January 30, 2025 • 29 mins
Mastering Dual Defense: Navigating Workers' Compensation Claims and OSHA Compliance with Melissa Bailey
Jennifer White of Peterson White LLP and Steve Armstrong of Armstrong Peake PLLC interview attorney Melissa Bailey of Ogletree Deakins regarding her knowledge and expertise of OSHA defense litigation. In this episode, Melissa covers how an employer can be impacted if they admit liability in OSHA claims. She covers the Unpreventable Employee Misconduct (UEM) defense and the role of supervisors in OSHA defense. An employer's ability to do business can be affected if they admit to liability. Also covered is how some states add on a multiplier penalty in the workers’ compensation claim if there is a safety violation. Listen as well for some of her thoughts on how an employer in a workers' compensation claim should answer discovery and how that may impact the OSHA defense at a later date. She also gave us the Gem Industrial Inc. case that has a good description of general UEM elements and the Angel Brothers Enterprises case which has a discussion of various circuit court decisions regarding OSHA.
To learn more about DRI and the Workers' Compensation Committee visit www.DRI.org.
#DRILawyer
#DRICommunity
Jennifer White of Peterson White LLP and Steve Armstrong of Armstrong Peake PLLC interview attorney Melissa Bailey of Ogletree Deakins regarding her knowledge and expertise of OSHA defense litigation. In this episode, Melissa covers how an employer can be impacted if they admit liability in OSHA claims. She covers the Unpreventable Employee Misconduct (UEM) defense and the role of supervisors in OSHA defense. An employer's ability to do business can be affected if they admit to liability. Also covered is how some states add on a multiplier penalty in the workers’ compensation claim if there is a safety violation. Listen as well for some of her thoughts on how an employer in a workers' compensation claim should answer discovery and how that may impact the OSHA defense at a later date. She also gave us the Gem Industrial Inc. case that has a good description of general UEM elements and the Angel Brothers Enterprises case which has a discussion of various circuit court decisions regarding OSHA.
To learn more about DRI and the Workers' Compensation Committee visit www.DRI.org.
#DRILawyer
#DRICommunity
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:18):
Welcome back. We are back to another episode of the
comp Conversations podcast, a podcast developed through d r I
where we explore the world of workers conversation, including the
personal aspects involved in the realm of work injuries and
it's litigation, as well as future trends in every aspect
in between. My name is Steve Armstrong and I'm here
with Jennifer White. Jennifer, how are you doing today?
Speaker 2 (00:40):
I'm pretty good? How are you doing? Steve?
Speaker 1 (00:43):
And to have with us today Melissa Bailey of Ogle
Tree Deacons and briefly, Jennifer, tell us where you are
and what firm are you with.
Speaker 2 (00:56):
I'm in Tennessee and I'm with the firm at Peterson White.
Speaker 1 (01:00):
And you all have the offices in multiple locations.
Speaker 2 (01:02):
There is a right we do statewide Tennessee and also
in Kentucky.
Speaker 1 (01:07):
Sounds good. And Melissa, where are you today?
Speaker 3 (01:11):
I am in my home in Arlington, Virginia because of
all the snow, but I sit at Ogle Tree's Washington,
d C. Office. We've got I think you think I
know this number.
Speaker 2 (01:20):
I think we have.
Speaker 3 (01:21):
Fifty eight offices now worldwide, I think fifty four of
them or maybe in the US. So We're pretty big
and spread out.
Speaker 1 (01:29):
Sounds good and me Lissa, tell us a little bit
about your background. Hello, enviewment practicing and what is your
focus primarily on.
Speaker 3 (01:38):
I focus on occupational safety and health issues and that
will include OSHA enforcement actions where an employer is challenging
and OSHA citation, you know, rulemaking, compliance, advice, all that
type of thing. And I always hate saying this number
out loud. I've been doing it for almost twenty five
years now. I've been completely focused only on OSHA issues.
Speaker 1 (01:58):
Great, great, And today the topic of our podcast today
is how can an employer prepare for the defensive workers
compensation claim and the OSHA claim at the same time.
Are you ready to help us on that?
Speaker 3 (02:15):
I hope so I'm gonna try.
Speaker 2 (02:18):
That's good, all right, Thank you again Melissa for joining us.
We're really pleased that you could do this. Just kind
of explain generally to our audience what is OSHA and
what is its purpose.
Speaker 3 (02:29):
Well, OSHA is the Occupational Safety and Health Administration. We
really have two types of OSHA systems through in the
United States. We've got federal OSHA which covers I believe
twenty nine states, and then a number of states have
their own OSHA plans, including the states that you and
see were in, Kentucky and Tennessee. So OSHA and its
state equivalents promulgate standards that employers are required to comply with,
(02:54):
and they issue citations or violations when employers they allege
employers not following the relevant regulations and standards.
Speaker 2 (03:04):
What are kind of the basics that employers need to
do to comply with airshaft.
Speaker 3 (03:09):
Oh gosh, it's so dependent on industry. I mean, you know,
some of the basic things that would apply to everybody,
or not everybody, but a lot of people would be
providing personal protective equipment, providing Many of those listening are
prey familiar with safety data sheets. If you have chemicals
that are used in your workplace, you need to provide
access to safety data sheets, emergency response procedures. I'm actually working,
(03:32):
as I mentioned today, on some comments on OSHA's recent
proposal to require employers to take steps to protect employees
from high heat conditions. So it really runs the gamut.
Speaker 2 (03:46):
And then yeah, go ahead, See.
Speaker 1 (03:49):
I was going to say, can you give us a
brief discussion of reporting what the employers need to do
when an injury occurs, and when is that triggered If one.
Speaker 3 (03:59):
If one of your employees, If an employee of that
employer is has the following types of injuries, they're admitted
to the hospital on an impatient basis for treatments. If
it's an amputation, if it's the loss of an eye,
if it's a fatality. Yeah, those are the circumstances or
(04:25):
which you're going to have to employ. You're gonna have
to report that injury to your local Ocean area office.
And so.
Speaker 1 (04:34):
Are there types of injuries that do not have to
be reported.
