OSHA Is Only the Appetizer

 An OSHA Inspection and citations often create the smallest liability associated with a workplace death, serious injury or major accident, but the facts and citations arising from that process will influence subsequent civil and criminal actions.
I spoke a number of times this week to a very good CHRM audience on both Safety and HR topics, including “Criminal and Civil Liability Associated With Workplace Safety.” This topic always gets a good reception if for no other reason than managers and safety/HR professionals want to be darned sure that their actions or negligence don’t put them in the big house with a hulking tattooed felon, who is a member of the lonely hearts club. (Note to readers… watch Shawshank Redemption).
Individual Exposure
Work within the scope of your job duties as a manager or safety/HR professional and it is unlikely that you will ever be found individually liable. No one can guarantee that you won’t be named as a defendant, but your employer will usually defend you, and frankly, don’t lay awake worrying about this issue.  Other more probable problems await your waking and sleeping hours.

However, the fact that it is statistically unlikely that you will be individually named as a defendant and even less likely that you will be found liable, does not mean that you should be oblivious to areas of exposure as you handle safety-related duties or respond to a serious injury, death or catastrophe.

Corporate Exposure

You, the individual, are not likely to be the deep pocket, and you may be a less attractive target than your employer, except when you are viewed by a plaintiff attorney as a back door to go after your employer.

Employers on the other hand are attractive targets even if the plaintiff is unlikely to prevail. Plaintiff counsel may have delusions of grandeur, hope for a nuisance settlement, or sue everyone in the hopes that something will work out. Counsel may sue the employer in order to conduct discovery to learn of other more attractive defendants. In a catastrophic situation, plaintiff counsel may sue your employer just to get their name out there in the hopes of attracting other plaintiffs.
Also, as we will discuss later, an employer is usually protected to a large extent by the “exclusive remedy” principle that holds that an employee’s sole remedy for a workplace injury is the limited damages available under the workers compensation process, except in the case of near intentional bad conduct as defined by that state’s law. That does not mean that injured employees or their families will not try to make this challenge; even though it is often blocked at the motion stage. Likewise, other parties, such as the manufacturer of fire suppression systems involved, or other involved product manufacturers, may try to third-party in the employer.
Add to this stew the fact that on a construction site, accidents and safety challenges often translate to delays and penalties, arbitration or litigation. Likewise, safety may be seized upon in any setting as a way to shift exposure to another party when a deal isn’t going well. Moreover, anytime another company’s employee or a member of the public is affected, the variety of claims and exposure go waaaay up.
Perhaps even more importantly to you, the reader, plaintiffs will try to use OSHA citations and the facts developed in a OSHA inspection as compelling evidence in a later civil or criminal action. There are ways to seek to block all or some of these materials being used, but you should always realize that the OSHA/accident inspection may just be the appetizer to a much larger meal….
Finally, numerous areas of Federal and State criminal provisions can be involved with a catastrophe or other serious safety-related events. Want an example? Follow BP. Consider EPA criminal claims. The EPA has a much more muscular criminal division and claims than OSHA can even dream of. And lots more experience challenging your work product and privilege claims. Recent foundry criminal sentences have involved environmental convictions as the foundation, with obstruction and other OSHA-generated claims then added to bulk up the sentence.
Your greatest criminal exposure from safety-related events may be state and federal claims of obstruction, false statements, conspiracy, mail/wire fraud, etc. Most employers would never consciously commit such offenses, but could you inadvertently create an appearance of such behavior in the context of a chaotic combustible dust explosion or crane collapse?
Here are a few recent headlines to illustrate areas of concern. More explanation later….

Fracking Worker Lawsuit Set for March Trial If Exposure Claims Not Settled in Mediation

A contract gas worker’s federal lawsuit against an energy company and an employment staffing service for chemical exposure during hydraulic fracturing will go to trial March 4 if the parties do not reach an agreement during a court-ordered…

Deliberate Intent Exception – West Virginia workers’ compensation law features an exception to employer immunity for instances of deliberate intent.
The complaint alleges that despite “the unsafe working conditions at the drilling locations, defendants’ knowledge of such unsafe working conditions, and violation of various state and federal regulations, and/or commonly accepted and well-known safety standards in its industry or business, defendants intentionally exposed the employee to those unsafe working conditions.”
Employee Fails to Show Employer Negligence Under Florida’s ‘Virtually Certain’ Standard

An employee was unable to prove that his employer’s negligence caused him to lose most of a hand in an industrial accident because the danger posed by the machine upon which he worked should have been apparent, a Florida state appeals court…

Pipe Maker, Managers Ask Supreme Court To Review Convictions in Forklift Fatality Case

A New Jersey pipe manufacturing company and three of its managers have asked the U.S. Supreme Court to review a federal appeals court decision affirming their criminal convictions for violations of worker safety laws and environmental standards… The company and its managers also were charged with a broad conspiracy to violate the Clean Water Act and the Clean Air Act and to defraud OSHA and the Environmental Protection Agency, to make false statements, and to obstruct an OSHA proceeding.

NEW YORK—A Rochester contractor has been sentenced to six years in prison for his conviction on charges of violating Clean Air Act asbestos work standards and making false statements to an Occupational Safety and Health Administration inspector …. Smith ordered his company’s salvage workers to tear out copper pipes, ceiling tiles, and scrap metal from the west wing of the hospital complex….
The workers, prosecutors said, had little education or English comprehension. Some had no training in asbestos removal and did not know they were being exposed to asbestos while removing the copper pipes, prosecutors charged.
Prosecutors said evidence at sentencing showed that when workers questioned Smith, he lied and told them the areas did not contain asbestos. He also lied to an OSHA inspector investigating allegations of illegal asbestos removal at the site in September and October 2007.

BNA Special Report – Asbestos Litigation Enters Sixth Decade With New Approaches to Old Problems
As asbestos litigation enters its sixth decade, plaintiffs’ attorneys continue to find new ways to frame their lawsuits, new parties to sue, and new exposure victims to represent….
Three theories show up regularly in current asbestos litigation: The “every breath” theory of causation, take-home exposure, and “bare metals” claims. Another theory, apparent manufacturer doctrine, has been raised in a few jurisdictions, and could be the next frontier of asbestos litigation. …. “The endless search for a solvent bystander” forces plaintiffs to get more and more creative.

Whistleblowers – Ruling Against AT&T on Disciplinary Policy On Injuries Seen Yielding More Complaints

A ruling that the AT&T Inc. disciplinary policy for service technicians violated federal and Michigan prohibitions against punishing workers who report injuries is expected to open the door for others to file complaints ….

Some Claims in BP Fraud Class Action Over Deepwater Horizon Project May Proceed

Some claims by investors in a securities fraud class action against BP plc and its former executives are allowed to proceed by the U.S. District Court for the Southern District of Texas in litigation over alleged misrepresentations made about…

Occidental Chemical Liable for Negligent Design of Device in Facility It Once Owned

Occidental Chemical Corp. is liable for the negligent design of a device that partially blinded a worker at a facility that the company no longer owned or operated at the time of the accident, a Texas appeals court ruled Feb. 14 ….
(As word of thanks,… most of the headlines are from recent BNA publications. I strongly recommend their employment, labor and safety reports).

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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