The Legal Implications of Safety and Health Presented by: Louis A. Ferreira Katherine K. Rosenbaum Joan P. Snyder Stoel Rives LLP 900 SW Fifth Avenue Suite 2600 Portland, Oregon GOSH Conference 2005 March 1, 2005 Session 203

Types of Liability Criminal –Under OSHA-- OSHA Section 666(e)/ORS employer may be liable for a criminal misdemeanor if willful violation of Act results in death of employee. Fine up to $10,000; imprisonment up to 6 months, or both (double for repeat) –“a violation is willful if it is committed knowingly by an employer or supervisory employee who, having a free will or choice, intentionally or knowingly disobeys or recklessly disregards the requirements of a regulation, rule, standard or order” –“employer” means company »Not a manager or supervisor (US v. Doig, 962 F2d 488 (7 th Cir 1991) »Not a parent company (US v. MYR Group Inc. (7 th Cir 3/16/04) Person may be liable if he/she gives advance notice of any inspection. Fine up to $1000; imprisonment up to 6 months, or both. Person who makes a false statement, representation, or certification in any document filed or required to be maintained. Fine up to $10,000; imprisonment up to 6 months, or both.

Types of Liability Criminal –Under state law Murder, involuntary manslaughter, negligent homicide, knowing endangerment California Labor Code Section 6425 –Felony if “intentional or knowing” cause an employee’s death or permanent or prolonged impairment –Applies to manager or supervisor or any employee with custody or control –Fines up to $250,000 for individuals, up to 2-3 years imprisonment –Corporate fines up to $1.5M, $3.5M for repeat Proposed federal “Protecting America’s Workers Act” and “Wrongful Death Accountability Amendment”—create felony for willful violation of OSHA that causes a worker’s death; max 10 years in prison.

Types of Liability Civil –OSHA Citations De Minimis Non Serious Serious Willful Egregious –Limited by 2/21/05 5 th Circuit decision in Secretary of Labor v. Ho—can’t charge per incident penalties if standard is not capable of that interpretation (issue: does standard apply to individual acts or single course of action? Asbestos training and respirator standards prescribe a single work practice, so per incident penalties not appropriate)

Types of Liability Civil –Under state law Worker’s compensation Negligence Employer’s Liability Act Other common law theories

Who Is Liable? For an OSHA Citation –Company (employer) –Possibly other company (employer) on multi-employer worksite

Who Is Liable? For Civil negligence –Possibly Company –Possibly Officers –Possibly Individuals For Criminal prosecution –Possibly Company –Possibly Officers –Possibly Individuals

Multi-Employer Worksites What is it? –Rules for establishing OSHA liability at job site with owners, general contractors, sub-contractors, possibly employers who consider themselves independent contractors Oregon Guidelines: “The *** employers that have ‘knowledge’ of the hazardous conditions and exercise, or have the right to exercise, direct control over the work practices of employees who could reasonably have been exposed to such conditions may be cited. It is OR-OSHA’s intent to cite only those employers responsible for violations of the Oregon Safe Employment Act.”

Multi-Employer Worksites— Oregon guidelines “Control”: An employer will be determined to have sufficient control to abate hazardous conditions on a multi-employer worksite when it either: (1) has a direct employment relationship with an employee exposed to the hazard; or (2) has the authority to direct, or actual directs, how other employers and/or their direct employees are to safely accomplish their specific job tasks. Exceptions –Not presumed to have control if employer did not create a hazard unique to another specialty occupation –Control can’t be based solely on right to terminate or suspend work

Multi-Employer Worksites— Oregon guidelines “Knowledge”: An employer on a multi-employer worksite will be determined to have knowledge of the existence of a hazardous condition if the employer had actual knowledge or with the exercise of reasonable diligence could have known for a reasonable period of a condition or practice at the worksite that constituted a safety or health hazard. Exception: –Not presumed to have knowledge of hazard unique to another employer’s specialty unless had such knowledge for a reasonable period of time

Multi-Employer Worksites— Oregon guidelines “Reasonable period”: A brief period of time that, with the exercise of due diligence,would allow the employer to take appropriate steps to have the safety or health hazard abated or exposure to the hazard eliminated

Multi-Employer Worksites— Oregon guidelines “Exposing employer”: Any employer in a multi- employer workplace maybe cited if it exposes employees over whose work practices it has direct control, or the right to exercise direct control, to hazards of which it has ‘knowledge.’

Multi-Employer Worksites— Oregon guidelines “Controlling employer”: Any employer that has sufficient ‘control’ over a multi-employer workplace to cause hazardous conditions to be abated maybe cited for failing to do so if that employer had ‘knowledge’ of the hazard and there is a reasonable likelihood that employees over whose work practices it exercised direct control, or had the right to exercise direct control, could have been exposed to the hazardous conditions.

Multi-Employer Worksites— Oregon guidelines “Creating employer”: Any employer in a multi- employer worksite that causes a hazardous condition to be created may be cited if it has ‘knowledge’ of the hazard and there is a reasonable likelihood that employees over whose work practices it has direct control, or the right to exercise direct control, could have been exposed to the hazardous condition.

Multi-Employer Worksites Case Example Martinez Melgoza & Associates v. Dept. of Labor & Industries, Wash. Ct. App., No , 1/10/05 –(Asbestos air sampling/inspections contractor liable for failing to ensure asbestos work adequately encapsulated. –Rationale: » (1) “exercised considerable control over the subcontractors and in the exercise of this authority, directed and/or encouraged the violation of safety and health rules”; » (2) had “actual control” because had authority to stop work)

Oregon OSHA 2003 most frequently cited... Fall Protection Safe Operation of Equipment Training Standard Safety Committee Standard Machine Guarding Standard Lower-Level Scaffold Fall Protection Trenching Standard