Speaker 3 (04:39):
For some reason. And Osha says this out loud on
the reporting rag. You don't have to report the loss
of an ear eye but not your don't ask me why.
And then it's it's got to be severe enough. You've
either got to meet that amputation criteria, or it has
to be something significant enough that you were admitted to
the hospital so you go to the emergency room and
(04:59):
get stitches, or even if you spend the night in
the emergency room getting treatment. Reporting isn't triggered until that
employee is actually admitted to the hospital for treatment, so
for something other than observation. So it's got to be
significant enough that that criteria is met or it's in
the amputation.
Speaker 2 (05:19):
How long does it generally take to work through an
ASHA claim that's disputed and litigated, Well.
Speaker 3 (05:25):
OSHA's got six months from the time of the hazard
to issue a citation. So when you think about it,
when you compare that to maybe like an EOC case
or something, that's a pretty short time period. So you
report an injury, Osh's got six months from that day
to issue a citation. You know that that statute lations
(05:47):
may be a little bit different. If let's assume OH
is coming in to do a more general inspection, you
know that inspection may take six months, and because there's
no defined time at which it hazard existed, there can
be a little bit of play with that six months,
but it generally it's six months. And then once you
(06:11):
use the litigation phase, if you're in the federal lotions system,
it would it can move pretty quickly and for a
super complex case. I just finished up a case where
we had thirteen different sets of citations for one employer
that were like all around the country. We ended up
settling that kind of on the courthouse steps, but it
took about two and a half years to get that
teed up and get all the discovery done. For a
(06:32):
much more simple case where you're talking about you know,
one or two citations, you know, I would expect to
have that trial and have that briefed within probably.
Speaker 1 (06:40):
A year, okay, And so that sounds like a kind
of a similar timeframe to workers' compensation claim. Some of
them take three months, some of them take a year.
Just depends on the case. You know, here in my
jurisdiction in Kentucky, if you if the employer admits to
a a safety violation, let's say OSHA issues that fine,
(07:04):
the employer early on decides to write the check for
the fine, but in the process they admit to being
at fault or being having you know, violated the OSHA rule.
That can really come back to bite them later in
the workers compensation claim because there's an add on thirty
percent penalty for safety violations. Have you seen that in
(07:27):
other jurisdictions.
Speaker 3 (07:30):
I have. I know that they have that kind of
I would call it a multiplier system. I know they
have that in California is another example. I think Illinois
has something somewhat similar to that, and then Ohio and
I don't know a ton about this, but my colleagues
in our High Office has told me, Ohio's got all
kinds of like multiplier kind of systems like that that
(07:54):
are kind of complicated. So you know, what I find
is that that that's one consequence that the monetary of
accepting an ocean citation or an ocean violation early in
the process. But there can be a lot of other
consequences too. I mean, if you're if you're a large
employer with multiple facilities, you know, you accept that one
(08:14):
citation that can snowball into a much more significant violation,
a willful violation, a repeated violation that's going to have
a much higher penalty it's going to have You're going
to get bad press out of it. So that's a consequence.
And then you know, you and I have talked about
steven certain industries in the contracting community. You know, you're
(08:37):
you're required as part of the bid process to upload
a lot of your safety data to these websites, and
you were required to continually update that information too. So
if you accept an oceana violation, you're going to have
to report that on this website. In certain industries, I
would say were the customers or elected utilities, refineries, chemical
(08:59):
company They are very selective about who they will allow
to do contract work at their sites. And if they
feel like you have too many OSHA violations, they you
may lose a contract you already have, or you know,
you may be prohibited from bidding on work in the future.
So that's obviously an enormous business consequence for a lot
(09:21):
of employers in those sorts of industries.
Speaker 1 (09:23):
I have never heard that before we started at this
discussion on this podcast here really for today. And then
the other item you mentioned was the cross state issue.
If you've got a violation in one state, how they
can affect your ability to do business in another state
as a contractor. I've never heard of that before.
Speaker 3 (09:45):
Yeah, I mean that can absolutely happen. I mean, I
as I said, I find it to be the most
prevalent with you know, electrical work, utility work in general,
and refineries, chemical companies, places where you I mean, safety
is important everywhere, but I mean if you're you know,
handling thousands of gallons of some kind of hazardous substance,
(10:08):
I mean I can understand how you want to be
selective about you know, who who you're using as contractors.
But I mean, I find that on the the OSHA
side that drives a ton of litigation because you know,
my client might say, you know, we probably do have
some liability here, but we cannot have this violation on
our record. So you know, we're going to do whatever
(10:29):
it takes to get rid of it, you know, through
a settlement or you know, we may just have to
litigate and kind of roll the dice.
Speaker 1 (10:36):
And the problem here is that it almost becomes a
roadmap if you agree to the OSHA fine for the
safety penalty, Jennifer, is there anything like that in Tennessee
where you have to pay an add on safety penalty?
Speaker 2 (10:51):
No, so in Tennessee we don't have any of that,
but I anticipate it's the same in outther states.
Speaker 1 (10:59):
Right right, thinks like that, Melissa, Back to you on
to prepare for these claims. What what do employers basically
need to do or at least to know from day
one forward of an ocean violation claim?
Speaker 3 (11:17):
Well, I mean, if I if I'm a workers comp
attorney and I get a call from a client saying,
we've had this accident. You know, so we're reporting the
injury because you know, a claim is going to be made.
We've also got OSHA investigating, and you know you're looking
to provide advice to that employer. I think you should
(11:39):
be aware of all those sorts of issues I just
talked about. I mean, does this client care if they've
got OSHA's citations on their record. If you're talking about
you know, a single facility that's a manufacturing facility, you know,
they may not be so concerned about their ocial liability.
In contrast, as we've talked about, there are other employers
who are going to care a whole lot about their
(12:00):
oshal liability. So I would make sure you understand where
the client sits with regard to those kinds of issues
from the outset. And then you know, one critical defense
I wanted to mention is the affirmative defense that we
call the unpreventable employee as conduct defense, and it's a
very commonly raised defense. It's got four elements to it.
