Legal Issues and Safety: Your Rights and Responsibilities June 16, 2011 9:00 a.m. - 11:30 a.m. Northwest State Communi

1. Anastasia K. Hanson, Esq. ahanson@snlaw.com Cheryl F. Wolff, Esq. cwolff@snlaw.com Legal Issues and Safety: Your Rights and Responsibilities June 16, 2011 9:00 a.m. - 11:30 a.m. Northwest State Community College Voinovich Auditorium (E Building, West end of campus) Susan B. Nelson, Esq. OSHA – Rights & Responsibilities snelson@snlaw.com Presented on behalf of: 22600 State Route 34, Archbold, OH 43502

2. Susan B. Nelson, Esq. Employer Guide to OSHA Inspections and Citations

3. Scope of Presentation We will offer perspective and guidance on a number of topics, including: • The “A, B, C’s” of OSHA • How to minimize the risk of a citation • What triggers an OSHA inspection • What to say to the OSHA inspector • The top 10 most frequently cited OSHA standards • What is on the horizon for employers Presenter: Susan B. Nelson, Esq.

4. Development of Presentation We developed this presentation to provide the following: • Why Immediate Action Is Required • What Are Your Company’s Best Practices • Why Understanding the Process is Critical • Update on Regulatory Action Presenter: Susan B. Nelson, Esq.

5. US Department of Labor's OSHA cites WPM Construction Services forexposing workers to cave-in and traffic hazards at Toledo, Ohio, job site US Department of Labor Region 5 News Release: 11-612-CHI May 24, 2011 TOLEDO, Ohio — The U.S. Department of Labor's Occupational Safety and Health Administration has issued WPM Construction Services of Grand Blanc, Mich., one willful and two serious safety citations for failing to adequately protect employees from cave-in and traffic hazards while working on the Schneider Storage Basin Project in Toledo. The company faces penalties of $54,600 as a result of a February inspection. "Cave-ins are a leading cause of worker fatalities during excavations, and failing to take precautions to protect employees against such hazards is inviting tragedy on the job," said Jule Hovi, director of OSHA's Toledo Area Office. "Employers are responsible for following OSHA standards to protect workers." The willful citation is for allowing workers to install transition sleeves on a 24-inch water main in an excavation that was greater than 8 feet deep without being adequately protected from the potential for a cave-in. Inspectors also found employees working without cave-in protection at depths of 22 feet and adjacent to 32-foot basin walls where sloping angles had not been effectively maintained to prevent cave-in. A willful violation is one committed with intentional knowing or voluntary disregard for the law's requirements, or with plain indifference to worker safety and health. The serious citations include failing to require employees to wear head protection and warning vests while working in a trench along a roadway where they were exposed to traffic hazards. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. The inspection was conducted under OSHA's national emphasis program on trenching and excavation. OSHA standards mandate that all excavations 5 feet or deeper be protected against collapse. Detailed information on trenching and excavation hazards is available on the agency's website at http://www.osha.gov/SLTC/trenchingexcavation/index.html. The company has 15 business days from receipt of the citations to comply, request an informal conference with OSHA's area director, or contest the citations and penalties before the independent occupational Safety and Health Review Commission. Presenter: Susan B. Nelson, Esq.

6. OSHA is on the way. What do you do? 1 – Let them on to your property? 2 – Deny them access? 3 – Call your lawyer? Presenter: Susan B. Nelson, Esq.

7. OSHA Is At The Door –Inspection Procedures • Advance notification? • OSH Act prohibits giving employers advance notice, except as authorized by the Secretary of Labor/designee • Narrow exceptions: • Cases of imminent danger – to enable employer to correct the danger • When inspection can be most effectively conducted after regular business hours • To ensure presence of employer and employee representatives • In complex fatality investigation Presenter: Susan B. Nelson, Esq.

8. OSHA’s Entry Onto Premises • Upon arrival, OSHA official must: • present credentials and state reason for inquiry • locate the owner representative, operator or agent in charge • what if no management official is present? • advise employer that the OSH Act requires that an employee representative be given an opportunity to participate in the investigation if the employees are represented. (Resistance will be construed as a refusal to permit the inspection.) • You have the right to copy and verify • What to do next? • Let CO in? • Call attorney? • Considerations Presenter: Susan B. Nelson, Esq.

