Construction Employers and OSHA Violations:

Willful Violations, Civil and Criminal PenaltiesRecent Federal Cases Against Contractors, Best Practices and Operating Procedures

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WEDNESDAY, AUGUST 11, 2021

Presenting a live 90-minute webinar with interactive Q&A

Kevin D. Bland, Shareholder, Ogletree Deakins, Costa Mesa, CA

Taylor E. White, Shareholder, Winstead PC, Dallas, TX

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Anatomy of an OSHA Serious Injury/Fatality Investigation: Are You

Prepared?

Presented by:

Kevin D. Bland Shareholder

Ogletree Deakins

695 Town Center Drive

Suite 1500

Costa Mesa, CA 92626

(949) 813-1120 Cell

Kevin.Bland@ogletreedeakins.com

Agenda

• How can construction counsel limit liability for clients facing

OSHA investigations and/or OSH Act violations?

• How can employers ensure worksites are complying with all of

OSHA's COVID-19 safety and health procedures?

Fatality cases I see most….

• Sky Lights Cases

• Electrocution

• Trench Collapse

• Struck by

Compliance tools

Unique Challenges of Fatality and Catastrophic Injury Investigations

• Deal with the emergency first

• Notify OSHA and all critical corporate actors– California reporting requirements slightly differ

▪ Practice pointers for non-fatalities

• Anticipate and strategically respond to additional third parties involved

• Expect more timely and thorough agency actions– OSHA’s specific compliance directive

Internal Accident Reports

• Should you prepare an internal accident report?

• When?

• What are some benefits?

• What are the risks?

• Key concept – avoid speculation, opinions, or conclusory statements about possible causes of the accident

• California point– Consider dual reports

▪ IIPP minimum (public)

▪ Internal RCA (privileged)

Dealing with Co-Workers

• On-site support

• Company communication piece

• Management employees: emphasize need to limit “chatter”

– Proper use of potential privileges

Dealing with News Media

• Direct to proper contact

• Generic response

• Anticipate contact of other parties with the media– OSHA

– Other employers

Dealing with Families of Victims

• Primary point of contact at company

• Provide sufficient information

• Address other concerns, such as personal property and financial details

• Anticipate OSHA’s contact with the family

Dealing with Law Enforcement/District Attorney

• Careful cooperation

• Strategic responses to requests for information and/or documents

• Potential criminal charges

• Equipment

Analyzing Potential Exposure and Liability

Analyzing Potential Exposure and Liability (cont)

• Potential areas for criminal prosecution

– Section 17(e) of the OSH Act

– Potential criminal penalties for willful violation resulting in fatality

– California (LC 6425) – Whole different world – more to come…

California Criminal Liability

• (Willful” safety violations causing death (Labor Code 6425)

• Corporations:

• FELONY

• UP TO APPROX $6 MILLION ($1.5 MM, PLUS 310%)

• Victim Restitution

• Individuals:• FELONY

• UP TO 3 YEARS STATE PRISON

• UP TO APPROX $1 MILLION ($250K, PLUS 310%)

• Victim Restitution

California – What is Willful

• “Willful” – refers to CONDUCT (no knowledge of illegality is necessary); AND

• Causation – true as long as it was a “substantial factor” (contributory negligence of others or of deceased is not defense)

California – Individual Criminal Liability

• LC 6425: “Any employer and any employee having direction, management, custody, OR control over any employment, place of employment, or of any other employee and willfully violates” OSHA safety rules

• Translation: supervisors who knew about, and could have stopped, the violation(s) but chose not to

Expert Analyses and Reports

• Helpful when you need to thoroughly analyze possible causes.

• Retain through outside counsel to preserve confidentiality.

• Outside counsel can also scrutinize the strength of analyses and conclusions for later use.

• When selecting an expert, technical qualifications are important, but industry experience and reputation are critical.

Managing Expectations and Outcomes

• Fatality or catastrophic injury investigations will almost certainly result in a citation

• OSHA political priorities and enforcement bias

• A working assumption that you did or failed to do something

• If your defense is “employee misconduct,” let the evidence speak for itself– Don’t oversell this defense too early

Construction Employers and OSHA

Violations: Willful Violations, Civil and

Criminal Penalties

Taylor E. White

Shareholder, Winstead PC

twhite@winstead.com

Emphasis Programs▪ Trenching and Excavation (National)

▪ Effective 10/1/18

▪ “OSHA believes that there is a potential for a collapse in

virtually all excavations.”