(12:22):
The employer has to be able to show that a
work rule that would have prevented the hazard or mitigated
the hazard was in place. So, for example, you've got
employees working at heights over four feet or over six feet,
you've got a fall Protection Program. Employer employees are required
to wear fall protection when they're doing that work at heights.
So you've got the work rule, You've trained employees in
(12:43):
the work rule, and you can show that you know
one one side note osha understandably, I think is getting
pretty They're digging heavily into does the employee understand the training?
So if there's a language, you know, you better make
sure that you can show that that employee actually understood
(13:04):
the work rule. You have to have taken steps to
identify violations of the work rule. And that can really
take two forms. That could be and a lot of
employers do both. That could be you know, you do
a quarterly audit. You know, you maybe you walk the
production line, or you go and roll up on a
construction crew and just you know, see are they complying
(13:25):
with all your work rules? Or that can just be
general supervision. And you know, even if you've got a
crew that's working remotely that doesn't have a supervisor, you know,
if you've got a general foreman or someone who's the
front line management for that crew and they visit these
crews every day, you know that general foreman is probably
going to say, well, had I rolled up on this
(13:45):
crew and seen that they were up on top of
this electrical tower and they weren't wearing any fall protection.
I would have said, WHOA wait a minute. So that's
how you kind of implement systems to detect violations. Then finally,
when you do detect violation, you've got to discipline employees.
And that's a lot of times the defense falls falls
apart on that element because you know, I understand it.
(14:08):
I mean, frontline supervisors don't want to necessarily be in
the business of coming down hard on the folks that
work for them. So you don't have to fire somebody
the incident you learned that they made a mistake. But
you need something in the file. You know, I counseled
Steve about the importance of wearing his safety glasses. You
just you need something to meet that element.
Speaker 2 (14:29):
Because it sounds a little bit like in Tennessee, we
have a wilful misconduct offense, so kind of similar to that.
For sure. Do you have examples where you've used this
unpreventable employed misconduct defense and it's it's kind of ever
elapsed with workers' compensation? Do you have any examples or
situations for that has occurred.
Speaker 3 (14:48):
Well, hmm, I think I think we have to some
degree in California, and oh Tree's got a whole team
of folks that only do California. To work is California,
as with everything as like a foreign country to some degree.
But as I understand it, I think, don't quote me
on this, but I think in California, with that multiplier,
(15:10):
if you can show that you know the employee willfully
violated your work rule, then you're not going to be
on the hook for that entire multiplier. It's not I
mean the workers, I guess I wouldn't. What I analogize
it to in workers' comp is in some states they
say if you can show that that the employee was impaired,
(15:31):
you know, by drugs or alcohol, then you know that
claim may not be compensable. So it's not that extreme,
but I think that's a good analogy.
Speaker 2 (15:40):
Okay. And then as workers practitioners, which I think is
the main audience of this podcast, what are some things
we can that we need to be aware of in
terms of saying, answering discovery or or defending our case
that could potentially come back later to hurt our clients.
In an osha claim.
Speaker 3 (16:00):
Well, you know, so you've kind of talked about, I
mean the timeline of you know, where that that Osh's
citation is and the litigation and the time men of
the comp claim you know may or may not be
fairly similar. But I mean, going back to unpreventable employment misconduct,
you know that's a defense that your client's going to raise.
(16:20):
Then you know, you don't want to see anything in
your discovery responses or ideally in your deposition testimony that
you know infringes on that defense. And I think that
the place that comes up the most often is where
you've got a supervisor who's involved. So, you know, with
unpreventable employ misconduct, if the supervisors committing them as conduct,
(16:45):
or worse, if the supervisor is standing there watching the
violation occur, then that makes it much more difficult to
prove the defense. And state law varies wildly. Now I
shouldn't say state law. Federal law arees on this issue.
Like the Eleventh Circuit, for example, would say, you know,
OSHA's got to prove that it was foreseeable that that
(17:09):
that foreman would blow off that violation or would commit
the violation himself. In other jurisdictions, it's not the same.
But I mean, you know, I think you want to
be especially careful about about discovery responses that that designate
someone as a supervisor. I mean, you better make sure
(17:30):
that person really is a supervisor because once you do that,
then you've kind of blown up your unpreventable employments conduct
defense is one thing I would be I would be careful.
Speaker 1 (17:40):
Of so cruitment if for wrong. But what I'm hearing
is that with the unpreventable employee misconduct defense, employers really
need to have your supervisors trained to discipline people on
the spot about safety. So they really need to be trained.
Is that a fair summation?
Speaker 3 (17:59):
That is a fairsome And I think that when you
think about the evidence, Ocean is going to base a
violation on a lot of times that evidence comes from
a frontline supervisor because you know that they're they're the
ones who are you know, there on the ground and
you know understand what's going on. So in terms of
(18:19):
discovery responses and you know any depositions that are going
to take place in that comp claim, I mean, if
the employer is raising unpreventable employment misconduct, you better make
sure the supervisor's testimony reflects that the supervisor says, for example,
I wasn't there when this violation occurred. You know, had
I been there or had I come across this crew,
(18:41):
I would have stopped them and said, wait a minute,
you know, here's the proper way to do this, and
I would have you know, counseled the employee or you know,
written them up or done whatever you need to do
under your progressive discipline policy. So you know, if if
you've got testimony or evidence to the contrary or the
comp claim, that's really going to damage your OSHA.
Speaker 1 (19:02):
Defense, sounds like the supervis is key.
Speaker 3 (19:08):
That is definitely true. And and you know in terms
that for for certain types of work, and this this
arises most in construction work where you may have a
crew that's working that doesn't have a supervisor standing right
there over them, and so then the you know, OSHA
wants someone on that crew to be a supervisor because
Ocean knows that's going to blow up your unper miteral
(19:29):
employment as kind of defense. So a lot of the
debates we have early on during these Ocean inspections, are
you know, is this this lead person really a supervisor
or not and that comes up very early in the
Oshan inspection process because when Oshan interviews a supervisor, counsel
is allowed to be present. When Oshan interviews an employee,
(19:53):
that that interview is going to be private or it's
only going to be the union rep there at the interview.
