CoatingsPro Magazine

SEP 2016

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34 SEPTEMBER 2016 COATINGSPROMAG.COM should not have been issued against you in the first place. Be wary of the zero dollar citation. Practices and Defenses ere are several helpful strategies that you can use to your advantage when negotiating with OSHA. ere are instances where it may be very import- ant to observe the OSHA investigator's behavior during the original inspection and inform the assistant area director of such behavior during the informal conference. Ensure that your supervi- sors and employees note any occurrence where the inspector made unreason- able threats against the employees, attempted to detain any employees for questioning against their will, or interviewed employees for extended periods of time. e Occupational Safety and Health Act mandates that an inspector's review of your jobsite remain reasonable and within the scope of the alleged safety and health issues. Oftentimes, inspectors may go beyond that scope or exhibit unreason- able behavior toward your crew. If this occurs during your company's OSHA inspection, it will be very important to put the administration on notice of such conduct. Additionally, OSHA's allegations against you for failure to provide proper training can always be met with documents to the contrary. It is imper- ative that you appear at an informal conference with your company safety manual, retraining documents, disci- plinary action forms, and any other documents that help to demonstrate your company's commitment to safety. You may show these documents to OSHA, but it is ill-advised to turn over any documentation for OSHA person- nel to copy and review unless you receive a subpoena or official document request. is precaution is necessary because you may unknowingly produce documents that are actually protected under privilege laws and the Federal Rules of Evidence; this happens commonly. ese sorts of documents can be very damaging should the case proceed to litigation before the Occupational Safety and Health Review Commission. It can a lso be ver y helpful to ask the inspector why he or she stopped at your jobsite on the day of the inspection. You need to know the basis for the inspection in order to adequately defend your company if the case becomes subject to litigation. Once you know what prompted the inspection, it w ill be necessar y to ask for any photographs from OSH A that support the alleged v iolation. Questions like these can help support the framework for what is know n as a "targeting" defense. OSH A , like many other federa l agencies, has been g uilt y of targeting specific employers due to prev ious non-compliance. If a contrac- tor can obtain facts and ev idence that show that OSH A had no rea l reason for inspecting the worksite, it may help to support a targeting defense in litigation. Employee statements can also make or break your defenses against OSHA. As an employer, you are not entitled to review the employee state- ments under certain federal laws commonly known as the W histleblower Act. erefore, it is impossible to know exactly what facts the employee-writ- ten statements contain. However, it is always advisable to ask your crews exactly which topics the OSHA inspec- tor discussed. It is also vital to find out if the interviews were conducted in the employees' preferred language and whether or not the statements they signed were written in a language they could comprehend. As a business owner and employer, you may question your employees regarding the interviews, but remember that the W histleblower Act allows any crew member the right to refuse to disclose this information. e discussion between an employee and an OSHA inspector can be kept completely confidential if the employee wishes, and an employer may not, under any circumstances, retaliate against an employee for his or her cooperation with OSHA inspectors. An employer violates the W histleblower Act if he or she terminates or retaliates against an employee for speaking with an OSHA inspector. An employer will also find him- or herself on the wrong side of the law if he or she terminates an employee who refuses to share what was said during a conversation with OSHA. Essentially, an employer who fails to honor the requirements within the W histleblower Act will face serious consequences, which can include crimi- nal prosecution and penalties. A Proper Defense W hen OSHA arrives at your next jobsite, remember that the contrac- tor who is able to navigate the OSHA settlement process and recognize the strengths and weaknesses of OSHA's claims will prevail. Contractors today can face an uphill battle with OSHA and the federal government's increas- ing involvement in the construction industry. However, employers who can identify and advocate against OSHA's use of the zero dollar citation will be on their way to properly defending their business. CP Author's note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation. Anthony Tilton is a const r uct ion law associate w it h Trent Cot ney, P. A , in Orlando, Fla. Ti lton's pract ice focuses on a l l aspects of const r uct ion law. He work s pr imar i ly on matters relat ing to OSH A defense, which inc ludes t he management and development of safet y and hea lt h st rateg ies for const r uct ion cont ractors across t he United States. Ti lton's OSH A pract ice concent rates on l it igat ion and t he appea ls of citat ions involv ing catast rophic const r uct ion related accidents. For more infor- mat ion, contact: A nt hony Ti lton, (407) 378-6575, w w w.t rentcot ney.com Safety Watch

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