PowerPoint Presentation

Before and After a DOSH Inspection: Best Practices for Employers

Karen Galipeau FornerManaging Attorney425-246-4210K-SolutionsLaw.comKForner@K-SolutionsLaw.com Property of K-Solutions Law 2015. All rights reserved.2 Property of K-Solutions Law 2015. All rights reserved.WISHA FlowchartProgrammed InspectionUnprogrammed InspectionComplaintSerious InjuryInspectionOpening ConferenceWalk aroundInvestigationClosing ConferenceCitation is Issued(Appeal 15 Working Days)

Reassumption HearingCorrective Notice of Redetermination(Appeal 15 Working Days)Board of Industrial Insurance AppealsSettlement ConferenceScheduling ConferenceDiscoveryAdministrative Hearing before IAJRules of EvidenceDLI has Burden of ProofProposed Decision and OrderFinal OrderComplaintContact your Safety Director and Safety Consultant to let them know that a Compliance Safety Health Officer (CSHO) has arrived at your job site.Train your employees NOT to authorize any inspection until a Safety Director arrives.Have the Safety Director agree to open the inspection.During the walk around, take your own photographs, and measurements.Employees have the right to a private interview with the CSHO.

During an Inspection Property of K-Solutions Law 2015. All rights reserved.Employees also have the right to have a union representative or someone else they want in the interview.Be cooperative, but dont volunteer any information unless its necessary to make sure the CSHO gets a complete understanding. Dont argue with the CSHO.Get the name and business card of the CSHO.Ask the CSHO for complete list of all paperwork needed. Offer to compile it and submit it. Property of K-Solutions Law 2015. All rights reserved.During an InspectionDuring an InspectionDo your own interviews with injured worker and employees.Do your own full report.Talk to a safety expert or attorney before submitting reports to the Department or anyone. Property of K-Solutions Law 2015. All rights reserved.Contractor Responsibility Under Stute v. PBMCWhat is a general contractors general responsibility under WISHA?Because the general contractor has authority to influence working conditions on a construction site, the general contractor has ultimate responsibility under WISHA for job safety and health at the job site in all common work areas, including work areas defined in all contracts under the scope of work to be performed at the job site. Property of K-Solutions Law 2015. All rights reserved.Stute - BackgroundSince the Stute decision, the Washington Courts of Appeals have extended the rule to include upper tier subcontractors and owners/developers.In Weinert v. Bronco National Co. the Court of Appeals held that the owner/developer held a position so comparable to the general contractor that the owner/developer was also responsible to all employees on the work site. Property of K-Solutions Law 2015. All rights reserved.Do general and upper-tier contractors have the same level of responsibility as the actual employer?The duty of care for general and upper-tier subcontractors is lower than the duty of care an employer owes to his or her own employees.WISHA recognizes that general and upper-tier subcontractors are not strictly liable for WISHA violations committed by their subcontractors. Property of K-Solutions Law 2015. All rights reserved.Do general and upper-tier contractors have the same level of responsibility as the actual employer?Only the general duty of care inherent in the role of a general or upper-tier contractor except where a general or upper-tier contractor is the creating or correcting employer, it may be subject to citation even if the subcontractor is not.Example: The subcontractor might successfully defend itself using the argument that the hazard was created by the general contractor and could not be controlled by the subcontractor. Property of K-Solutions Law 2015. All rights reserved.If yes to any of the following, a Stute Citation may follow.Was the general contractor or upper tier subcontractor aware of the violation (either by direct observation or by notification)?If not, was the violation in plain view and of such extended duration that the general contractor or upper tier subcontractor clearly should have been aware of the violation?If not, did the general contractor or upper-tier subcontractor make little or no effort to maintain a presence on the site? Property of K-Solutions Law 2015. All rights reserved.If a parallel Stute violation is identified, how should it be cited?WAC 296-155-100(1)(a)It shall be the responsibility of management to establish, supervise, and enforce, in a manner which is effective in practice:(a) A safe and healthful working environment.(b) An accident prevention program as required by these standards.(c) Training programs to improve the skill and competency of all employees in the field of occupational safety and health.