So I mean that issue tends to get confronted very
early in the process for just that reason.
Speaker 1 (20:07):
Well, based on you not that was my next question.
Is a crew member or a team or crew lead
or a team lead, is that actually a supervisor?
Speaker 3 (20:16):
Well, boy, I've had hot debates with Osha about that
over the years. And actually one sort of piece of
advice I've given to clients recently, and again these are
typically client We're not saying about a manufacturing site where
you've probably got a frontline supervisor supervising that production line
and they're there. We're really talking more is employees who
(20:38):
are out working with crews or even individually, they do
not have that supervisor right there. So one piece of
guidance that I've given to employers is, you know, if
that person really isn't a supervisor, they don't have the
authority to hire anybody. They don't have the authority to
fire anybody. They can't discipline anybody. The most they could do,
(20:59):
just like an other employers go to the supervisor and say,
you know, Jennifer isn't really following the safety rules, and
I think you need to do something about it. If
that's the limit of their authority, even if they're the
most senior person and you know, maybe they have some
role in deciding who's going to do what work task.
(21:20):
I would change all those job descriptions. Don't call those
people for them in because they're not call it. I
have one client who provides all their job descriptions to
use to use the word crew lead, and then when
you read the job duties, it's things like, you know,
coach employees on the proper way to do things, and
you know, be the leason with the frontline supervisor in
(21:41):
terms of the work that's going to be done that day.
And we just sort of scrubbed all those job descriptions
of terminology that I would consider as describing as supervisor.
Speaker 2 (21:52):
Let's say you're getting close to a settlement in a
in an OSHA claim. What's important for the employe you're
in that respect?
Speaker 3 (22:03):
Well, I mean I think that's really going to depend
a lot on what their settlement goals are. You know,
I think that really because of a lot of these
situations where you could be prohibited from bidding on work.
Let me give you a real extreme example. Those just
(22:24):
got something they call the Severe Violator Enforcement Program, And
if you rack up enough like willful violations, they will
put you in that program. They'll issue a really nasty
press release, they'll send a letter to your CEO. It's
not a place you want to be. The City of
Boston now says if you're an employer who is in
that Severe Violator Enforcement program, we won't give you a
(22:45):
work from it. You can't do work in the City
of Boston if you're on that list. So, you know,
I think you really have to kind of think about
those sorts of circumstances and how they could impact your
particular business. And you know, if you can get to
a settlement where OSHA says, okay, you know, we'll say
(23:07):
that this violation was other than serious. I mean, that's
a that's an official kind of OSHA citation category. We
will do that if you will pay a much higher
penalty than you would have paid otherwise, perhaps, and if
you will agree to a lot of what we would
call enhands of Bateman measures in the settlement agreement. So
(23:27):
maybe this happens with a single work crew in Massachusetts,
you say, okay, if you'll agree to recharacterize this violation, Osha,
you know, we will retrain all of our employees across
the country on this particular issue. We'll hire a third
party safety consultant to come in and look at our procedures.
All of those bells and whistles are going to be
worth it for some companies, for others, they're not. For others,
(23:51):
they're just going to say, you know, this really isn't
that important to us. The find's not that high. Let's
just pay it and move on, even if we're paying
that multiplier and Tucky or California or Ohio or wherever
we are. So it really depends on those kinds of factors.
Speaker 2 (24:07):
And this might be asking you the same kind of thing.
But would that be where a non admission might be
important in those situations?
Speaker 3 (24:14):
Well, and I have some questions for you all about that. Actually,
I mean, we typically do include non ween not typically
we always include non emissions language in an OSA settlement agreement,
and that language typically says, you know, we're selling this
just to avoid litigation costs. We don't admit any liability,
and you know the fact that we settled and the
(24:36):
OSHA citation and the settlement agreement are only admissible for
purposes of a future OSHA violation. So I mean, all
that really means is that, you know, if we accept
a violation of you know, the standard on personal protective equipment,
you know, OSHA will never waive the ability to later
(24:58):
on say oh, well, now you've violated that same standard again.
Now it's a repeated violation. But the language is intended
to keep that citation, keep that settlement agreement out of
a comp claim, out of any tort suit. But let
me ask you, all I mean, is that going to
be effective. Do you think in a comp claim to
be able to say none of this is admissible?
Speaker 1 (25:18):
In this case, I'd rather much have a non admission
than an admission of liability, because the admission gets immediately
filed into court and it really becomes, to my mind,
a roadmap, not really raised Hu to Kata, but something
along the lines of a roadmap for the judge to
find that there was a safety violation on the employer's part,
(25:44):
and therefore the employer should have to pay that additional
thirty percent penalty. So I don't want an admission of
and that's to go back to where we started at
the beginning of the podcast. Employers, I don't think that
they realize when they just agree to it right off
the bat, without getting counsel, without thinking about it. They
just want it over and done, and I just don't
think that's always best for them.
Speaker 3 (26:06):
I would agree with that, and I think that's true
because of these sorts of multipliers. It's true because of
the business consequences we talked about, but it's also true
because you've got to remember that, you know, you accept
the citation. Now if you commit that same violation within
the next five years, then it's going to be a
(26:26):
repeated violation, and the penalty is going to be the
ocean penalty is going to be much much higher, or
it could be later become a wolful violation. Osher will say, well,
you know, we cited you for this before, and obviously
you didn't get the message because now it's happened again,
so now it's wilful. And it's those sorts of violations
that ultimately could put you into the severe Violator enforcement
(26:49):
program and programs like that. But really, the most devastating
piece of that, to me, at least I think a
lot of my clients would agree, is just the negative press.
I mean, you know, OSHA will issue a nasty press release.
If you've got a union, they will seize on it
and try to do whatever they can with it, and
(27:10):
it really just hurts employee morale. I mean, you know,
for the government to be saying this is a bad employer.
So it's it's hard to quantify those those effects, but
they're very real.
Speaker 1 (27:21):
Melissa, We're getting towards the end of our podcast here,
but can you think of some examples of cases where
things went really wrong or conversely where things case where
things went really well? In you know, the defense of
an OSHA violation claim?
