Presenter:

1. Supervisor Responsibility: Potential Civil & Criminal Liabilitypresented byMark A. Lies IISeyfarth Shaw LLP55 East Monroe Street, Suite 4200Chicago, IL 60603mlies@seyfarth.com

2. 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) 269-8877, mlies@seyfarth.com. 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 1974. He was a Commissioned Officer in the U.S. Navy and is a Vietnam Veteran. Mark A. Lies, II

3. “I don’t tell jokes…. I just watch the government and report the facts ….” Will Rogers

4. OSHA regulations may appear somewhat confusing…. …but your responsibility to comply with safety standards have been in existence for a long while.

5. ACCOUNTABILITY 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. King Hammurabi of Babylon 18th Century B.C.

6. 1st Fall Protection standard ?? 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. Deuteronomy 21: 15

7. 1st Industrial Hygiene standard ?? 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. Deuteronomy 22: 23

8. 3rd Party Liability standard ?? 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. Exodus 21:33

9. 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

10. 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

11. 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

12. Potential Legal Liabilities • Workers’ Compensation • OSHA • Tort • Criminal • Whistleblower Laws

13. Many Different Categories of Employers and Employees On-Site • Owner • Owner’s Representative • General Contractor • Subcontractors • Leased Employees • Borrowed Employees • Safety Consultants

14. 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.)

15. 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

16. 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 2-0.124) setting out its citation issuance policy for multi-employer work sites

17. OSHA Liability • Citations • Willful • Serious • Non-Serious • Repeat • Failure to Abate • Egregious Each classification contains a different penalty criteria

18. OSHA Liability • Employer Defenses • Unavoidable employee misconduct • Technological or economic infeasibility • Abatement creates great hazard • Lack of employee exposure

19. 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

20. UNANTICIPATED HAZARDS

21. 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

22. 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

23. 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

24. 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)

25. 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

26. 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

27. 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

28. 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

29. 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

30. Tort Liability • Police and regulatory (OSHA) agencies access to evidence • police authority • OSHA subpoena • chain of custody

31. 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

32. 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”

33. 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

34. Post Accident Investigations • Control distribution of report to “control” group to maintain legal privilege • Document corrective action or rebuttal to conclusions in report

35. 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

36. 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

37. Criminal Law Liability STATE LAW • Murder • Attempted Murder • Battery • Assault • Reckless Endangerment DOUBLE JEOPARDY • Does Not Apply • Possible Federal and State Prosecution

38. 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

39. 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

40. Imminent Danger ?

41. Imminent Danger ?

42. Imminent Danger ?

43. Imminent Danger ?

44. 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

45. 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

46. 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

47. 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

48. 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

49. 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

50. PPE – Respiratory Protection