Property of K-Solutions Law 2015. All rights reserved.How will the exposure of the general contractor or upper-tier subcontractors own employees to a similar violation be handled? Property of K-Solutions Law 2015. All rights reserved.Violations involving the general contractors own employees should be cited in accordance with normal agency practice, without regard to the presence of a parallel violation.If a hazardous condition involves employees of both the general contractor and one of more of its subcontractors, both a direct citation and a parallel citation should be issued to the general contractor if both violations are identified in the course of the inspection.

Property of K-Solutions Law 2015. All rights reserved.Washington Industrial Safety and Health Act (WISHA) DiscriminationWISHA protects employees who advocate and speak up for workplace safety. (RCW 49.17)

Fight the Department dont retaliate against the employee!

Property of K-Solutions Law 2015. All rights reserved.Washington Industrial Safety and Health Act (WISHA). Protects employees who advocate and speak up for workplace safety. Does not have to be an actual safety violation.Scapegoats/suspected safety advocates covered. Job applicants covered.RCW 49.17

RCW 49.17.060Employer General safety standard Compliance.Each employer:

(1) Shall furnish to each of his or her employees a place of employment free from recognized hazards that are causing or likely to cause serious injury or death to his or her employees: PROVIDED, That no citation or order assessing a penalty shall be issued to any employer solely under the authority of this subsection except where no applicable rule or regulation has been adopted by the department covering the unsafe or unhealthful condition of employment at the workplace; and

(2) Shall comply with the rules, regulations, and orders promulgated under this chapter.

RCW 49.17.160Discrimination against employee filing complaint, instituting proceedings, or testifying prohibited Procedure Remedy.(1) No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or herself or others of any right afforded by this chapter.

16Protection from discrimination means that protected employees are protected against adverse actions from employers, such as: Property of K-Solutions Law 2015. All rights reserved.Firing or laying offBlacklistingDemotingDenying overtime or promotionDiscipliningDenying benefitsFailing to hire or rehireIntimidatingMaking threatsReassignment affecting prospects for promotionReducing pay or hoursTypes of Adverse Action17OSHA's Whistleblower Protection Program enforces the whistleblower provisions of more than twenty whistleblower statutes protecting employees who report violations of various workplace safety, airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health insurance reform, motor vehicle safety, nuclear, pipeline, public transportation agency, railroad, maritime, and securities laws. Rights afforded by these whistleblower acts include, but are not limited to, worker participation in safety and health activities, reporting a work related injury, illness or fatality, or reporting a violation of the statutes.

Communications and Public Relations after a Serious Accident or Fatality Property of K-Solutions Law 2015. All rights reserved.Follow up with Management Team to check status of injured and ensure that contact with family members has been made. Do not sign anything without Company approval. All written documentation goes back to main office for review prior to being distributed to anyone.After an Incidenthas been Controlled: Property of K-Solutions Law 2015. All rights reserved.An incident occurred today at the _____________ project.

We are in the process of investigating the incident. The fire department was called and the injured have been transported to local hospitals. Their status is not known at this time. We are cooperating with local officials. We have alerted our crisis management team and they are currently in route. We anticipate that further details will be available later in the day through our spokesperson -____________. Media Response Property of K-Solutions Law 2015. All rights reserved.Calls should be sent to a designated phone line.

This is ______________ Co. can I help you?