Speaker 3 (27:38):
Gee, is it bad? I can think of more situations
where things went wrong than I can think where things
went right. Well, I shouldn't say that, I mean, I
think one key part of having things go right is to,
you know, make sure that the client understands how to
deal with ooshow, what are good tips and strategies you're
(28:01):
doing that if you're the worker's competorney who's gotten that
first call. You know, I think you need to to
understand those things as well. I think the most I
think when cases tend to go wrong, it's where at
the beginning of a case, the employer immediately says to Osha,
oh sure, you know, go interview, Go interview our supervisor.
Go ahead and interview the managers. You know that those
(28:23):
people may or may not have another management rep president
during the interview. But that's where a ton of OSHA
gets a ton of their evidence. So we're going to say,
you know, isn't it true that you know, you guys
were in a hurry that day and this needed to
get done, and that's why you didn't lock it out. Well,
you know, a supervisor not knowing any better, we'll say, well, actually,
we were under a lot of time pressure that day,
(28:44):
and it does take a long time to de energize
this line to make sure the equipment can't move, and
we were just needed to do this one little thing,
so we didn't do it. I mean, right there, you've
got a wolful violation. OSHA's done.
Speaker 1 (28:57):
Gotcha, Well, most of we are. We want to thank
you for being on our podcast today. Thanks to Jennifer
as well. Melissa, can you tell our audience how they
can find you if they need you? How do they
contact you?
Speaker 3 (29:12):
Sure, I'd be happy to do that. It's Melissa Bailey
B A.
Speaker 2 (29:16):
I L. E. Y.
Speaker 3 (29:18):
My law firm is Obletree Deacons. So if you if
you google that, it should it should pop right up.
And I am in the Workplace Safety Practice Group and
I sit in the DC office.
Speaker 1 (29:27):
Sounds good, sounds good well, and thank.
Speaker 3 (29:30):
You both for having me. I really enjoyed it and
I appreciate the opportunity.
Speaker 2 (29:33):
Thank you. It's a pleasure.
Speaker 1 (29:35):
Thank you.
Welcome back. We are back to another episode of the
comp Conversations podcast, a podcast developed through d r I
where we explore the world of workers conversation, including the
personal aspects involved in the realm of work injuries and
it's litigation, as well as future trends in every aspect
in between. My name is Steve Armstrong and I'm here
with Jennifer White. Jennifer, how are you doing today?
Speaker 2 (00:40):
I'm pretty good? How are you doing? Steve?
Speaker 1 (00:43):
And to have with us today Melissa Bailey of Ogle
Tree Deacons and briefly, Jennifer, tell us where you are
and what firm are you with.
Speaker 2 (00:56):
I'm in Tennessee and I'm with the firm at Peterson White.
Speaker 1 (01:00):
And you all have the offices in multiple locations.
Speaker 2 (01:02):
There is a right we do statewide Tennessee and also
in Kentucky.
Speaker 1 (01:07):
Sounds good. And Melissa, where are you today?
Speaker 3 (01:11):
I am in my home in Arlington, Virginia because of
all the snow, but I sit at Ogle Tree's Washington,
d C. Office. We've got I think you think I
know this number.
Speaker 2 (01:20):
I think we have.
Speaker 3 (01:21):
Fifty eight offices now worldwide, I think fifty four of
them or maybe in the US. So We're pretty big
and spread out.
Speaker 1 (01:29):
Sounds good and me Lissa, tell us a little bit
about your background. Hello, enviewment practicing and what is your
focus primarily on.
Speaker 3 (01:38):
I focus on occupational safety and health issues and that
will include OSHA enforcement actions where an employer is challenging
and OSHA citation, you know, rulemaking, compliance, advice, all that
type of thing. And I always hate saying this number
out loud. I've been doing it for almost twenty five
years now. I've been completely focused only on OSHA issues.
Speaker 1 (01:58):
Great, great, And today the topic of our podcast today
is how can an employer prepare for the defensive workers
compensation claim and the OSHA claim at the same time.
Are you ready to help us on that?
Speaker 3 (02:15):
I hope so I'm gonna try.
Speaker 2 (02:18):
That's good, all right, Thank you again Melissa for joining us.
We're really pleased that you could do this. Just kind
of explain generally to our audience what is OSHA and
what is its purpose.
Speaker 3 (02:29):
Well, OSHA is the Occupational Safety and Health Administration. We
really have two types of OSHA systems through in the
United States. We've got federal OSHA which covers I believe
twenty nine states, and then a number of states have
their own OSHA plans, including the states that you and
see were in, Kentucky and Tennessee. So OSHA and its
state equivalents promulgate standards that employers are required to comply with,
(02:54):
and they issue citations or violations when employers they allege
employers not following the relevant regulations and standards.
Speaker 2 (03:04):
What are kind of the basics that employers need to
do to comply with airshaft.
Speaker 3 (03:09):
Oh gosh, it's so dependent on industry. I mean, you know,
some of the basic things that would apply to everybody,
or not everybody, but a lot of people would be
providing personal protective equipment, providing Many of those listening are
prey familiar with safety data sheets. If you have chemicals
that are used in your workplace, you need to provide
access to safety data sheets, emergency response procedures. I'm actually working,
(03:32):
as I mentioned today, on some comments on OSHA's recent
proposal to require employers to take steps to protect employees
from high heat conditions. So it really runs the gamut.
Speaker 2 (03:46):
And then yeah, go ahead, See.
Speaker 1 (03:49):
I was going to say, can you give us a
brief discussion of reporting what the employers need to do
when an injury occurs, and when is that triggered If one.
Speaker 3 (03:59):
If one of your employees, If an employee of that
employer is has the following types of injuries, they're admitted
to the hospital on an impatient basis for treatments. If
it's an amputation, if it's the loss of an eye,
if it's a fatality. Yeah, those are the circumstances or
(04:25):
which you're going to have to employ. You're gonna have
to report that injury to your local Ocean area office.
And so.
Speaker 1 (04:34):
Are there types of injuries that do not have to
be reported.
