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Legislative Update
The OSHA reform bills introduced by Representative
Charlie Norwood of Georgia passed the House Education and Workforce
Committee earlier this month, and will be introduced as amendments
to Senator Michael Enzi's SAFE Act Bill in the Senate. These bills,
which we told you about in our last update, would allow small employers
to receive awards of attorneys fees when they successfully contest
an OSHA citation, give interpretative authority on OSHA Regulations
to the Occupational Safety and Health Review Commission, and increase
the membership of the Occupational Safety and Health Review Commission
from three to five.
Senator Enzi has indicated he will introduce a revised SAFE Act
this year that would exempt employers from OSHA penalties for one
year after they conduct voluntary audits with assistance from OSHA-certified
safety consultants, provided the employer also commits to fix wholesale
deficiencies found by the third-party consultant. It is likely
that the revised SAFE Act would also provide for felony offenses
carrying a maximum of 18 months in prison and a $10,000 fine.
Another proposed Senate bill, the Protecting America's Workers
Act introduced on April 28 by Senator Ted Kennedy, would enhance
criminal penalties for willful safety and health violations that
result in fatalities and require employer payment for personal
protective equipment. It would also provide additional whistleblower
protections for employees, require mandatory OSHA investigations
of accidents resulting in fatalities and/or the hospitalization
of two or more employees, and allow employees to formally object
to settlement agreements for contested OSHA citations. Other provisions
of the Act extend OSHA jurisdiction to federal, state, and local
government employees and formalize the process by which other government
agencies assume responsibility for occupational safety and health.
Also on April 28, Senator Jon Corzine introduced the Workplace
Wrongful Death Accountability Act, which would increase the penalties
for willful violations resulting in fatalities, providing advance
notice of an OSHA inspection, and for intentionally misleading
an OSHA Compliance Officer. Both the Protecting America's Workers
Act and the Workplace Wrongful Death Accountability Act have companion
bills in the House of Representatives.
Cooperative Enforcement Efforts
by OSHA, EPA and the DOJ
While it is doubtful that the legislative action seeking to increase
criminal sanctions for safety violations will be enacted, prosecutors
are finding other avenues to impose tougher criminal penalties
on employers for workplace violations. As part of an informal arrangement
between OSHA, the Environmental Protection Agency (EPA), and the
Department of Justice's (DOJ) Environmental Crimes section, OSHA
Compliance Officers are receiving training on detecting environmental
violations during workplace inspections so that egregious violators
can be charged with environmental crimes. While occupational safety
and health crimes are misdemeanors, federal EPA crimes are felonies
with potential prison sentences of up to 20 years. The effort is
being directed toward employers whose safety violations result
in workplace deaths or serious injuries.
Criminal Prosecution for OSHA Violations
On May 19, L.E. Myers Co., a Chicago construction company, was found guilty of
willfully violating provisions of the Occupational Safety and Health Act in the
electrocution death of a lineman. The company could be fined up to $500,000 and/or
sentenced to five years' probation for the conviction. While criminal prosecutions
for OSHA violations are rare, the prosecutor in this case noted that the Department
of Justice and the Department of Labor will look closely at cases that involve
willful violations that result in fatalities.
Unpreventable Employee Misconduct
A recent decision by an Occupational Safety and Health Review Commission Administrative
Law Judge offers a textbook lesson in how to assert unpreventable employee misconduct
as a defense to an OSHA citation. In Secretary of Labor v. Westar Energy
Inc.,
ALJ Ken Welsch found that Westar's claim of unpreventable employee misconduct
was supported and thus dismissed the OSHA citation for an alleged violation of
the electrical power generation standard.
The citation arose from a 2002 accident in which an apprentice cable splicer
was electrocuted when he and his foreman were preparing to repair a lightning
arrestor inside a transformer. The apprentice came into contact with a primary
circuit without wearing the required rubber gloves, and OSHA contended that Westar
had violated the standard because an experienced supervisor allowed the apprentice
to be within the minimum approach distance without adequate personal protective
equipment. Westar asserted that the accident was instead due to unpreventable
employee misconduct.
The ALJ's decision noted that four elements are required to prove unpreventable
employee misconduct:
- The employer has established work rules designed to prevent
the violation.
- It has adequately communicated the work rules to employees.
Employees must understand the scope of the rule and its mandatory
nature.
- Adequate steps have been taken to uncover violations. While
constant surveillance is not required, a diligent effort must
be made to discover and discourage safety violations by employees
- Effective disciplinary actions have been taken when violations
are discovered. The ALJ noted that "effective" discipline
should include progressive steps to higher levels of punishment;
a failure to progress to higher levels of punishment or repeated
noncompliance may indicate ineffective enforcement.
Item 4
is especially important in establishing that an employer has
a real and effective safety program, not just a paper
policy.
The ALJ found that Westar had an adequate safety rule that would
have prevented the accident if followed. Westar also provided
evidence that its rules had been communicated to employees, including
the supervisor and apprentice involved in the accident. Records
of frequent site visits, weekly crew audits, monthly safety assessments,
and periodic site visits by corporate safety personnel, as well
as a policy mandating that safety violations be reported to supervisors,
established that the company had taken adequate steps to uncover
violations. Westar also submitted evidence that since 1990 it
had disciplined more than 29 employees for safety infractions,
including disciplinary actions and/or termination of employees
for failure to use PPE, and disciplinary actions, demotion, and/or
termination for supervisors who failed to ensure that employees
used PPE.
While not disputing these facts, the Department of Labor attorney
representing OSHA argued that because an experienced supervisor
had been present and had allowed the apprentice to work within
the minimum approach distance without PPE, the employer's safety
program must be deficient. However, since the employer had a
record of monitoring visits that established no prior safety
infractions for this supervisor or his crew, the ALJ determined
that the DOL's argument was not supported by the record. While
the burden of proof in employee misconduct cases is higher when
a supervisor is involved, the decision states that the proper
focus in employee misconduct cases should be on the effectiveness
of the employer's safety program and not on whether the misconduct
involves a foreman.
In sum, the ALJ's decision makes it clear that unpreventable
employee misconduct is a valid defense for an OSHA citation when
the employer can demonstrate not only that it has established
effective safety rules and has communicated them effectively
to employees, but has also taken diligent steps to uncover violations,
and has enforced safety rules through progressive disciplinary
actions.
If you have any questions,
please email us at:
You
may also call us at 404-525-8622.
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