9. Interests of OSHA CO • OSHA Interests • Safe workplace • Mission of Occupational Safety and Health Act (“OSH Act”) • Preserve the evidence • Time Constraints • Media Presenter: Susan B. Nelson, Esq.

10. Interests of Employer • Employer’s Interests • Ramifications of Workplace injury or hazardous condition • Potential for litigation • A lawsuit brought by DOL • A lawsuit brought by injured worker(s) • Media • Minimize disruption in workplace Presenter: Susan B. Nelson, Esq.

11. Scope of OSHA’s Visit • OSHA’s viewpoint • Comprehensive • Substantially complete and thorough investigation of all potentially hazardous areas of the establishment • Partial • Limited to certain potentially hazardous areas, operations or practices • Who decides areas to which OSHA can have access? • KEY → an agreement must be reached as to the scope of OSHA’s visit Presenter: Susan B. Nelson, Esq.

12. Decisions To Be Made • Scope of OSHA’s visit • Is it appropriate to ask OSHA what the scope of the investigation will be? • Why do you want to limit scope? • Can you limit the scope of the investigation? Permitted access to machine and/or location where the injury occurred What about OSHA’s right to inspect other similar machines? Keep in mind: Exposure to citations for anything that the Inspector observes because the Company voluntarily allowed a broad inspection to occur. Presenter: Susan B. Nelson, Esq.

13. Decisions To Be Made (CONTINUED) Can employer refuse to permit access? • OSH Act provide CSHOs may enter without delay and at reasonable times any establishment covered by the Act for the purpose of conducting the inspection • If employer refuses entry, the CSHO must leave the premises and immediately report refusal to Area Director who then notifies the Regional Solicitor’s Office. Can you require OSHA to obtain a warrant to inspect the premises? Presenter: Susan B. Nelson, Esq.

14. OSHA Conferences: Opening and Closing • There are two important conferences that the CO is obligated to conduct • Opening Conference • A meeting upon arrival of the CO where he or she explains the purpose of the visit and the intended scope • You are entitled to have legal counsel present • Closing Conference • The CO will informally advise employer of the apparent health or safety violations uncovered by inspection • Employer can provide “relevant” information to CO Presenter: Susan B. Nelson, Esq.

15. Opening Conference • The CO will make this brief so that he can quickly proceed to the walkaround • The CO should inform employer and any employee representative(s) of their rights during the inspection • Right to object to joint opening conference • CO must inform participants that a video camera and/or audio recording many be used • CO will advise as to immediate abatement steps • Paperwork: The CO may request a copy of the written certification that a hazard assessment has been performed by the employer • CO should request to speak to the person who signed that certification about any potential onsite exposure and select appropriate PPE Presenter: Susan B. Nelson, Esq.

16. Opening Conference(CONTINUED) • Recordkeeping: The “Four Business Hour” Rule: Employer to provide requested records, e.g. injury and illness records, within four business hours • Duration of opening conference dictated by CO • Recordkeeping: CO shall request a list of the chemicals on site • Right to Deny Right of Accompaniment to any person whose conduct interferes with a full and orderly inspection • Recordkeeping: CO will request and review the employer’s injury and illness records for 3 prior calendar years • OSHA – 300 Logs, the total hours worked and the average number of employees for each year, and a rooster of current employees (found in OSHA-300A) • CO can also request the OSHA-301 or equivalent form • If record-keeping is inadequate or record-keeping deficiencies are suspected, OSHA has ability to perform a comprehensive records review • CO will likely request records for other OSHA programs including hazard communications; LOTO; emergency evacuation; and PPE Presenter: Susan B. Nelson, Esq.

17. Recordkeeping Requirements Under OSHA • Purpose of Recordkeeping Requirements • Injury/Illness/Fatality Records and Reporting A. Reporting • Oral Report to the nearest regional director of OSHA within 8 hours of a fatality or an accident resulting in an in-patient hospitalization of 3 or more employees • 300 Log – Record each fatality, injury and illness that: • (1) Is work related; (2) Is a new case; (3) Meets 1 or more of the general recording criteria of §1904.7(death, days away from work, restriction on activities or transfer, medical treatment beyond first aid or illness, loss of consciousness or injury diagnosed by a physician) Presenter: Susan B. Nelson, Esq.

