Doing the Right Thing Without Creating Liability

1. Doing the Right Thing Without Creating Liability

2. presented by: Thomas Benjamin “Ben” Huggett Littler Mendelson, P.C.

3. WHY SAFETY COMPLIANCE? • Corporations have legal and moral obligations to ensure compliance and to protect the health of their workers • Corporations need a mechanism to monitor, evaluate and accomplish compliance • Nationwide corporations with centralized safety departments cannot claim ignorance to significant local issues • OSHA violations and citations can impact business

4. Potential Ethical Misconduct • Failure to protect confidential data • Fabrication of data • Criticize the ability/integrity of colleague for own gain • Holding back or disguising data • Design of sampling strategy to favor a specific outcome • Destruction of data that contradicts desired outcome • Deliberately not reporting an incident

5. Reasons for Misbehavior • Increased pressure on consultants rather than in-house staff • Increased pressure to win contracts, causing OHS issues to fall by the wayside • Lack of legal standards thus leaving hygienists to argue about the “rightness of doing something” rather than an argument based on compliance • Working on a contingency basis • Decrease in job security dampening outspokenness.

6. DO NOT LIE

7. 18 U.S.C. § 1001 • Making false statements is the common name for knowingly and willfully making false or fraudulent statements, or concealing information, in "any matter within the jurisdiction" of the federal government of the United States, even by mere denial. • Jail time • $250,000 fine

8. Occupational Safety & Health Act of 1970 • 29 U.S.C. § 657(g) Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this Act shall, upon conviction, be punished by: • a fine of not more than $10,000 • imprisonment for not more than six months

9. Goals of Audits and Accident Investigation • Prevent Reoccurrence • determine facts • identify equipment deficiencies • identify procedural deficiencies • identify operator/employee deficiencies in training or procedure • identify causative facts • identify compliance issues • identify appropriate remedial actions

10. What Makes Audits and Accident Investigation Reports Legally Significant • In each injury or fatality case an audit or accident investigation report could affect liability for: • OSHA violations • Civil tort or Workers’ Compensation • Criminal actions (fatalities)

11. Potential Problems with Audit and Accident Investigation Reports • Report may be discoverable • Speculation as to cause • 20/20 hindsight • Identifying too many or too few issues • Identification of irreconcilable issues • Erroneous conclusions of law regarding negligence or compliance

12. Potential Problems with Audit and Accident Investigation Reports • Improper allocation of responsibility • Improper remedial measures • Establishing elements of Adverse Claims • negligence • causation • Potential claims arising from investigation • Defamation • False imprisonment • Intentional infliction of emotional distress • Negligent investigation • Retaliation

13. Potential Problems with Audit and Accident Investigation Reports • Recognition of Hazards • general duty clause • Permanent Documentation to be used by others • private civil litigation • public civil or criminal litigation • Creating Parent/Subsidiary Liability • Role of investigation in “knowledge” across subsidiaries

14. Privileges Protecting Audits and Accident Investigation Reports • Attorney-client privilege • for purposes of receiving legal advice • Work product doctrine • in anticipation of litigation • Self-critical analysis • very limited acceptance • OSHA Self-Audit Policy • inapplicable post-accident

15. Steps to Minimize Discovery of Audit and Accident Investigation Reports • Determine applicability of privilege(s) • Select appropriate investigation team • Consider attorney involvement • Prepare investigation protocol • Retention/destruction of team notes • Dissemination of investigation report • Close out documentation

16. Best Practices for Audit and Accident Reports • Do it properly • begin promptly • Be thorough • no hard rules, get the facts in the most effective and reliable way possible • details count • Keep an open mind • never assume you know what happened until every witness and every document has been reviewed

17. Best Practice Audit and Accident Follow-Up • Discussed orally before writing report and then reviewed by all disciplines • Drafts and deliberations covered by attorney-client and work product privilege • Final report likely discoverable • Accurate and carefully considered reports are important to prevent reoccurrence of accidents

18. Closing the Report • Analyze results of the investigation • gather and summarize evidence • evaluate credibility • talk through the case with the team • answer any unanswered questions or explain why they cannot be answered • determine what recommendations are being considered • if employee discipline is being considered, review issues and defensibility

19. Closing the Report Out • Document the results of the audit or investigation • Documentation is evidence and affects the scope of any litigation • Keep incident files current with wrap-up information on the investigation and subsequent activity • Reasonable timeliness is acceptable • interim protections must be in place • correction actions must be verified • The worst case scenario is a conclusion that is not remedied or acted upon to eliminate the safety hazard

20. MISCELLANEOUS ISSUES • Confidentiality of employee records and information • medical records • Required/desirable warnings to company witness • self-incrimination

22. Thank You Thomas Benjamin Huggett Littler Mendelson, P.C. 1601 Cherry Street, Suite 1400 Philadelphia, PA 19102-1321 (267) 402-3035 tbhuggett@littler.com