAgreement between OSHA and NLRB).
• Remedies for Violation: Rehire, Reinstatementand Back Pay.
IEC CON 2015Oct. 21-24, 2015
Phillip B. Russell, Esq.October 22, 2015
How to Navigate Your Way through anOSHA Investigation 14
Hug Your Loved Ones
Backhoe operator’s hand slips; kills a laborer.- Was his grandson.
Safety director’s son falls to his death.- Was not wearing safety harness.
Operator flips roller.- Was not wearing his seat belt.
Laborer slides into unseen sinkhole.- Only warning sign was wet ground.
Worker cut in half by descending elevator.- It was not locked out.
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www.linkedin.com/in/philliprussellatty
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Christopher M. Caiaccio, Esq.191 Peachtree Street N.E., Suite 4800Atlanta, GA 30303P: (404) 870-1300C: (404) [email protected]
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