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KH Workplace Update

Date: Dec 14, 2011

OSHA Enforcement Policies

A review of recent OSHA enforcement actions indicates that the trend toward higher proposed penalties has been accompanied by more aggressive OSHA enforcement tactics, including an increase in:

• Application of OSHA's unilateral re-interpretation of the term "repeated violations" to "look back" five years instead of three years.

• The issuance of "repeat" citations based on initial "other than serious" citations.

• The use of administrative subpoenas by OSHA investigators.

• Requests/demands for employees' home addresses and telephone numbers.

• The number of inspections in which the scope of the inspection exceeds the scope of the incident or complaint that triggered the inspection.

• The use of pre-citation, investigative interviews of management personnel conducted by DOL attorneys before a court reporter in a manner designed to avoid the protections of a traditional deposition afforded to employers in citation contests before the Review Commission.

• Demands for internal and third party audit reports, despite OSHA's official July 28, 2000 policy on Treatment of Voluntary Employer Safety and Health Self-Audits. This practice should send a sobering message to those within the regulated community who may have indicated support for an OSHA Injury and Illness Prevention Program rule that would appear to largely eliminate "voluntary" self-audits.

The need to plan for OSHA inspections and have personnel trained to handle them is more important than ever.

Recent Occupational Safety and Health Review Commission Decisions

Proper Location for Airborne Sampling Devices

The Review Commission held that, under the general industry lead and cadmium standards, the required airborne exposure measurements must be representative of the airborne concentrations within an employee‘s breathing zone, but outside of that employee‘s personal protective equipment, such as a face shield. In other words, the inlet for the sampling device must be placed outside rather than inside the face shield. Secretary of Labor v. Southern Scrap Materials, OSHRC Docket No. 94-3393. The rationale for the decision is likely to be equally applicable to all of OSHA's comprehensive substance-specific standards.

The Application of the Attorney-Client Privilege to Third Party Reports

The Review Commission held that an employer asserting that a third party report is protected from disclosure in a Review Commission proceeding by the attorney-client privilege must demonstrate the following: (1) the third party obtained the information addressed in the report from the employer-client rather than by collecting the information on its own; (2) the employer-client sought legal advice (such as advice regarding an Issue of regulatory interpretation) rather than technical advice; and (3) the employer-client's attorneys needed the third party's assistance to "translate" or meaningfully improve their comprehension of information provided by the employer-client so they could effectively provide legal advice to their employer-client. According to the Review Commission, the privilege will not apply where the attorney consults the third party to obtain information the client did not have, or employs the third party to gather data through studies and observations of the physical conditions at a client's site, rather than through client confidences. Secretary of Labor v. Delek Refining, OSHRC Docket No. 09-0844.

If you have any questions or if we may be of assistance regarding these issues, please contact Lawrence P. Halprin (halprin@khlaw.com or 202.434.4177) or David G. Sarvadi (sarvadi@khlaw.com or 202.434.4249).