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Labor and Employment Law Series: When OSHA (or the NYSDOL) Comes
Knocking
September 13, 2012Presentation By:Thomas A. DeSimon, Esq.
Co-Chair: Government Compliance & [email protected]
99 Garnsey RoadPittsford, New York 14534
(585) 419-8609
www.harrisbeach.com
Thomas A. DeSimon, Esq.(585) 419-8609© Harris Beach PLLC, 2012
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Occupational Safety and Health Act
History:
Occupational Safety and Health Administration (OSHA)Created in 1970Until 1970 no uniform/comprehensive provisions existed for protection against workplace safety and health hazardsCharged with enforcement of Occupational Safety and Health ActAct applies to all employers and employees in all 50 states, D.C. and P.R. and territories under federal government jurisdictionCoverage provided either directly by OSHA or through OSHA – approved state programs
Thomas A. DeSimon, Esq.(585) 419-8609© Harris Beach PLLC, 2012
Occupational Safety and Health Act
Covers industries such as: Manufacturing Construction Longshoring Agriculture Law Medicine Organized labor Private education Private Employers/Employees: covered by Occupational Safety and
Health Act OSHA: investigates/enforces violations of worker health and safety
standards
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Thomas A. DeSimon, Esq.(585) 419-8609© Harris Beach PLLC, 2012
Public Employee Safety and Health Act
Public Employers/Employees: covered by the Public Employee Safety and Health (PESH) Act
PESH Act: created the Public Employee Safety and Health Bureau
PESH Bureau: is a Bureau of the Division of Safety and Health (DOSH) which is one of three divisions of the Worker Protection Bureau of the New York State Department of LaborOversees workplace protection of public employees at the state and local levelEnforces all safety and health standards promulgated under the Occupational Safety and Health Act
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Thomas A. DeSimon, Esq.(585) 419-8609© Harris Beach PLLC, 2012
PESH BureauInspects public employer work sitesProvides workplace hazard consultation servicesPerforms OSHA investigation/enforcement functions:
Responds to deaths in line of duty Responds to accidents where two or more employees hospitalized (Both must be reported by employer within eight hours of employer’s knowledge) Responds to pubic employee/representative complaints
Public employees include:State/County/Town/Village government employeesPublic Authority (e.g. Transit Authority/Power Authority/Water Authority) employeesSchool District employeesPaid/volunteer Fire District employees
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Thomas A. DeSimon, Esq.(585) 419-8609© Harris Beach PLLC, 2012
OSHANo formal consultation servicesInvestigation/enforcement functionResponds to deaths in line of dutyResponds to accidents where three or more employees hospitalizedResponds to complaints from private employees/representatives
Also:Conducts inspections pursuant to National Emphasis Program – periodic, unannounced inspections of specific hazards in an industry for a three year period, designed to reduce occupational illnesses and injuries
Examples:Exposures in nursing home and residential care facilitiesAmputations in manufacturing facilitiesChemical and health hazard exposures in the primary metal industries (e.g. foundries)Dust exposures in the workplace
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Thomas A. DeSimon, Esq.(585) 419-8609© Harris Beach PLLC, 2012
*Inspections, whether by OSHA or NYSDOL are not limited to the incident or complaint for which investigators/compliance officers appear at your facility
Plain View: “They cite what they see” Limited only by the consent provided by employer If emergency or “imminent danger”, they need no consent or warrant
to conduct inspection If entry refused by employer, OSHA can obtain an inspection warrant
(easily obtainable and not easily challenged) An employer who refuses entry but does not have a valid defense to
an inspection warrant can be subject to an order of civil contempt by a federal court judge
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Thomas A. DeSimon, Esq.(585) 419-8609© Harris Beach PLLC, 2012
OSHA Inspections: “The Third Big Lie”CAREFUL!! Anything said or done can be used in support of a violation and the assessment of a civil penalty
Opening Conference – employer informed of why OSHA present and general scope of investigation
“Walkaround” and Document ReviewOSHA 300 (injury) logsHealth and Safety planEmployee representative (i.e. union rep.) can attend/participate
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Thomas A. DeSimon, Esq.(585) 419-8609© Harris Beach PLLC, 2012
Employer should:Designate employer representativeLimit management access to designated rep/repsAccompany compliance officer to all locationsLimit access (if possible) to specific area of inquiry (remember “plain view” violations can be cited)Take photos/notes
Employee interviewsNo right of employer/company counsel to be present - encourage participation but individual employee’s choiceDiscrimination/Retribution Employee cannot be discharged or disciplined for filing complaint or participating in investigation
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Thomas A. DeSimon, Esq.(585) 419-8609© Harris Beach PLLC, 2012
