Supervisor Responsibility: Supervisor Responsibility: Potential Civil & Criminal LiabilityPotential Civil & Criminal Liability

presented bypresented by

Mark A. Lies IIMark A. Lies IISeyfarth Shaw LLPSeyfarth Shaw LLP

55 East Monroe Street, Suite 420055 East Monroe Street, Suite 4200Chicago, IL 60603Chicago, IL 60603

mlies@seyfarth.commlies@seyfarth.com

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

“I don’t tell jokes….I don’t tell jokes….

I just watch the I just watch the government and report the government and report the facts ….”facts ….”

Will RogersWill Rogers

OSHA regulations may appear somewhat confusing….

…but your responsibility to comply with safety standards have been in

existence for a long while.

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.

ACCOUNTABILITY

King Hammurabi of Babylon

18th Century B.C.

Deuteronomy 21: 15Deuteronomy 21: 15

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.

11stst Fall Protection standard ?? Fall Protection standard ??

Deuteronomy 22: 23Deuteronomy 22: 23

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.

1st Industrial Hygiene standard ??1st Industrial Hygiene standard ??

Exodus 21:33Exodus 21:33

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.

33rdrd Party Liability standard ?? Party Liability standard ??

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

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

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

Potential Legal Liabilities

Workers’ Compensation OSHA Tort Criminal Whistleblower Laws

Many Different Categories of Employers and Employees On-

Site OwnerOwner Owner’s RepresentativeOwner’s Representative General ContractorGeneral Contractor SubcontractorsSubcontractors Leased EmployeesLeased Employees Borrowed EmployeesBorrowed Employees Safety ConsultantsSafety Consultants

OSHA Liability

Initially, Employer Responsible For Its Own Initially, Employer Responsible For Its Own EmployeesEmployees

Employer Had To Ensure That Its Employer Had To Ensure That Its Employees Were Protected Against:Employees Were Protected Against:

““Recognized Hazards” To Employee Safety and Recognized Hazards” To Employee Safety and Health (General Duty Clause)Health (General Duty Clause)

Hazards Identified In Specific Regulations Hazards Identified In Specific Regulations (29 CFR 1926, e.g. falls, electrical, lead, silica, (29 CFR 1926, e.g. falls, electrical, lead, silica, etc.)etc.)

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

OSHA Liability

An Employer may have multiple roles on the An Employer may have multiple roles on the work site:work site:

An Employer may become a “Correcting” or An Employer may become a “Correcting” or “Controlling” Employer under the Construction “Controlling” Employer under the Construction Contracts or by voluntarily assuming such duties Contracts or by voluntarily assuming such duties on the work siteon the work site

On December 10, 1999, OSHA issued On December 10, 1999, OSHA issued Compliance Directive (CPL 2-0.124) setting out Compliance Directive (CPL 2-0.124) setting out its citation issuance policy for multi-employer its citation issuance policy for multi-employer work siteswork sites

OSHA Liability Citations

• Willful• Serious• Non-Serious• Repeat• Failure to Abate• Egregious

Each classification contains Each classification contains a different penalty criteriaa different penalty criteria

OSHA Liability

Employer Defenses

• Unavoidable employee misconduct

• Technological or economic infeasibility

• Abatement creates great hazard

• Lack of employee exposure

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

UNANTICIPATED HAZARDS

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

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

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

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)

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

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

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

Tort Liability

Duty to preserve evidence involved in Duty to preserve evidence involved in workplace accidentworkplace accident physical artifacts (machinery)physical artifacts (machinery) documents (work orders, equipment or site documents (work orders, equipment or site

inspection records)inspection records) condition of equipment and premisescondition of equipment and premises

Potential legal liability for loss or Potential legal liability for loss or destruction (“spoliation”) of evidencedestruction (“spoliation”) of evidence

Tort Liability

Supervisor must ensure that condition of Supervisor must ensure that condition of accident site or equipment is memorialized accident site or equipment is memorialized through photographs or other through photographs or other documentary means (e.g., notes , documentary means (e.g., notes , measurements)measurements)

Maintain custody and control of evidenceMaintain custody and control of evidence secure storagesecure storage chain of custody for evidencechain of custody for evidence

