Legal Issues Arising from OSHA Inspections

Transcription

1 Legal Issues Arising from OSHA Inspections ABA Section of Labor and Employment Law Occupational Safety and Health Committee 2017 Midwinter Meeting, Jupiter, Florida March 8-10, 2017

2 Moderator: Ken Kleinman, Stevens & Lee, Philadelphia Panelists: Schean Belton, Solicitor s Office, Nashville Liz Nadeau, Esq., Washington, D.C. Steve Biddle, Littler Mendelson, Phoenix

3 Scope of Presentation Inspection Warrants Non-Employee Accompaniment on the Walk-Around Multiple Agency Jurisdiction Post-Inspection/Pre-Citation Discovery

4 Search Warrant OSHA has a right to inspect under 29 CFR (a): Compliance Safety and Health Officers... are authorized to enter without delay... to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any place of employment, and all pertinent conditions therein... But do they need to obtain a warrant under the Fourth Amendment? See OSHA Directive for the Field Operations Manual (FOM) CPL (8/2/2016), Chapter 15(III), setting uniform policy and procedures for state plans and federal OSHA for obtaining warrants

5 Search Warrant In Marshall v. Barlow's, Inc., 436 U.S. 307, 320 (1978), the U.S. Supreme Court held OSHA s warrantless searches of a business to ensure compliance with workplace safety rules were unconstitutional. But, the probable cause necessary to obtain a warrant can be something less than that required in a criminal case, and OSHA s warrant request must only be reasonable. If an employer refuses entry, the Area Director, with the approval of the Regional Administrator and Regional Solicitor, can seek to obtain compulsory process, including a warrant.

6 Search Warrant Pre-Inspection Warrants. 29 CFR permits OSHA to seek a warrant in advance of an attempted inspection, for instance, when entry was denied in previous inspections or when a job will only last a short time or the job processes will be changing rapidly. Multiemployer Worksites. According to OSHA, on multiemployer worksites, valid consent can be granted by the owner, or another co-occupier of the space, for site entry. Scope of Warrant. The warrant must be limited to the specific working conditions or practices forming the basis of the inspection, although a broad scope warrant may be sought when the information available indicates conditions that are pervasive in nature or if the establishment is on the current list of targeted establishments.

7 Search Warrant Scope - what about expanded warrants? In the Matter of the Establishment Inspection of Mar-Jac Poultry, Inc. (N.D. Ga. 2016): OSHA obtained a warrant to inspect an entire plant after a worker was injured by an electrical panel, based on a REP for poultry plants. In August 2016, a magistrate recommended the warrant be quashed because the inspection was overbroad. On November 2, the district judge agreed based on Fourth Amendment considerations, and quashed the warrant saying OSHA could not inspect the entire operation, just the area surrounding the electrical panel where the accident occurred.

8 Search Warrant Expanded warrants? In re Establishment of Nissan N. Am. (S.D. Miss. 2016): After non-union Nissan objected to union advocates accompanying OSHA on an inspection, OSHA received an inspection warrant from a federal judge on Sept. 1 approving the inspection and participation of the advocates. On Sept. 19, Nissan asked the judge to quash the warrant. The parties settled on Nov. 14 to allow the inspection to go forward.

9 The Walk-Around The OSH Act, 29 U.S.C. 657(e), states: Subject to regulations issued by the Secretary, a representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Secretary or his authorized representative during the physical inspection of any workplace for the purpose of aiding such inspection.

10 The Walk-Around 29 C.F.R , adopted in 1971, states: The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the Compliance Safety and Health Officer, good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace, such third party may accompany the [Officer].

11 The Walk-Around On 2/21/13, OSHA issued an interpretive letter stating: Section (c) explicitly allows walk-around participation by an employee representative who is not an employee of the employer when, in the judgment of the OSHA compliance officer, such a representative is "reasonably necessary to the conduct of an effective and thorough physical inspection."

12 The Walk-Around The Fairfax Letter interprets "reasonably necessary" as when the representatives will make a positive contribution to a thorough and effective inspection Non-English speaking workers Uncomfortable talking to OSHA without the trusted presence of a representative of their choosing Representative s experience in evaluating similar working conditions in a different plant

13 The Walk-Around The 9/8/16 complaint in NFIB v. Dougherty alleges that the Fairfax Letter is a legislative rule that was promulgated without an opportunity for notice and comment NFIB also alleges that the Letter exceeds OSHA s authority under 29 U.S.C. 657(e) OSHA moved to dismiss for lack of subject matter jurisdiction and failure to state a claim, among other reasons In a 2/3/17 opinion, the District Court for the Northern District of Texas granted the motion in part and denied it in part

14 The Walk-Around In concluding that NFIB stated a claim upon which relief can be granted, the Court stated: The Letter flatly contradicts a prior legislative rule as to whether the employee representative must himself be an employee. Even if OSHA can show that union representatives should be permitted on walkarounds, (c) is clear that such a person cannot be designated as an employee's representative unless the person is employed by the employer.

15 The Walk-Around The Court dismissed with prejudice NFIB s claim that the Letter exceeds OSHA's authority under the Act finding: [U]nlike 29 C.F.R (c), which explicitly provides that [t]he representative(s) authorized by employees shall be an employee(s) of the employer, and permits a non-employee third party to accompany the Officer during a physical inspection of the workplace, the Act merely provides that the employee's representative must be authorized by the employee, not that the representative must also be an employee of the employer.

16 Multiple Agency Jurisdiction How does OSHA determine which agency has jurisdiction over the same incident? MSHA DOT PHMSA Coast Guard Other agencies

17 Multiple Agency Jurisdiction Preemption 29 U.S.C.A. 653(b)(1) provides in part that nothing in [the Act] shall apply to working conditions of employees with regard to which other Federal agencies... exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety and health. Test: (1) The employer is covered by another federal act directed exclusively at employee safety and health or directed at public safety and health and employees directly receive the protection the act is intended to provide. (2) The other federal agency has exercised its statutory grant of authority. (3) The other federal agency has acted in such a manner as to exempt the cited working conditions from OSHA jurisdiction.

18 Multiple Agency Jurisdiction Interagency Agreements 1979 agreement between MSHA and OSHA set forth factors to determine who has jurisdiction. - an employer will be subject to MSHA rather than OSHA if it is engaged in mining or milling. Memorandum of Understanding (MOU) between OSHA and Coast Guard OSHA has jurisdiction if working conditions not covered by regulations. see Chao v Mallard Bay Drilling, Inc. 534 US 235 (2002).

19 Post-Inspection/Pre-Citation Discovery Routine Document Requests: OSHA required written programs OSHA required certifications Training records (e.g., fall protection, hazard communication, powered industrial trucks, etc.) OSHA 300 logs and Form 301s or equivalents See OSHA Directive for the Field Operations Manual (FOM) CPL (8/2/2016), Chapter 15(I), setting uniform policy and procedures for state plans and federal OSHA for issuing administrative subpoenas

20 Post-Inspection/Pre-Citation Discovery Generally, employers often insist on written requests from OSHA for nonroutine documents Allows for analysis of possible objections Assists in keeping track of produced documents Allows for clear assertion of privileges - attorney-client privilege - work product doctrine - self-critical analysis privilege

21 Post-Inspection/Pre-Citation Discovery Inspection Interviews and Depositions Right of employer representative to be present management vs. non-management Management Employer has a right to be present, including by its attorney Non-management OSHA usually demands privacy for hourly employee interviews OSHA usually allows a union representative to be present Employee may request management or attorney presence

22 Questions

23 Thank You 2012 Littler Mendelson, P.C.