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Knowledge is power

World Coal,

Henry Chajet.

If you are an employer, most government inspectors and investigators are not your friends. The Department of Labor’s OSHA, MSHA and their compliance officers, whistleblower investigators, and ‘special investigators’ can be friendly, helpful people, doing their job professionally, but company personnel must understand that they are looking for violations to fine, workplaces to change and evidence for use by their lawyers and Justice Department prosecutors, sometimes against company personnel individually, in addition to the company.

When DOL focuses on your worksite or on you, they are motivated by enforcement of dozens of laws and thousands of regulations. Moreover, it is called the Department of Labor for a reason. The sooner employer representatives understand their duties, agency procedures, authority, and their personal and company rights, the less likely they are to be adversely impacted by agency actions.

Every week, the press reports DOL fines in the hundreds of thousands of dollars, alleged violations demanding costly abatement, investigations of dozens of accidents and whistle blower complaints. Moreover, the ‘plaintiff’s lawyers’ are always ready to use the evidence identified and collected by DOL/MSHA/OSHA to support claims and lawsuits.

Knowledge is the power that can best protect you from adverse impacts. The following are some basic lessons about investigations from one of the most experienced and largest DOL/OSHA/MSHA defence teams in the US.

  • Establish a single point of contact on worksites and in corporate management for coordinating agency visits, inspections, investigations, calls and inquiry letters. Train the response leader on company policies and legal rights regarding requests for physical evidence, demonstrations, documents and interviews. Many enforcement actions are made worse by uninformed responses to agency personnel.
  • Have Counsel appoint the company coordinator/contact person, Counsel’s Investigator, charged with keeping track of a privileged and confidential company investigation, and with seeking help and counsel.
  • If you speak to the government, only tell the truth. Most OSHA/MSHA/safety law criminal prosecutions result from lying, falsifying or destroying documents, or conspiring to cover up safety violations. DON’T. These actions carry five-year felony incarceration risks, and massive dollar criminal fines, far greater than the safety violation itself.
  • Understand and use your constitutional freedom of speech rights, including the right not to speak, whenever the situation merits. DOL investigators are trained to ask: How long has the violation been there? When did you first see it? Why didn’t you fix it? All intended to increase enforcement levels and fault/negligence allegations. Great answers are: “I’d rather not talk about it”; “We’ll take care of it right away”.
  • An individual’s freedom of speech rights (and freedom not to speak) includes the right to set the terms for any voluntary discussions with MSHA or OSHA. Demands for private interviews and “AUTHORITY” to conduct them, do not ‘trump’ an individual’s constitutional rights.
  • Understand and respect MSHA’s ‘warrantless’ site entry inspection authority. OSHA and almost all other similar agencies do not have warrantless entry authority. For OSHA, site access is dependent on a search warrant or employers waiving search warrants (by agreement to the inspection).
  • Voluntary entry inspection agreements under OSHA can impose negotiated conditions (e.g. route and time limitations, but whatever can be seen can be cited). Note that both the employer (and employees’ representative) have the right to accompany MSHA and OSHA, and employers should always ask for time to make their representative available for the inspection.
  • MSHA does not have subpoena power, so when it wants to enforce its records requests, it issues (or threatens) citation and orders for ‘interfering with an inspection.’ Generally, such orders cannot shut down any part of the operation and only set the stage for judicial review of the validity of MSHA’s demand and the penalty. Provide all records to MSHA immediately that are required to be created by the regulations (e.g. work area and mobile equipment inspections), but seek corporate approval for release of all other records requested and negotiate the extent of the requested records.
  • OSHA has subpoena power and can issue or seek to enforce administrative (agency) warrants, but employers have the right to seek judicial review of the subpoenas and warrants, to narrow their scope and/or protect employer and personal rights.
  • Employers and their agents have the right to consult with counsel or anyone they choose, before responding to OSHA or MSHA, or to interview or document requests. The company has the right to legal representation and consultation. Undue delay, however, should be avoided.
  • Violations labelled ‘willful’ or ‘repeat’ by OSHA or ‘reckless disregard’ or ‘unwarrantable’ by MSHA, create the greatest enforcement risks. They carry the highest penalty potentials and often result from a company ‘agent’ – supervisor, foreman, project manager, plant manager – answering leading questions, such as: “Did you know about it?” and “How long was it there?” Train your supervisors on duties and rights.
  • Identify and preserve required records, and those related to any event that MSHA or OSHA may be interested in, and institute a ‘document hold’ for any adverse incidents that might result in litigation. Know in advance what records agencies will likely ask for, how you will respond to their requests and understand whether you have protected against recorded hazards.
  • Documents can be evidence of ‘willful’ violations, yet many documents are required to be created and maintained by law and regulations. Others are voluntarily created by the company and have confidentiality and/or trade secret expectations associated with them that require protection.
  • All documents, reports, records and emails should be drafted carefully, reviewed before sending, and followed up on, with an awareness and understanding of their potential use by adverse parties. In addition, companies should adopt and follow routine document preservation and disposal policies.
  • Conduct occasional document and record keeping mini-audits, under the direction of counsel, anticipating litigation, to support legal advice on corrective actions and litigation strategy. While company personnel should work with counsel to seek to establish and justify audit confidentiality and privilege claims, such claims are never a guarantee that documents will not be subject to third party discovery, rendering their content and follow-up corrections far more important than the privilege claims.
  • Teach supervisory personnel how to successfully talk to, and deal with OSHA and MSHA to minimise risks. Professional discussions with agency personnel, along with respectful exercise of employer and individual rights, including disagreement with an inspector’s opinions, are critical in seeking to prevent the issuance of enforcement actions at the earliest stage of an MSHA/OSHA inspection or investigation.
  • Understand, create, train in, implement, document and, when needed, explain “mitigating circumstances” to MSHA and OSHA. Training in company safety rules and enforcing rules with counselling and discipline, demonstrate that the employer should be able to rely on preventive programmes, and employee obligations to comply, creating an OSHA defence and reducing MSHA allegations of ‘fault’ or negligence.
  • Learn the agency’s emphasis programmes (e.g. fall protection and silica dust), their most recently announced enforcement focus (MSHA rules to live by), the most common citations issued to your site and create simple methods of relaying prevention programmes to your workforce.
  • Use informal settlement opportunities to achieve amicable, acceptable results, but challenge citations and penalties that are inappropriate or incorrect to prevent an ever growing number of enforcement actions aimed at companies that do not “push back,” and merely pay the fines, increasing their violation history to support higher penalties in the future.

Edited by Jonathan Rowland. This article first appeared in the July issue of World Cement.

About the author: Henry Chajet co-chairs the 30 person crisis management and safety and health law practice in the Washington DC region for Jackson Lewis.

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