by Dave Jones-Landry –
After working for a number of years at a firm practicing almost exclusively in the area of occupational safety and health and defending employers against regulatory actions brought by Cal/OSHA, MSHA (the Federal Mine Safety and Health Admin.), and Fed/OSHA, I moved on to join Bradford & Barthel, LLP. My move into workers’ compensation was smooth and natural, given that a good portion of my practice in occupational safety defense included defending employers against the “serious and willful misconduct” and 132a discrimination claims in the workers’ compensation forum that often accompany claims for catastrophic injuries.
As I became accustomed to work that is more directly associated with compensatory liability, as opposed to regulatory liability, I began to see that my background in regulatory defense could serve as a solid basis for bringing added value to B&B’s existing clientele, as well as to our clients’ clientele – the insured employers themselves. If there is one thing that was reinforced time and time again in my former practice, it’s that most employers are not aware that there is anyone available to help them defend against Cal/OSHA citations, and indeed, many employers simply are not aware that they can defend against Cal/OSHA citations, or citations issued by other occupational safety regulatory authorities.
To the employers, safety officers, risk managers, or curious insurance adjusters who are reading this, please know that there is someone on your side, that you are entitled to a defense against regulatory citations, and that you don’t have to take a Cal/OSHA or other regulatory beating lying down!
To be sure, there is a lot to be said about occupational safety and health regulation, the potential for any particular employer to be inspected and/or cited, and the specific issues related to challenging citations if they are received. For that reason, I won’t hit you all at once with everything. Rather, I’m planning to take the approach of breaking some of the issues down into logical pieces, and addressing them a little at a time. As I move along through some of the issues, I hope to bring some light to an area where I know many are in the dark, and I invite you to review the articles I’m planning to present on a periodic basis, each of which will address a new issue or set of issues.
To begin, I’ll give you some general, introductory information, which I do hope you find useful.
First, for employers who are permissibly self-insured in the state of California and who regularly obtain representation in workers’ compensation matters, occupational safety and health issues are close to home as by virtue of self-insured status, liability for either insurable workers’ compensation claims or uninsurable Cal/OSHA liability is ultimately borne by the employer itself, rather than by a third party. This is one area where someone in my shoes can be particularly useful, simultaneously handling “normal” workers’ compensation issues, S&W issues, 132a issues, and Cal/OSHA issues without the need to constantly confer amongst separate counsel, thereby saving the PSI client a lot off its bottom line.
The lion’s share of Cal/OSHA cases involve workplaces where serious injuries are likely, such as construction sites, but there are still a number of issues in the Cal/OSHA arena that affect retail stores, restaurants, warehouses and other “light” industries. As you know, employees can suffer an injury in nearly any line of work, and where injuries are likely or expected, there are sure to be regulatory requirements which the State will allege have been violated when an injury occurs, or even when an injury has not occurred but may potentially occur.
One point employers often overlook is that with citations issued by Cal/OSHA to the same employer for the same violation more than once in three years, there can be enhanced penalties for “repeat” violations. Also, where there are prospective “repeat” citations, the new chief counsel for the Division of Occupational Safety and Health is taking the position that adequate grounds exist to support issuance of a “willful” violation alleging the employer knew of the regulatory requirement but nonetheless failed to comply (penalties up to $70K). To make things worse, for large “parent” employers, the Division tends to argue that regardless of whether the “repeat” violation occurs at a subsidiary location, the violation is attributed to the same “employer” – that being the ‘parent” company. The Division has little to no respect for corporate entities being separate and distinct, and the employer in these kinds of situations often actually needs to put that argument out at a hearing.
As an example of potential allegations of “willful” violations, we can look to recent history regarding a large commercial bakery centered in Southern California, which had a series of citations issued to various locations throughout the state and ended up the target of enforcement actions resulting in a number of “willful” citations to the tune of hundreds of thousands of dollars. In other words, large employers with multiple work locations should take relatively minor citations (such as those classified as “General”) seriously, because if allowed to stand, those citations may lay the foundation for far more significant regulatory liability. Another significant factor to be considered is that where an injured employee is able to show a “pattern” of alleged violations, they have a much higher chance of succeeding in bringing claim for “serious and willful misconduct” as part of a workers’ compensation claim.
Perhaps the most significant factor for employers to consider is that where Cal/OSHA issues citations, the State bears the burden of proving the existence of the violations which are alleged, as well as the “classification” of the citations (Willful; Repeat; Serious, Accident-Related; Serious, etc. – which I’ll discuss in a later article). If an employer allows citations to go unchallenged, it is giving up its right to hold the State to that burden of proof!
Many employers who have had encounters with Cal/OSHA resulting in issuance of citations are not properly prepared to address defending against those citations, and in many instances the employer may simply give up, and simply allow the citations to stand without challenge. Others might appeal the citations, but then allow the appeal to go to “hearing” (the Cal/OSHA equivalent of a trial) without obtaining any representation, not knowing that in many instances, if the citations are properly challenged a far better outcome may be had. In either case, the employer is giving up important rights, and is in danger of running into far greater regulatory consequences in the future.
That’s all for now, and I’ll bring some meat to the table in my later articles. For the time being, however, as noted above, I am available to consult with you regarding your concerns about pending, or potential liability for alleged violations of workplace safety regulations (“safety orders”). In an area where employers have as many questions as they do here, there are no questions that are “silly” or that would waste my time.
Please note that while this and other related articles presented on Bradford & Barthel, LLP’s blog are intended to be generally helpful, they are not intended to be and should not be construed as complete statements of applicable law. Each case is unique, and each case requires a separate analysis. If you are contending with a legal issue related to occupational safety and health or any other issue addressed in this or related articles, we strongly recommend that you obtain competent counsel.
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