American Bar Association Forum on the Construction Industry

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6. 6 MANAGING THE OSHA INSPECTION PROCESS Report fatality or three hospitalizations to OSHA Six-month statute of limitations OSHA access to jobsite Plain View doctrine Consent to Inspection Opening Conference

7. 7 THE “WALKAROUND” Right to accompany Compliance Officers OSHA photographs and videotapes Preserving the physical evidence Testing physical evidence May OSHA shut down a jobsite?

8. 8 OSHA “DISCOVERY” Requests for document and other evidence OSHA interviews of non-supervisory employees OSHA interviews of supervisory employees Imputation of knowledge Admissions Recordings and statements

9. 9 EMPLOYER’S OBLIGATIONS UNDER OSHA OSHA Standards General Duty Clause Criminal Liability

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11. 11 POST-INSPECTION PROCEDURES Closing conference Issuance of citations Other than serious Serious Willful Repeat Abatement

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13. 13 EVALUATING CITATIONS Violation of an OSHA standard Violation of the General Duty Clause Defenses Unpreventable Employee Misconduct Infeasibility

14. 14 DEFENSES Greater Hazard Statute of Limitations Vindictive Prosecution Multi-Employer

15. 15 INFORMAL CONFERENCE Options upon receipt of citation Timing of informal conference Withdrawal of citation items Changes in classification of items Reduction of proposed penalties

16. 16 INFORMAL CONFERENCE (cont'd) Extension of abatement dates Changes in factual specification Collateral promises Robust non-admissions clause Informal Settlement Agreement Notice of Contest

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18. 18 LITIGATION OF OSHA CITATIONS Role of OSH Review Commission Role of Solicitor of Labor Pleadings Discovery Evidentiary hearing Simplified proceedings Review and appeals

19. 19 DECISION TO LITIGATE Amount of proposed penalties Effect on ongoing operations Potential for repeat violations Impact on future work opportunities

20. 20 DECISION TO LITIGATE (cont'd) Potential for civil and criminal actions Time, expense and burden of litigation Ongoing relationship with OSHA

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22. 22 STATE PLANS OSHA Act of 1970 Federal vs. state authority Compromise solution States may enforce workplace safety rules Demonstrate “at least as effective” as OSHA federal

23. 23 PROCESS FOR APPROVAL Need approval by U.S. Secretary of Labor Application by state for approval Period of joint federal/state jurisdiction Rejection or approval of state plan State may voluntarily withdraw its approved plan

24. 24 STATE PLAN STATES 22 States and Territories with full plans: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming 4 States cover public employees only: Connecticut, New Jersey, New York, and Virgin Islands

25. 25 ARE STATE PLANS SIMILAR TO  FEDERAL OSHA? Federal OSHA establishes a floor State plans may exceed Federal OSHA requirements Most frequently, states adopt CFR standards

26. 26 EXAMPLE OF HIGHER STANDARDS Jurisdictional (public employers) Boiler standards Elevator standards State specific statutes AWAIR Permissible Exposure Limits Employee Right-to-Know Safety Committees

27. 27 EXAMPLE OF LOWER STANDARDS IN STATE PLANS No “general duty” clause required in state plans Fine reduction programs

28. 28 MINNESOTA’S STATE PLAN AS AN EXAMPLE Background MnOSHA (1973) Final federal approval (1985) Minnesota Department of Labor (DLI) continues to enforce/administer Minnesota’s state plan

29. 29 KEY DIFFERENCES (PROCESS) Similar inspection/investigation process unannounced announced “Red Tag” authority to shut down job site Federal OSHA cannot shut down a job site without a federal court order Broader criminal penalties Minnesota House File 16 Bill