▪ Penn. criminal charge—trench collapse (11/24/20)

▪ Respirable Crystalline Silica (National)

▪ Effective 2/4/20

▪ “[S]and, concrete, stone, and mortar contain crystalline

silica.”

▪ Common Regional Emphasis Programs

– Construction (generally)

– Fall Hazards

– Cranes

Surviving OSHA Visits

▪ We will:

o Discuss a common issue for construction

employers—how to survive an OSHA visit.

o Discuss employer rights—what can you claim and

what you can’t.

o Discuss best practices—what works and doesn’t

work for your business.

▪ We won’t:

– Suggest a uniform approach—all hazards and

construction sites are different.

– Answer all questions that may arise.

Review, Revise, and Update

▪ What?

▪ Operating procedures

▪ Safety manuals

▪ OSHA logs

▪ Who?

▪ Managers (operations leaders)

▪ Safety professionals▪ Why?

▪ Accuracy

▪ Consistency with reality

▪ New or different regulations

▪ Contract compliance

▪ Insurance requirements

Educate and Communicate

▪ Who?

▪ Managers

▪ Safety professionals

▪ Non-managerial staff???

▪ What (in additional to safety and

operations requirements)?

▪ Rights during investigations

▪ Communication and response strategy/plan

▪ Documents

▪ Why?

▪ Consistency of response

▪ Preservation of rights and privileges

Rights? What Rights? ▪ To deny entry to OSHA, if no warrant

▪ To verify credentials of OSHA officer

▪ To legal and company representative

▪ To understand the scope of investigation

▪ To document evidence collected by OSHA

▪ To seek limitation or clarification of document requests

▪ To protect confidential information and trade secrets

Exercise of Rights = Cautious Cooperation

Known Hazards and Employee Complaints

▪ Remember the Definition of “Willful.” “[E]mployer either knowingly failed to comply with a legal

requirement (purposeful disregard) or acted with plain indifference

to employee safety”

Ignorance of the requirements is no defense.

▪ Address Employee Complaints. Have an established procedure.

Designate a manager to address.

Document resulting actions or remedial measures.

▪ Stay Ahead of Open and Obvious Hazards.▪ Manager-led walk-around (e.g., walking-working surface hazards,

etc.)

▪ Appropriate signage and posters (e.g., confined space signage,

OSHA-3165 poster, etc.)

To Contest, or Not to Contest ▪ Remember Key Deadlines

15 working days after receipt of OSHA Notification of Citation and Penalty = hold informal

conference AND contest

21 days after service of OSHA complaint with OSHRC = file answer

▪ Remember Your Options

Reduction of penalty amount

Reclassification of citation

▪ Understand Business Impact

Rejection of bids

Increased insurance premiums

Additional OSHA scrutiny

Surviving OSHA’s COVID-19 Enforcement

Plan of Action:

▪ Assess risk to employees.

▪ Educate / train employees.

▪ Require proper sanitation and PPE.

▪ Implement proper hierarchy of controls.

▪ Properly address safety complaints.

▪ Record work-related COVID-19 illnesses.

DOCUMENT YOUR EFFORTS!

A Word (or Three) about Contracts

▪ Who Does What?

▪ Training

▪ Hazard abatement

▪ Provide PPE

▪ Safety obligations

▪ Control / supervision

▪ Minimum standards

▪ Rights to stop work

▪ Indemnification

▪ Governed by state law

▪ Needs to be properly worded

DISCLAIMER▪ These materials should not be considered as, or as a substitute for, legal advice,

and they are not intended to nor do they create an attorney-client relationship.

▪ Since the materials included here are general, they may not apply to your individual

legal or factual circumstances.

▪ You should not take (or refrain from taking) any action based on the information you

obtain from these materials without first obtaining professional counsel.

▪ The views expressed in this presentation do not necessarily reflect those of the

firm, its lawyers, or clients.

Construction Employers and OSHA

Violations: Willful Violations, Civil and

Criminal Penalties

Taylor E. White

Shareholder, Winstead PC

twhite@winstead.com