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Knowledge is Power – Part 2

World Cement,

Read part 1 of this article here. Part 2 continues to outline some basic lessons about MSHA/OSHA investigations from one of the most experienced and largest DOL/OSHA/MSHA defence teams in the US.

  • Violations labelled ‘willful’ or ‘repeat’ by OSHA or ‘reckless disregard’ or ‘unwarrantable’ by MSHA, create the greatest enforcement risks. They carry the highest penalty potentials and often result from a company ‘agent’ – supervisor, foreman, project manager, plant manager – answering leading questions, such as: “Did you know about it?” and “How long was it there?” Train your supervisors on duties and rights.
  • Identify and preserve required records, and those related to any event that MSHA or OSHA may be interested in, and institute a ‘document hold’ for any adverse incidents that might result in litigation. Know in advance what records agencies will likely ask for, how you will respond to their requests and understand whether you have protected against recorded hazards.
  • Documents can be evidence of ‘willful’ violations, yet many documents are required to be created and maintained by law and regulations. Others are voluntarily created by the company and have confidentiality and/or trade secret expectations associated with them that require protection.
  • All documents, reports, records and emails should be drafted carefully, reviewed before sending, and followed up on, with an awareness and understanding of their potential use by adverse parties. In addition, companies should adopt and follow routine document preservation and disposal policies.
  • Conduct occasional document and record keeping mini-audits, under the direction of counsel, anticipating litigation, to support legal advice on corrective actions and litigation strategy. While company personnel should work with counsel to seek to establish and justify audit confidentiality and privilege claims, such claims are never a guarantee that documents will not be subject to third party discovery, rendering their content and follow-up corrections far more important than the privilege claims.
  • Teach supervisory personnel how to successfully talk to, and deal with OSHA and MSHA to minimise risks. Professional discussions with agency personnel, along with respectful exercise of employer and individual rights, including disagreement with an inspector’s opinions, are critical in seeking to prevent the issuance of enforcement actions at the earliest stage of an MSHA/OSHA inspection or investigation.
  • Understand, create, train in, implement, document and, when needed, explain “mitigating circumstances” to MSHA and OSHA. Training in company safety rules and enforcing rules with counselling and discipline, demonstrate that the employer should be able to rely on preventive programmes, and employee obligations to comply, creating an OSHA defence and reducing MSHA allegations of ‘fault’ or negligence.
  • Learn the agency’s emphasis programmes (e.g. fall protection and silica dust), their most recently announced enforcement focus (MSHA rules to live by), the most common citations issued to your site and create simple methods of relaying prevention programmes to your workforce.
  • Use informal settlement opportunities to achieve amicable, acceptable results, but challenge citations and penalties that are inappropriate or incorrect to prevent an ever growing number of enforcement actions aimed at companies that do not “push back,” and merely pay the fines, increasing their violation history to support higher penalties in the future.

This is the second of a two-part article written by Henry Chajet and featured in the July issue of World Cement. Subscribers can read the full issue by signing in, and can also catch up on-the-go via our new app for Apple and Android. Non-subscribers can access a preview of the July 2015 issue here.

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