18. Recordkeeping Requirements Under OSHA(CONTINUED) C. 301 Supplemental Report • In-depth Form OSHA 301 for each incident that is recordable on the OSHA 301 log D. Annual Summary • Review the 300 log for completeness and accuracy, and to correct any deficiencies, create a summary, certify the summary, and then post the summary 3. Special Recording Requirements A. Needles and Other Sharp Objects B. Hearing loss C. Tuberculosis D. Musculoskeletal Disorders Presenter: Susan B. Nelson, Esq.

19. Recordkeeping Requirements Under OSHA(CONTINUED) 4. Hazard Communication A. MSDS B. Training C. Labeling D. Employee Access E. Exchange of Data F. Trade Secrets G. Access to Records H. Record Retention Presenter: Susan B. Nelson, Esq.

20. Rights of Employees During OSHA Inspection Employee can be informed: • Can have one-on-one interviews with CO – completely voluntary - can have person of their choosing present during interview, including legal counsel • Can refuse to be interviewed by CO – do not need to give a reason • Can refuse to sign a statement, be tape recorded or be photographed • Should answer all questions truthfully – do not speculate • No retaliation if participating in OSHA interview Presenter: Susan B. Nelson, Esq.

21. The Informant Privilege • The government can withhold the identity of individual who provide information about the violations of laws, including OSHA rules and regulations • CO will inform informant that statement is confidential Presenter: Susan B. Nelson, Esq.

22. Walkaround Inspection • This is the inspection itself • Purpose: Identify potential safety and/or health hazards in the workplace • You are entitled to accompany OSHA CO • Why you should accompany the CO • Employees of established plant safety committee or employees at large may designate an employee representative • The CO may: • privately question employer, owner, agent, or non-managerial employees • When? CO’s are authorized to conduct interviews during regular working hours and at other reasonable times at the establishment or at a different location • Require attendance and testimony of witnesses and production of evidence under oath Presenter: Susan B. Nelson, Esq.

23. Walkaround Inspection(CONTINUED) • The OSHA Official must: • wear and use protective clothing or equipment • comply with the health and safety regulations of the establishment • take reasonable precautions to ensure the taking of photos or samples is not hazardous • avoid unreasonable disruption to the operations of the establishment Presenter: Susan B. Nelson, Esq.

24. OSHA Conferences: Closing Conference • Closing Conference • What the CO must do: • Discuss with the employer all unsafe or unhealthy conditions observed during the inspection • Indicate all apparent violations which the investigator may issue or recommend a citation and proposed penalty • Afford the employer the opportunity to bring to the attention of the investigation officer any pertinent information regarding the condition of the workplace • Encourage the employer to request an informal conference with the Area Director • Explain penalties must be paid within 15 working days after employer receives citation. Presenter: Susan B. Nelson, Esq.

25. OSHA Conferences: Closing Conference(CONTINUED) • Closing Conference • What the employer should do: • Be prepared to support a defense based on “preventable employee misconduct” • The defense requires the employer to demonstrate an effective, documented and published safety program that has been consistently enforced by the employer Presenter: Susan B. Nelson, Esq.

26. The Citation and Notification of Penalties Arrives: What next? 1 – Leave it on the far corner of your desk. 2 – Respond yourself. 3 – Carefully review and consult your lawyer. Presenter: Susan B. Nelson, Esq.

27. The Citation and Notification of Penalties • The citation informs of the alleged violation, sets a proposed time period in which to correct the violation, and proposes the appropriate penalty amount • The citation must: • Be in writing • State with particularity the nature of the violation • Be reasonably prompt Presenter: Susan B. Nelson, Esq.

28. Right to Contest • A Notice of Intent to Contest the citation, penalty, or abatement date must be made within 15 working days of receipt of the citation • Contesting the citation in good faith means OSHA will suspend the abatement and payment of penalties for the contested items until a final order is issued Presenter: Susan B. Nelson, Esq.

29. Abatement Obligations • Abatement is the correction of the safety or health hazard/violation that led to an OSHA citation • Citation must fix reasonable time for abatement • How to abate: • Fix the hazard • Certify that you've fixed the hazard • Notify your employees and their representatives that you have fixed the hazard • Send document(s) to OSHA saying that you have abated the hazard • Tag any cited movable equipment with a warning tag or a copy of the citation • Guide for abatement available at: http://www.osha.gov/Publications/Abate/abate.html Presenter: Susan B. Nelson, Esq.

