Presentation on theme: "Supervisor Responsibility: Potential Civil & Criminal Liability presented by Mark A. Lies II Seyfarth Shaw LLP 55 East Monroe Street, Suite 4200 Chicago,"— Presentation transcript:
Supervisor Responsibility: Potential Civil & Criminal Liability presented by Mark A. Lies II Seyfarth Shaw LLP 55 East Monroe Street, Suite 4200 Chicago, IL
Presenter: Mark is a Labor and Employment Attorney and Partner with the Law Firm of Seyfarth Shaw, 55 E. Monroe Street (St. 4200), Chicago, IL 60603, (312) , He specializes in Occupational Safety and Health Law. He graduated from the University of Notre Dame in 1968 and DePaul University School of Law in He was a Commissioned Officer in the U.S. Navy and is a Vietnam Veteran. Mark A. Lies, II
I don’t tell jokes…. “I don’t tell jokes…. I just watch the government and report the facts ….” Will Rogers
OSHA regulations may appear somewhat confusing…. …but your responsibility to comply with safety standards have been in existence for a long while.
If a builder has built a house for a man and his work is not strong, and if the house he has built falls in and kills the the householder, that builder shall be slain. ACCOUNTABILITY King Hammurabi of Babylon 18th Century B.C.
Deuteronomy 21: 15 When you build a new house, make a parapet around your roof so that you may not bring the guilt of bloodshed on your house if someone falls from the roof. 1 st Fall Protection standard ??
Deuteronomy 22: 23 Designate a place outside the camp where you can go to relieve yourself. As part of your equipment have something to dig with and when you relieve yourself, dig a hole and cover up your excrement. 1st Industrial Hygiene standard ??
Exodus 21:33 If a man uncovers a pit or digs one and fails to cover it and an ox or a donkey falls into it the owner of the pit must pay for the loss; he must pay the owner and the dead animal will be his. 3 rd Party Liability standard ??
Program Objectives Program intended to achieve following objectives: Increase supervisor awareness of applicable law Increase knowledge of supervisor rights and responsibilities Improve supervisory skill levels and use of available tools and resources Reinforce supervisors support structure Provide refresher training on policies
Typical Supervisor Qualifications Productive Employee Complies with attendance, drug and alcohol, safety and health policies Lacks basic training in state and federal employment laws Frequently reluctant or unaware of duty to discipline former co-employees
Supervisor Legal Status Agent of Employer Able to create legal liability against employer by negligent or intentional acts Under several laws can create supervisor personal civil and criminal liability Employer’s failure to train supervisor is no defense Employer must discipline supervisor for non- compliance
Many Different Categories of Employers and Employees On-Site Owner Owner’s Representative General Contractor Subcontractors Leased Employees Borrowed Employees Safety Consultants
OSHA Liability Initially, Employer Responsible For Its Own Employees Employer Had To Ensure That Its Employees Were Protected Against: “Recognized Hazards” To Employee Safety and Health (General Duty Clause) Hazards Identified In Specific Regulations (29 CFR 1926, e.g. falls, electrical, lead, silica, etc.)
OSHA Liability Liability was expanded under “Multi-Employer Workplace Doctrine” Now, each Employer is potentially responsible for the safety and health of another Employer’s Employee, if the Employer: Creates the hazard Exposes an Employee to the Hazard Is responsible to correct the hazard, or Is the controlling Employer on the site
OSHA Liability An Employer may have multiple roles on the work site: An Employer may become a “Correcting” or “Controlling” Employer under the Construction Contracts or by voluntarily assuming such duties on the work site On December 10, 1999, OSHA issued Compliance Directive (CPL ) setting out its citation issuance policy for multi-employer work sites
OSHA Liability Citations Willful Serious Non-Serious Repeat Failure to Abate Egregious Each classification contains a different penalty criteria
OSHA Liability Employer Defenses Unavoidable employee misconduct Technological or economic infeasibility Abatement creates great hazard Lack of employee exposure
To Establish Unavoidable Employee Misconduct Employer had safety or health program for specific hazard Employer trained employees Supervisor observed work and disciplined violators; and, Supervisor had no reasonable means to know and correct current violation
OSHA Liability OSHA inspections employee rights employer rights OSHA rights Employee rights right to private one-on-one interview with inspector right to refuse interview
OSHA Liability Employee rights right to have another person present right to end interview at any time no duty to sign statement or be tape recorded or photographed cannot lie to inspector
OSHA Liability Employer rights right to limit inspection to complaint or accident right to accompany inspector right to attend non-private employee interview no duty to produce documents not required by law
OSHA Liability Employer rights right to end inspection if disruptive right to require search warrant (should confer with senior management and legal counsel on decision)