Speaker 3 (04:39):
For some reason. And Osha says this out loud on
the reporting rag. You don't have to report the loss
of an ear eye but not your don't ask me why.
And then it's it's got to be severe enough. You've
either got to meet that amputation criteria, or it has
to be something significant enough that you were admitted to
the hospital so you go to the emergency room and
(04:59):
get stitches, or even if you spend the night in
the emergency room getting treatment. Reporting isn't triggered until that
employee is actually admitted to the hospital for treatment, so
for something other than observation. So it's got to be
significant enough that that criteria is met or it's in
the amputation.
Speaker 2 (05:19):
How long does it generally take to work through an
ASHA claim that's disputed and litigated, Well.
Speaker 3 (05:25):
OSHA's got six months from the time of the hazard
to issue a citation. So when you think about it,
when you compare that to maybe like an EOC case
or something, that's a pretty short time period. So you
report an injury, Osh's got six months from that day
to issue a citation. You know that that statute lations
(05:47):
may be a little bit different. If let's assume OH
is coming in to do a more general inspection, you
know that inspection may take six months, and because there's
no defined time at which it hazard existed, there can
be a little bit of play with that six months,
but it generally it's six months. And then once you
(06:11):
use the litigation phase, if you're in the federal lotions system,
it would it can move pretty quickly and for a
super complex case. I just finished up a case where
we had thirteen different sets of citations for one employer
that were like all around the country. We ended up
settling that kind of on the courthouse steps, but it
took about two and a half years to get that
teed up and get all the discovery done. For a
(06:32):
much more simple case where you're talking about you know,
one or two citations, you know, I would expect to
have that trial and have that briefed within probably.
Speaker 1 (06:40):
A year, okay, And so that sounds like a kind
of a similar timeframe to workers' compensation claim. Some of
them take three months, some of them take a year.
Just depends on the case. You know, here in my
jurisdiction in Kentucky, if you if the employer admits to
a a safety violation, let's say OSHA issues that fine,
(07:04):
the employer early on decides to write the check for
the fine, but in the process they admit to being
at fault or being having you know, violated the OSHA rule.
That can really come back to bite them later in
the workers compensation claim because there's an add on thirty
percent penalty for safety violations. Have you seen that in
(07:27):
other jurisdictions.
Speaker 3 (07:30):
I have. I know that they have that kind of
I would call it a multiplier system. I know they
have that in California is another example. I think Illinois
has something somewhat similar to that, and then Ohio and
I don't know a ton about this, but my colleagues
in our High Office has told me, Ohio's got all
kinds of like multiplier kind of systems like that that
(07:54):
are kind of complicated. So you know, what I find
is that that that's one consequence that the monetary of
accepting an ocean citation or an ocean violation early in
the process. But there can be a lot of other
consequences too. I mean, if you're if you're a large
employer with multiple facilities, you know, you accept that one
(08:14):
citation that can snowball into a much more significant violation,
a willful violation, a repeated violation that's going to have
a much higher penalty it's going to have You're going
to get bad press out of it. So that's a consequence.
And then you know, you and I have talked about
steven certain industries in the contracting community. You know, you're
(08:37):
you're required as part of the bid process to upload
a lot of your safety data to these websites, and
you were required to continually update that information too. So
if you accept an oceana violation, you're going to have
to report that on this website. In certain industries, I
would say were the customers or elected utilities, refineries, chemical
(08:59):
company They are very selective about who they will allow
to do contract work at their sites. And if they
feel like you have too many OSHA violations, they you
may lose a contract you already have, or you know,
you may be prohibited from bidding on work in the future.
So that's obviously an enormous business consequence for a lot
(09:21):
of employers in those sorts of industries.
Speaker 1 (09:23):
I have never heard that before we started at this
discussion on this podcast here really for today. And then
the other item you mentioned was the cross state issue.
If you've got a violation in one state, how they
can affect your ability to do business in another state
as a contractor. I've never heard of that before.
Speaker 3 (09:45):
Yeah, I mean that can absolutely happen. I mean, I
as I said, I find it to be the most
prevalent with you know, electrical work, utility work in general,
and refineries, chemical companies, places where you I mean, safety
is important everywhere, but I mean if you're you know,
handling thousands of gallons of some kind of hazardous substance,
(10:08):
I mean I can understand how you want to be
selective about you know, who who you're using as contractors.
But I mean, I find that on the the OSHA
side that drives a ton of litigation because you know,
my client might say, you know, we probably do have
some liability here, but we cannot have this violation on
our record. So you know, we're going to do whatever
(10:29):
it takes to get rid of it, you know, through
a settlement or you know, we may just have to
litigate and kind of roll the dice.
Speaker 1 (10:36):
And the problem here is that it almost becomes a
roadmap if you agree to the OSHA fine for the
safety penalty, Jennifer, is there anything like that in Tennessee
where you have to pay an add on safety penalty?
Speaker 2 (10:51):
No, so in Tennessee we don't have any of that,
but I anticipate it's the same in outther states.
Speaker 1 (10:59):
Right right, thinks like that, Melissa, Back to you on
to prepare for these claims. What what do employers basically
need to do or at least to know from day
one forward of an ocean violation claim?
Speaker 3 (11:17):
Well, I mean, if I if I'm a workers comp
attorney and I get a call from a client saying,
we've had this accident. You know, so we're reporting the
injury because you know, a claim is going to be made.
We've also got OSHA investigating, and you know you're looking
to provide advice to that employer. I think you should
(11:39):
be aware of all those sorts of issues I just
talked about. I mean, does this client care if they've
got OSHA's citations on their record. If you're talking about
you know, a single facility that's a manufacturing facility, you know,
they may not be so concerned about their ocial liability.
In contrast, as we've talked about, there are other employers
who are going to care a whole lot about their
(12:00):
oshal liability. So I would make sure you understand where
the client sits with regard to those kinds of issues
from the outset. And then you know, one critical defense
I wanted to mention is the affirmative defense that we
call the unpreventable employee as conduct defense, and it's a
very commonly raised defense. It's got four elements to it.