30. Informal Conference • Before deciding whether to file a Notice of Contest, you may request an Informal Conference within 15 working days from receipt of the citation • Informal Conferences will not be held once a notice of contest is filed • Any of the following may be accomplished: • Obtain a better explanation for the violations cited • Obtain a more complete understanding of the specific standards that apply • Discuss ways to correct violations • Discuss problems concerning the abatement dates • Discuss problems concerning employee safety practices • Resolve disputed violations • Obtain answers to any other questions you may have Presenter: Susan B. Nelson, Esq.

31. OSHA Complaint • Secretary of Labor must file a complaint no later than 20 days after receiving notice of contest • However, failure to file does not lead to dismissal absent a showing of prejudice to employer’s ability to present a defense • The complaint should set forth: • Violations and proposed penalties • Statement of jurisdiction • Specifics regarding violations • Considerations upon which period for abatement and proposed penalties are based Presenter: Susan B. Nelson, Esq.

32. Affirmative Defenses There are four recognized defenses and all are construed narrowly by the courts • Unpreventable or unforeseeable • Employee misconduct (Discussed above) • Greater hazard • Employer must show the hazards of compliance are greater than the hazards of non-compliance • Excluded where the employer neither sought a variance nor showed that application would be futile or inappropriate Presenter: Susan B. Nelson, Esq.

33. Affirmative Defenses(CONTINUED) • Impossibility - Employer must show that compliance with the regulation is impossible or unreasonable - Compliance with literal requirements would have precluded work AND employer used alternative means of protection OR alternative means were unavailable. 4. Economic unfeasibility - This defense is similar to impossibility but instead alleges that economic reasons dictate not following the regulation - May look to the custom and practice of the industry Presenter: Susan B. Nelson, Esq.

34. Mandatory Settlement Proceedings • Settlement proceedings are encouraged by the Review Commission • In some cases settlement proceedings are mandatory • For contested cases with fines over $100,000 (29 C.F.R. § 2200.120) • These proceedings must be attended by an official with the authority to settle • Any information shared is confidential and not to be used for outside purposes unless agreed upon by the parties • Discovery occurs before the settlement proceeding so that each party may be fully informed Presenter: Susan B. Nelson, Esq.

35. Discovery • Governed by the Occupational Health and Safety Review Commission’s Rules of Procedure. Rules address: • Pre-hearing procedures • Pre-hearing conferences • Requests for admission • Interrogatories • Subpoenas • Discovery must be completed at least 7 days before the hearing • May not discover privileged information, but may discover any relevant information, or information likely to lead to relevant information Presenter: Susan B. Nelson, Esq.

36. Simplified Proceedings • These are streamlined proceedings that have the advantage of being less costly, less time consuming, and less formal • These proceedings are still a trial • The Chief Judge assigns cases for simplified proceedings, but if your case is not selected you may request that it be chosen • Eligible cases: • Relatively simple issues of law or fact with relatively few citation items, • Total proposed penalty of not more than $30,000, • A hearing that is expected to take less than two days, or • A small employer whether appearing with or without an attorney. Presenter: Susan B. Nelson, Esq.

37. Hearing • The first hearing is an evidentiary hearing before the Administrative Law Judge • This hearing is open to the public • Hearing is governed by the Occupational Safety and Health Review Commission’s Rules of Procedure. Rules regarding: • Paying of witness fees and mileage, and pay of person taking deposition • Reporter’s fees • Transcripts of testimony • Power and duties of judge as well as judge’s disqualification and withdrawal • Examination and cross-examination of witnesses • Use and marking of exhibits • Applicability of Federal Rules of Evidence • Objections and Offers of Proof • Interlocutory review • Closings and filings of briefs Presenter: Susan B. Nelson, Esq.

38. Appeal? • There is no appeal as of right for OSHA decisions • If the employer disagrees with the decision, however, it may submit a petition for review to the Review Commission • It must be received by the judge on or before the 20th day after copies of the decision have been mailed • Must contain a concise statement of each portion of the order to which exception is taken • Cite to record • Discuss points and authority of law Presenter: Susan B. Nelson, Esq.

39. Appeal (CONTINUED) • The Secretary of Labor may then file an opposition to the review petition • If a review is granted, it will be limited to questions raised by the petition • The Review Commission is not bound by the Administrative Law Judge’s findings of fact • A review does not automatically stay the ALJ’s order • Must file a motion for stay • If the employer is still dissatisfied after the RC ruling, may obtain review in the Federal Circuit having jurisdiction Presenter: Susan B. Nelson, Esq.