Management Interviews: Under no circumstances should management be interviewed without legal counsel present – many reasons:Statements/Acts of management can bind the companyPotential criminal sanctions – prosecuted by Department of JusticeLying/misrepresentation to an investigating federal officer (18 U.S.C. §1001)Obstruction of Justice (18 U.S.C. §1505)Willful OSHA violation of a safety standard resulting in death
(29 U.S.C. §666)
Better to be safe than sorry! In all “8 hour” reportable cases (death, multiple hospitalizations) legal counsel should be retained and on the scene ASAP
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Thomas A. DeSimon, Esq.(585) 419-8609© Harris Beach PLLC, 2012
New York State
Closing Conference Held at end of investigationGenerally not the same day in serious cases; normally same day in routine inspectionsInvolves general discussion of findings/preliminary assessment of potential violations; need and timing of violation abatements
OSHA has six months from Opening Conference to issue citations
NYSDOL will normally issue Notices of Violation and Orders to Comply at the Closing Conference
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Thomas A. DeSimon, Esq.(585) 419-8609© Harris Beach PLLC, 2012
Post-Inspection Steps to be taken:Employee interviews – can’t be forced; can’t be disciplined for refusalUpjohn warnings given to employees prior to interviewsManagement interviewsHeath and Safety plan review/update
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Thomas A. DeSimon, Esq.(585) 419-8609© Harris Beach PLLC, 2012
New York State
OSHA Citations include:The acts that are alleged to be violations of OSHA regulationsThe cited regulation/regulations claimed to be violatedThe date by which any claimed violation must be abatedThe proposed civil penalty to be assessed for such claimed violationPosting requirementsNote: a single act can result in a number of violations, with individual penalty for each
NYSDOL Notices of Violation and Orders to Comply include:Acts that are alleged to be violationsAbatement date
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Thomas A. DeSimon, Esq.(585) 419-8609© Harris Beach PLLC, 2012
Classifications of ViolationsSerious – a violation where there is a substantial probability that death/serious physical injury could result and the employer knew, or should have known, of the hazard. Punishable by a penalty of up to $7,000/violationWillful – a violation that an employer knowingly commits or commits with plain indifference to the law. Punishable by penalty between $5,000-$70,000/violationWillful Causing Death – imprisonment for up to six months; penalty of up to $250,000/violation (individual) or $500,000/violation (corporation)Repeat – a serious violation committed by an employer previously cited for a substantially similar condition (need not be at the same site). Punishable by penalty of up to $70,000
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Thomas A. DeSimon, Esq.(585) 419-8609© Harris Beach PLLC, 2012
Other than Serious – a violation with a direct relationship to job safety and heath, but would not cause death or serious physical harmPunishable by penalty of up to $7,000/violation; normally, no penalty assessed
Failure to abate – punishable by civil penalty of up to $7,000/day for each day violation continues beyond abatement date
DeMinimus – no direct/immediate relationship to safety/heath; not included in citation
NYSDOL/PESH – imposes penalties for failure to abate violations:Serious violations: $200/dayNon-Serious violations: $50/day
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Thomas A. DeSimon, Esq.(585) 419-8609© Harris Beach PLLC, 2012
Employer options upon issuanceAccept violations and pay penalties (DUMB!)Negotiate at Informal ConferenceLitigate (OSHA) or appeal (NYSDOL)
Informal Conference – OSHAMust be conducted within 15 working days of citation issuancePresent evidence re: inapplicability of OSHA standard or factual defenseNegotiate penalty amount through citation withdrawal, item grouping or good faith adjustmentNegotiate abatement date
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Thomas A. DeSimon, Esq.(585) 419-8609© Harris Beach PLLC, 2012
*If no agreement, Notice of Contest must be filed within 15 working days of citation issuance or rights forfeited
If Notice of Contest filed, case referred to Occupational Safety and Health Review Commission in D.C. for trial; case prosecuted by DOL’s Solicitor’s Office (NYC)
Trial before Administrative Law Judge Appeal of ALJ Decision to Review Commission Appeal of Review Commission decision to U.S. Court of Appeals
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Thomas A. DeSimon, Esq.(585) 419-8609© Harris Beach PLLC, 2012
NYSDOL: Must request Informal Conference within 20 working days of receipt of Notice of Violation/Order to ComplyMust file Petition with Industrial Board of Appeals (IBA) within 60 days of receipt of Notice of Violation/Order to ComplyAppeal of IBA decision to NYS Supreme Court by Article 78
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Thomas A. DeSimon, Esq.(585) 419-8609© Harris Beach PLLC, 2012
Ounce of Prevention/Pound of Cure“Living/Breathing” health and safety planPromote atmosphere of safety from top downProgressive discipline – includes managementSelf/independent safety auditsForm safety committee/encourage employee participationHazard hotlinesDocument/Document/Document! “If it ain’t in writing, it didn’t happen”
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