Tort Liability

Police and regulatory (OSHA) agencies Police and regulatory (OSHA) agencies access to evidenceaccess to evidence police authoritypolice authority OSHA subpoenaOSHA subpoena chain of custodychain of custody

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

Post Accident Investigations

Important to determine root cause(s) of Important to determine root cause(s) of accidentaccident

Basis for remedial actionBasis for remedial action Potential pitfalls of reportPotential pitfalls of report

tendency to speculatetendency to speculate comments may create “admissions” of liabilitycomments may create “admissions” of liability desire to “fingerpoint”desire to “fingerpoint”

Post Accident Investigations

Organize factual evidence (interviews, Organize factual evidence (interviews, documents)documents)

Consider creating legal privileges (attorney Consider creating legal privileges (attorney client, work product, self critical analysis)client, work product, self critical analysis)

Do not draft any report until thorough Do not draft any report until thorough review of evidence and risksreview of evidence and risks

Post Accident Investigations

Control distribution of report to “control” Control distribution of report to “control” group to maintain legal privilegegroup to maintain legal privilege

Document corrective action or rebuttal to Document corrective action or rebuttal to conclusions in reportconclusions in report

Criminal Law LiabilityOSHAOSHA 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 individualNOTE: No Miranda Warnings NecessaryNOTE: No Miranda Warnings Necessary

Criminal Law Liability

OSHAOSHA Obstruction of justice for interfering with

inspection

Falsification of records

Lying to federal inspector

Misrepresentation of subcontractor status to avoid OSHA liability

Criminal Law Liability

STATE LAWSTATE LAW Murder Attempted Murder Battery Assault Reckless Endangerment

DOUBLE JEOPARDYDOUBLE JEOPARDY Does Not Apply Possible Federal and State Prosecution

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

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

Imminent Danger ?

Imminent Danger ?

Imminent Danger ?

Imminent Danger ?

Competent Person Liability

Employer FailsEmployer 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

Whistleblower Laws

Potential Employer Liability If:Potential Employer Liability If: Employee engages in “Protected Activity” Employee engages in “Protected Activity”

(e.g., makes complaint about safety or (e.g., makes complaint about safety or health violation to Employer; files complaint health violation to Employer; files complaint with OSHA; participates in OSHA with OSHA; participates in OSHA inspection), andinspection), and

Employee Suffers “Adverse Action” (e.g., Employee Suffers “Adverse Action” (e.g., termination, discipline, loss of benefits), andtermination, discipline, loss of benefits), and

Whistleblower Laws

Employer takes Adverse Action and Employer takes Adverse Action and Retaliates against Employee because of Retaliates against Employee because of Protected ActivityProtected Activity

Employee may File 11(c) Complaint with Employee may File 11(c) Complaint with OSHA seeking damagesOSHA seeking damages

OSHA will investigate complaintOSHA will investigate complaint

Whistleblower Laws

If OSHA finds reasonable cause that there If OSHA finds reasonable cause that there was retaliation, case may be filed in Federal was retaliation, case may be filed in Federal CourtCourt

All States have Whistleblower Laws that All States have Whistleblower Laws that may applymay apply

Site Scenarios Supervisor observes contractor Supervisor observes contractor

employees in unsafe activityemployees in unsafe activity contact contractor supervisor immediately to inform contact contractor supervisor immediately to inform

of hazardof hazard (demand/request/inform) that supervisor (demand/request/inform) that supervisor

immediately remove employees from hazardous immediately remove employees from hazardous areasareas

(demand/request/inform) prompt corrective action(demand/request/inform) prompt corrective action Imminent Danger – demand that subcontractor Imminent Danger – demand that subcontractor

employees immediately exit hazardous areaemployees immediately exit hazardous area document incident for formal corrective actiondocument incident for formal corrective action

Site Scenarios

Supervisor observes Company Supervisor observes Company employee failing to wear personal employee failing to wear personal protective equipment (PPE)protective equipment (PPE)

immediately stop employee from workingimmediately stop employee from working remove employee from exposure to hazardremove employee from exposure to hazard provide appropriate PPEprovide appropriate PPE issue discipline to employee and documentissue discipline to employee and document conduct retraining of employeeconduct retraining of employee

PPE – Respiratory Protection

Confined Spaces

Yes, there is a backhoe in the middle of the flames !

#10838239