1. Labor and Employment Law Series: When OSHA (or the NYSDOL) Comes Knocking September 13, 2012 Presentation By: Thomas A. DeSimon, Esq. Co-Chair: Government Compliance & Investigations tdesimon@harrisbeach.com 99 Garnsey Road Pittsford, New York 14534 (585) 419-8609 www.harrisbeach.com

2. Thomas A. DeSimon, Esq. (585) 419-8609 © Harris Beach PLLC, 2012 2 Occupational Safety and Health Act History: Occupational Safety and Health Administration (OSHA)  Created in 1970  Until 1970 no uniform/comprehensive provisions existed for protection against workplace safety and health hazards  Charged with enforcement of Occupational Safety and Health Act  Act applies to all employers and employees in all 50 states, D.C. and P.R. and territories under federal government jurisdiction  Coverage provided either directly by OSHA or through OSHA – approved state programs

3. 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 3

4. 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 Labor  Oversees workplace protection of public employees at the state and local level  Enforces all safety and health standards promulgated under the Occupational Safety and Health Act 4

5. Thomas A. DeSimon, Esq. (585) 419-8609 © Harris Beach PLLC, 2012 PESH Bureau  Inspects public employer work sites  Provides workplace hazard consultation services  Performs 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 employees  Public Authority (e.g. Transit Authority/Power Authority/Water Authority) employees  School District employees  Paid/volunteer Fire District employees 5

6. Thomas A. DeSimon, Esq. (585) 419-8609 © Harris Beach PLLC, 2012 OSHA  No formal consultation services  Investigation/enforcement function  Responds to deaths in line of duty  Responds to accidents where three or more employees hospitalized  Responds 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 facilities  Amputations in manufacturing facilities  Chemical and health hazard exposures in the primary metal industries (e.g. foundries)  Dust exposures in the workplace 6

7. 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 7

8. 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 Review  OSHA 300 (injury) logs  Health and Safety plan  Employee representative (i.e. union rep.) can attend/participate 8

9. Thomas A. DeSimon, Esq. (585) 419-8609 © Harris Beach PLLC, 2012 Employer should:  Designate employer representative  Limit management access to designated rep/reps  Accompany compliance officer to all locations  Limit access (if possible) to specific area of inquiry (remember “plain view” violations can be cited)  Take photos/notes Employee interviews  No right of employer/company counsel to be present - encourage participation but individual employee’s choice  Discrimination/Retribution  Employee cannot be discharged or disciplined for filing complaint or participating in investigation 9

10. 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 company  Potential criminal sanctions – prosecuted by Department of Justice  Lying/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 10

11. Thomas A. DeSimon, Esq. (585) 419-8609 © Harris Beach PLLC, 2012 New York State Closing Conference  Held at end of investigation  Generally not the same day in serious cases; normally same day in routine inspections  Involves 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 11

12. 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 refusal  Upjohn warnings given to employees prior to interviews  Management interviews  Heath and Safety plan review/update 12

13. 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 regulations  The cited regulation/regulations claimed to be violated  The date by which any claimed violation must be abated  The proposed civil penalty to be assessed for such claimed violation  Posting requirements  Note: 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 violations  Abatement date 13

14. Thomas A. DeSimon, Esq. (585) 419-8609 © Harris Beach PLLC, 2012 Classifications of Violations  Serious – 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/violation  Willful – a violation that an employer knowingly commits or commits with plain indifference to the law. Punishable by penalty between $5,000- $70,000/violation  Willful 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 14

15. 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 harm  Punishable 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/day  Non-Serious violations: $50/day 15

16. Thomas A. DeSimon, Esq. (585) 419-8609 © Harris Beach PLLC, 2012 Employer options upon issuance  Accept violations and pay penalties (DUMB!)  Negotiate at Informal Conference  Litigate (OSHA) or appeal (NYSDOL) Informal Conference – OSHA  Must be conducted within 15 working days of citation issuance  Present evidence re: inapplicability of OSHA standard or factual defense  Negotiate penalty amount through citation withdrawal, item grouping or good faith adjustment  Negotiate abatement date 16

17. 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 17

18. 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 Comply  Must file Petition with Industrial Board of Appeals (IBA) within 60 days of receipt of Notice of Violation/Order to Comply  Appeal of IBA decision to NYS Supreme Court by Article 78 18

19. Thomas A. DeSimon, Esq. (585) 419-8609 © Harris Beach PLLC, 2012 Ounce of Prevention/Pound of Cure  “Living/Breathing” health and safety plan  Promote atmosphere of safety from top down  Progressive discipline – includes management  Self/independent safety audits  Form safety committee/encourage employee participation  Hazard hotlines  Document/Document/Document! “If it ain’t in writing, it didn’t happen” 19