40. Update on Regulatory Action • OSHA News Release: [05/26/2011]Contact Name: Diana Petterson or Jesse LawderPhone Number: (202) 693-1898 or x4659Release Number: 11-0749-NAT • US Labor Department’s OSHA announces final rule to reduce employer burdens by removing outdated requirements, streamlining and simplifying standards • WASHINGTON — The U.S. Department of Labor's Occupational Safety and Health Administration today announced the forthcoming release of a final rule that streamlines and simplifies standards while reducing employer burdens. The rule, which soon will be published in the Federal Register, will help keep OSHA standards up-to-date and better enable employers to comply with their regulatory obligations. Presenter: Susan B. Nelson, Esq.

41. Update on Regulatory Action(CONTINUED) • News Release • OSHA News Release: [05/26/2011]Contact Name: Scott Allen or Rhonda BurkePhone Number: (312) 353-6976 or x4807Release Number: 11-0768-CHI • Administrative law judge upholds OSHA citation issued to Peoria, Ill.-based Caterpillar Logistics Services • Affirms musculoskeletal disorder should be recorded on OSHA 300 Injury and Illness Log • PEORIA, Ill. — An administrative law judge with the Occupational Safety and Health Review Commission in Denver, Colo., has affirmed an other-than-serious safety citation issued to Peoria-based Caterpillar Logistics Services by the U.S. Department of Labor's Occupational Safety and Health Administration in June 2009. The company was cited for failing to record a worker's musculoskeletal disorder on the company's OSHA 300 log and assessed a proposed penalty of $900. Presenter: Susan B. Nelson, Esq.

42. Update on Regulatory Action(CONTINUED) • OSHA National Survey on Employer Safety and Health Practices • On Monday, the Occupational Safety and Health Administration launched a survey of private sector employers as a tool toward better designing future rules, compliance assistance and outreach efforts. As many as 19,000 employers of all sizes and across all industries are receiving the Baseline Survey of Safety and Health Practices. Questions include whether respondents already have a safety management system, whether they perform annual inspections, who manages safety at their establishments and what kinds of hazards they encounter at their facilities. Participation in the survey is voluntary. The agency expects data collection to be completed by August. Presenter: Susan B. Nelson, Esq.

43. Severe Violator Enforcement Program (SVEP) New Program began in June 2010 • The SVEP directive became effective on June 28, 2010 • Under the SVEP, the criteria was changed to better focus enforcement efforts on significant hazards by concentrating inspection resources on employers who have demonstrated recalcitrant or indifference to their OSH Act obligations by committing willful, repeated, or failure to abate violations for 1 or more of the following circumstances: • Fatality or catastrophe situation • in industry operations or processes that expose employees to the most severe occupational hazards and those identified as ”high-emphasis Hazards” • Exposure to hazards (related to the potential release of a high hazardous chemical); or • All egregious enforcement actions. Presenter: Susan B. Nelson, Esq.

44. Severe Violator Enforcement Program (SVEP)(CONTINUED) • The SVEP also created a nationwide referral procedure in which OSHA may inspect related worksites/workplaces of a SVEP employer of OSHA identifies an broader pattern of non-compliance. • The High Emphasis Hazards include fall hazards and specific hazards identified from the following selected National Emphasis Programs: • Amputations; • Combustible dust; • Crystalline silica; • Excavation/trenching; • Lead; and • Shipbuilding. Presenter: Susan B. Nelson, Esq.

45. “OSHA’S Top 10”(most frequently cited standards) OSHA publishes this list to alert employers about these common hazards and encourages employers to fix these recognized hazards that are addressed in these and other standards … before OSHA shows up. 1. 1926.451 - Scaffolding 2. 1926.501 - Fall Protection 3. 1910.1200 - Hazard Communication 4. 1910.134 - Respiratory Protection 5. 1926.1053 - Ladders 6. 1910.147 - Lockout/Tagout 7. 1919.305 - Electrical, Wiring Methods 8. 1910.178 - Powered Industrial Trucks 9. 1910.303 - Electrical General Requirements 10. 1910.212 - Machine Guarding Presenter: Susan B. Nelson, Esq.