All calls regarding the incident are being referred to our company spokesperson _____________________ can I connect you now?Answering the Phone Property of K-Solutions Law 2015. All rights reserved.TimeStress/DistractionCostOngoing relationship with DLIHow fair is it? General/serious or willful? Penalty amount?A Citation is issued. Do you fight it?The Appeals Process Property of K-Solutions Law 2015. All rights reserved.WISHA FlowchartProgrammed InspectionUnprogrammed InspectionComplaintSerious InjuryInspectionOpening ConferenceWalk aroundInvestigationClosing ConferenceCitation is Issued(Appeal 15 Working Days)

Reassumption HearingCorrective Notice of Redetermination(Appeal 15 Working Days)Board of Industrial Insurance AppealsSettlement ConferenceScheduling ConferenceDiscoveryAdministrative Hearing before IAJRules of EvidenceDLI has Burden of ProofProposed Decision and OrderFinal OrderComplaintThe Appeals ProcessFirst document from Department is a Citation and Notice which outlines:WACSViolationsSeverityPenalty

Property of K-Solutions Law 2015. All rights reserved.The Appeals ProcessAppeal protocol is written on C&NFAX your appeal to Department Assistant Director for DOSHAttn: Appeals ProgramPO Box 44604Olympia, WA 98504-4604FAX 360.902.5581 Property of K-Solutions Law 2015. All rights reserved.Public Disclosure RequestsSend a request for all paper and electronic documents related to the inspection to:Attn: Public Records UnitDepartment of Labor and IndustriesP.O. Box 44632 Olympia, WA 98504-4632FAX 360.902.5529 Property of K-Solutions Law 2015. All rights reserved.Public Disclosure RequestsIn your Public Disclosure Request you should include request all written and electronic documents relating to your investigation and citation.Request files for other employers who received citations at that site on the same date.If there is an appeal, you should mention the appeal as you may get materials more quickly.

Property of K-Solutions Law 2015. All rights reserved.Reassumption HearingsReassumption Hearing is:InformalRecordedNOT neutral - the Reassumptions Officer is a Department EmployeeNot confidential unless you are proposing a written settlement and reference Evidence Rule 408 on your proposal and the recordStatements and documents can be used against you later Property of K-Solutions Law 2015. All rights reserved.Corrective Notice and RedeterminationAfter Reassumptions Hearing the Department issues Corrective Notice and Redetermination (CNR).CNR may affirm, modify or vacate portions of Citation and Notice.Appeal from the CNR is to the Board of Industrial Insurance Appeals. Property of K-Solutions Law 2015. All rights reserved.Board of Industrial Insurance AppealsFormal processRules of Evidence ApplyFormal Discovery Rules ApplyDepartment has the burden of proof to prove violationsGet an attorney if going to the Board Property of K-Solutions Law 2015. All rights reserved.Board of Industrial Insurance Appeals - MediationMost cases first go through mediation.Attorney Generals Office represents the Department (often a paralegal in mediation).Mediation is a good time to settle the case if it can be settled before significant $$$ spent on appeal costs. Property of K-Solutions Law 2015. All rights reserved.Board of Industrial Insurance Appeals - HearingsIf the appeal does not resolve in mediation, the appeal is assigned to a hearings judge.Expect written discovery from the Attorney Generals Office and discovery depositions of key witnesses.Make sure you interview and prepare witnesses well before the hearing dates. Property of K-Solutions Law 2015. All rights reserved.When to Hire Legal CounselWhen to Hire Legal CounselIf serious injury or fatality call right awayCan consult informally during inspectionsBefore finalizing any post incident reportsAt Reassumptions Hearing (depends)In Board AppealsFormal rules of evidenceAAG will represent DLIA formal process Property of K-Solutions Law 2015. All rights reserved.SettlementsSettlements Property of K-Solutions Law 2015. All rights reserved.A good settlement is when the outcome is acceptable to both parties.Neither party will feel like they got a Big Win.Settlement can include:Reducing penalty or severityVacating portions of the citationAgreeing to extra steps that contribute to worker safetyEmployer Defenses to a WISHA CitationUnpreventable Employee MisconductThorough Safety Program and Work Rules Designed to prevent the ViolationsAdequate Communication of Work RulesSteps to Discover and Correct ViolationsEffective Enforcement of Safety Program in Practice not just in Theory