(12:22):
The employer has to be able to show that a
work rule that would have prevented the hazard or mitigated
the hazard was in place. So, for example, you've got
employees working at heights over four feet or over six feet,
you've got a fall Protection Program. Employer employees are required
to wear fall protection when they're doing that work at heights.
So you've got the work rule, You've trained employees in
(12:43):
the work rule, and you can show that you know
one one side note osha understandably, I think is getting
pretty They're digging heavily into does the employee understand the training?
So if there's a language, you know, you better make
sure that you can show that that employee actually understood
(13:04):
the work rule. You have to have taken steps to
identify violations of the work rule. And that can really
take two forms. That could be and a lot of
employers do both. That could be you know, you do
a quarterly audit. You know, you maybe you walk the
production line, or you go and roll up on a
construction crew and just you know, see are they complying
(13:25):
with all your work rules? Or that can just be
general supervision. And you know, even if you've got a
crew that's working remotely that doesn't have a supervisor, you know,
if you've got a general foreman or someone who's the
front line management for that crew and they visit these
crews every day, you know that general foreman is probably
going to say, well, had I rolled up on this
(13:45):
crew and seen that they were up on top of
this electrical tower and they weren't wearing any fall protection.
I would have said, WHOA wait a minute. So that's
how you kind of implement systems to detect violations. Then finally,
when you do detect violation, you've got to discipline employees.
And that's a lot of times the defense falls falls
apart on that element because you know, I understand it.
(14:08):
I mean, frontline supervisors don't want to necessarily be in
the business of coming down hard on the folks that
work for them. So you don't have to fire somebody
the incident you learned that they made a mistake. But
you need something in the file. You know, I counseled
Steve about the importance of wearing his safety glasses. You
just you need something to meet that element.
Speaker 2 (14:29):
Because it sounds a little bit like in Tennessee, we
have a wilful misconduct offense, so kind of similar to that.
For sure. Do you have examples where you've used this
unpreventable employed misconduct defense and it's it's kind of ever
elapsed with workers' compensation? Do you have any examples or
situations for that has occurred.
Speaker 3 (14:48):
Well, hmm, I think I think we have to some
degree in California, and oh Tree's got a whole team
of folks that only do California. To work is California,
as with everything as like a foreign country to some degree.
But as I understand it, I think, don't quote me
on this, but I think in California, with that multiplier,
(15:10):
if you can show that you know the employee willfully
violated your work rule, then you're not going to be
on the hook for that entire multiplier. It's not I
mean the workers, I guess I wouldn't. What I analogize
it to in workers' comp is in some states they
say if you can show that that the employee was impaired,
(15:31):
you know, by drugs or alcohol, then you know that
claim may not be compensable. So it's not that extreme,
but I think that's a good analogy.
Speaker 2 (15:40):
Okay. And then as workers practitioners, which I think is
the main audience of this podcast, what are some things
we can that we need to be aware of in
terms of saying, answering discovery or or defending our case
that could potentially come back later to hurt our clients.
In an osha claim.
Speaker 3 (16:00):
Well, you know, so you've kind of talked about, I
mean the timeline of you know, where that that Osh's
citation is and the litigation and the time men of
the comp claim you know may or may not be
fairly similar. But I mean, going back to unpreventable employment misconduct,
you know that's a defense that your client's going to raise.
(16:20):
Then you know, you don't want to see anything in
your discovery responses or ideally in your deposition testimony that
you know infringes on that defense. And I think that
the place that comes up the most often is where
you've got a supervisor who's involved. So, you know, with
unpreventable employ misconduct, if the supervisors committing them as conduct,
(16:45):
or worse, if the supervisor is standing there watching the
violation occur, then that makes it much more difficult to
prove the defense. And state law varies wildly. Now I
shouldn't say state law. Federal law arees on this issue.
Like the Eleventh Circuit, for example, would say, you know,
OSHA's got to prove that it was foreseeable that that
(17:09):
that foreman would blow off that violation or would commit
the violation himself. In other jurisdictions, it's not the same.
But I mean, you know, I think you want to
be especially careful about about discovery responses that that designate
someone as a supervisor. I mean, you better make sure
(17:30):
that person really is a supervisor because once you do that,
then you've kind of blown up your unpreventable employments conduct
defense is one thing I would be I would be careful.
Speaker 1 (17:40):
Of so cruitment if for wrong. But what I'm hearing
is that with the unpreventable employee misconduct defense, employers really
need to have your supervisors trained to discipline people on
the spot about safety. So they really need to be trained.
Is that a fair summation?
Speaker 3 (17:59):
That is a fairsome And I think that when you
think about the evidence, Ocean is going to base a
violation on a lot of times that evidence comes from
a frontline supervisor because you know that they're they're the
ones who are you know, there on the ground and
you know understand what's going on. So in terms of
(18:19):
discovery responses and you know any depositions that are going
to take place in that comp claim, I mean, if
the employer is raising unpreventable employment misconduct, you better make
sure the supervisor's testimony reflects that the supervisor says, for example,
I wasn't there when this violation occurred. You know, had
I been there or had I come across this crew,
(18:41):
I would have stopped them and said, wait a minute,
you know, here's the proper way to do this, and
I would have you know, counseled the employee or you know,
written them up or done whatever you need to do
under your progressive discipline policy. So you know, if if
you've got testimony or evidence to the contrary or the
comp claim, that's really going to damage your OSHA.
Speaker 1 (19:02):
Defense, sounds like the supervis is key.
Speaker 3 (19:08):
That is definitely true. And and you know in terms
that for for certain types of work, and this this
arises most in construction work where you may have a
crew that's working that doesn't have a supervisor standing right
there over them, and so then the you know, OSHA
wants someone on that crew to be a supervisor because
Ocean knows that's going to blow up your unper miteral
(19:29):
employment as kind of defense. So a lot of the
debates we have early on during these Ocean inspections, are
you know, is this this lead person really a supervisor
or not and that comes up very early in the
Oshan inspection process because when Oshan interviews a supervisor, counsel
is allowed to be present. When Oshan interviews an employee,
(19:53):
that that interview is going to be private or it's
only going to be the union rep there at the interview.