OSHA Liability OSHA rights to conduct inspection, either with consent or search warrant right to use video camera cannot record voice without notice and consent right to inspect documents required by law right to truthful responses
Tort Liability Negligence action for workplace accident Wrongful death if fatality Personal injury Pain and suffering Loss of income Loss of consortium Intentional conduct Punitive damages
Tort Liability Supervisor conduct Negligent or intentional acts create liability Employer Liability Initially workers’ compensation unless injury intentional Third party liability seeking contribution or indemnity Liability of other parties Direct action by injured employee
Tort Liability Duty to preserve evidence involved in workplace accident physical artifacts (machinery) documents (work orders, equipment or site inspection records) condition of equipment and premises Potential legal liability for loss or destruction (“spoliation”) of evidence
Tort Liability Supervisor must ensure that condition of accident site or equipment is memorialized through photographs or other documentary means (e.g., notes, measurements) Maintain custody and control of evidence secure storage chain of custody for evidence
Tort Liability Police and regulatory (OSHA) agencies access to evidence police authority OSHA subpoena chain of custody
Safety Professional: “Putting it all together” Ramifications for inspections/investigations Appropriate language when documenting safety issues Striking a balance to report the facts and providing legal protection
Post Accident Investigations Important to determine root cause(s) of accident Basis for remedial action Potential pitfalls of report tendency to speculate comments may create “admissions” of liability desire to “fingerpoint”
Post Accident Investigations Organize factual evidence (interviews, documents) Consider creating legal privileges (attorney client, work product, self critical analysis) Do not draft any report until thorough review of evidence and risks
Post Accident Investigations Control distribution of report to “control” group to maintain legal privilege Document corrective action or rebuttal to conclusions in report
Criminal Law Liability OSHA Potential liability if: Fatality Violation of specific regulation Violation was willful, and Violation caused fatality Penalty 6 months imprisonment, and/or $500,000 fine per fatality for corporation $250,000 fine per fatality for individual NOTE: No Miranda Warnings Necessary
Criminal Law Liability OSHA Obstruction of justice for interfering with inspection Falsification of records Lying to federal inspector Misrepresentation of subcontractor status to avoid OSHA liability
Criminal Law Liability STATE LAW Murder Attempted Murder Battery Assault Reckless Endangerment DOUBLE JEOPARDY Does Not Apply Possible Federal and State Prosecution
Recent Criminal Actions Scaffold collapse Illegal asbestos removal and explosion Illegal asbestos removal without personal protective equipment Confined space cyanide poisoning Excavation collapse Electrocution involving failure to train electrical workers Failure to provide or enforce use of personal fall arrest system
Competent Person Liability Capable of identifying all existing or predictable hazards (e.g., excavation, fall, electrical, etc.) Imminent Danger – safety or health hazard poses an immediate threat of serious injury or death to employee Hazards are identified in applicable OSHA regulations or recognized industry practices Authorized to take prompt corrective action
Imminent Danger ?
Competent Person Liability Employer Fails To establish qualification to identify hazards Competent person never designated or informed Competent person doesn’t make frequent and regular inspections Competent person never takes corrective action or is ignored
Whistleblower Laws Potential Employer Liability If: Employee engages in “Protected Activity” (e.g., makes complaint about safety or health violation to Employer; files complaint with OSHA; participates in OSHA inspection), and Employee Suffers “Adverse Action” (e.g., termination, discipline, loss of benefits), and
Whistleblower Laws Employer takes Adverse Action and Retaliates against Employee because of Protected Activity Employee may File 11(c) Complaint with OSHA seeking damages OSHA will investigate complaint
Whistleblower Laws If OSHA finds reasonable cause that there was retaliation, case may be filed in Federal Court All States have Whistleblower Laws that may apply
Site Scenarios Supervisor observes contractor employees in unsafe activity contact contractor supervisor immediately to inform of hazard (demand/request/inform) that supervisor immediately remove employees from hazardous areas (demand/request/inform) prompt corrective action Imminent Danger – demand that subcontractor employees immediately exit hazardous area document incident for formal corrective action
Site Scenarios Supervisor observes Company employee failing to wear personal protective equipment (PPE) immediately stop employee from working remove employee from exposure to hazard provide appropriate PPE issue discipline to employee and document conduct retraining of employee
PPE – Respiratory Protection
Yes, there is a backhoe in the middle of the flames !