You must have proper documentation for all elements! Property of K-Solutions Law 2015. All rights reserved.Work rules must be clear!Must be in writing and tailored to the needs of the employers workplace and operations and the hazards presented by the workplace business operationsTrainingEquipment designed to prevent the violation

Property of K-Solutions Law 2015. All rights reserved.Safety Program Must Include:Focused on overall safety training and specific work instructionsInclude hazard warningsTranslated to foreign language if workforce cannot read EnglishEmployers cannot rely on employees common sense and experience to excuse improper or incomplete instructions.

Property of K-Solutions Law 2015. All rights reserved.Work Rules MUST be Adequately Communicated!Program should include spot inspections by employers or safety consultants and written proof of same.Employer must establish that it exercised reasonable diligence in making attempts to discover and correct workplace hazards and violations of established work rules.Final responsibility for ensuring compliance with standards rests with the employer.Evidence of inadequate supervision or enforcement of safety rules by supervisors raises inference that the employer did not take adequate steps to discover and correct violations.

Property of K-Solutions Law 2015. All rights reserved.Discover and Correct ViolationsEmployer must show it has taken all feasible steps to prevent the misconduct and that the misconduct in question violated a well-enforced rule.Prior violations are evidence that the employees conduct was foreseeable and therefore preventable.Employer must be able to show that it has enforced its safety rules through sanctions and discipline of non-complying employees.Low EMR and low citation history are indicative of a program that is effective in practice.

Property of K-Solutions Law 2015. All rights reserved.Effective Enforcement of Safety Program in Practice Not Just in Theory!Impossibility DefenseAn impossibility defense may exist when:Compliance with requirements of standard is functionally impossible or would prevent performance of required work; andThere are no alternative means of employee protection. Property of K-Solutions Law 2015. All rights reserved.Greater Hazard DefenseA greater hazard defense may exist when:Compliance with a standard would result in greater hazards to employees than non-compliance; andThere are no alternative means of employee protection; andAn application for a variance would be inappropriate. Property of K-Solutions Law 2015. All rights reserved.Multi-Employer DefenseCitations will normally be issued to employers whose employees are exposed to hazards. However, a defense may exist when there is a separate creating, controlling and correcting employer, and there was no knowledge of the hazard. Property of K-Solutions Law 2015. All rights reserved.Creating/Controlling Employer DefenseCreating employer the employer who actually creates the hazard.Controlling employer the employer who is responsible, by contract or through actual practice, for safety and health conditions on the worksite.Correcting employer the employer who has the responsibility for actually correcting the hazard.Knowledge of hazardous condition each employer to be cited must have knowledge of the hazardous condition or could have had such knowledge with the exercise of reasonable diligence. Property of K-Solutions Law 2015. All rights reserved.Challenging Serious Violations: Can HECK be Proved?HazardEmployee Exposure to HazardCode ViolatedKnowledge by Employer of Condition Property of K-Solutions Law 2015. All rights reserved.Duplicative CitationsAn employer charged with violating two standards may not necessarily be found to have committed two violations. The following factors must be considered:Do the two violations allegedly committed by the employer arise out of the same incident?Do the violations address the same hazard?Does the violation of the first standard logically incorporate a violation of the second standard? (By violating the first standard will the second standard be violated as well?) andAre the conditions that gave rise to multiple violations one and the same? Property of K-Solutions Law 2015. All rights reserved.DisclaimerThe purpose of this presentation is to provide general information and should not be construed as legal advice. Each case and situation is unique and specific legal advice must be tailored to the facts for each specific case. Property of K-Solutions Law 2015. All rights reserved.Questions?For reference materials including:a copy of this presentation in PDF formata sample Public Disclosure Request letter requesting information from the Department

email Karen Galipeau Forner at KForner@K-SolutionsLaw.comOr leave card in box at registration52