So I mean that issue tends to get confronted very
early in the process for just that reason.
Speaker 1 (20:07):
Well, based on you not that was my next question.
Is a crew member or a team or crew lead
or a team lead, is that actually a supervisor?
Speaker 3 (20:16):
Well, boy, I've had hot debates with Osha about that
over the years. And actually one sort of piece of
advice I've given to clients recently, and again these are
typically client We're not saying about a manufacturing site where
you've probably got a frontline supervisor supervising that production line
and they're there. We're really talking more is employees who
(20:38):
are out working with crews or even individually, they do
not have that supervisor right there. So one piece of
guidance that I've given to employers is, you know, if
that person really isn't a supervisor, they don't have the
authority to hire anybody. They don't have the authority to
fire anybody. They can't discipline anybody. The most they could do,
(20:59):
just like an other employers go to the supervisor and say,
you know, Jennifer isn't really following the safety rules, and
I think you need to do something about it. If
that's the limit of their authority, even if they're the
most senior person and you know, maybe they have some
role in deciding who's going to do what work task.
(21:20):
I would change all those job descriptions. Don't call those
people for them in because they're not call it. I
have one client who provides all their job descriptions to
use to use the word crew lead, and then when
you read the job duties, it's things like, you know,
coach employees on the proper way to do things, and
you know, be the leason with the frontline supervisor in
(21:41):
terms of the work that's going to be done that day.
And we just sort of scrubbed all those job descriptions
of terminology that I would consider as describing as supervisor.
Speaker 2 (21:52):
Let's say you're getting close to a settlement in a
in an OSHA claim. What's important for the employe you're
in that respect?
Speaker 3 (22:03):
Well, I mean I think that's really going to depend
a lot on what their settlement goals are. You know,
I think that really because of a lot of these
situations where you could be prohibited from bidding on work.
Let me give you a real extreme example. Those just
(22:24):
got something they call the Severe Violator Enforcement Program, And
if you rack up enough like willful violations, they will
put you in that program. They'll issue a really nasty
press release, they'll send a letter to your CEO. It's
not a place you want to be. The City of
Boston now says if you're an employer who is in
that Severe Violator Enforcement program, we won't give you a
(22:45):
work from it. You can't do work in the City
of Boston if you're on that list. So, you know,
I think you really have to kind of think about
those sorts of circumstances and how they could impact your
particular business. And you know, if you can get to
a settlement where OSHA says, okay, you know, we'll say
(23:07):
that this violation was other than serious. I mean, that's
a that's an official kind of OSHA citation category. We
will do that if you will pay a much higher
penalty than you would have paid otherwise, perhaps, and if
you will agree to a lot of what we would
call enhands of Bateman measures in the settlement agreement. So
(23:27):
maybe this happens with a single work crew in Massachusetts,
you say, okay, if you'll agree to recharacterize this violation, Osha,
you know, we will retrain all of our employees across
the country on this particular issue. We'll hire a third
party safety consultant to come in and look at our procedures.
All of those bells and whistles are going to be
worth it for some companies, for others, they're not. For others,
(23:51):
they're just going to say, you know, this really isn't
that important to us. The find's not that high. Let's
just pay it and move on, even if we're paying
that multiplier and Tucky or California or Ohio or wherever
we are. So it really depends on those kinds of factors.
Speaker 2 (24:07):
And this might be asking you the same kind of thing.
But would that be where a non admission might be
important in those situations?
Speaker 3 (24:14):
Well, and I have some questions for you all about that. Actually,
I mean, we typically do include non ween not typically
we always include non emissions language in an OSA settlement agreement,
and that language typically says, you know, we're selling this
just to avoid litigation costs. We don't admit any liability,
and you know the fact that we settled and the
(24:36):
OSHA citation and the settlement agreement are only admissible for
purposes of a future OSHA violation. So I mean, all
that really means is that, you know, if we accept
a violation of you know, the standard on personal protective equipment,
you know, OSHA will never waive the ability to later
(24:58):
on say oh, well, now you've violated that same standard again.
Now it's a repeated violation. But the language is intended
to keep that citation, keep that settlement agreement out of
a comp claim, out of any tort suit. But let
me ask you, all I mean, is that going to
be effective. Do you think in a comp claim to
be able to say none of this is admissible?
Speaker 1 (25:18):
In this case, I'd rather much have a non admission
than an admission of liability, because the admission gets immediately
filed into court and it really becomes, to my mind,
a roadmap, not really raised Hu to Kata, but something
along the lines of a roadmap for the judge to
find that there was a safety violation on the employer's part,
(25:44):
and therefore the employer should have to pay that additional
thirty percent penalty. So I don't want an admission of
and that's to go back to where we started at
the beginning of the podcast. Employers, I don't think that
they realize when they just agree to it right off
the bat, without getting counsel, without thinking about it. They
just want it over and done, and I just don't
think that's always best for them.
Speaker 3 (26:06):
I would agree with that, and I think that's true
because of these sorts of multipliers. It's true because of
the business consequences we talked about, but it's also true
because you've got to remember that, you know, you accept
the citation. Now if you commit that same violation within
the next five years, then it's going to be a
(26:26):
repeated violation, and the penalty is going to be the
ocean penalty is going to be much much higher, or
it could be later become a wolful violation. Osher will say, well,
you know, we cited you for this before, and obviously
you didn't get the message because now it's happened again,
so now it's wilful. And it's those sorts of violations
that ultimately could put you into the severe Violator enforcement
(26:49):
program and programs like that. But really, the most devastating
piece of that, to me, at least I think a
lot of my clients would agree, is just the negative press.
I mean, you know, OSHA will issue a nasty press release.
If you've got a union, they will seize on it
and try to do whatever they can with it, and
(27:10):
it really just hurts employee morale. I mean, you know,
for the government to be saying this is a bad employer.
So it's it's hard to quantify those those effects, but
they're very real.
Speaker 1 (27:21):
Melissa, We're getting towards the end of our podcast here,
but can you think of some examples of cases where
things went really wrong or conversely where things case where
things went really well? In you know, the defense of
an OSHA violation claim?
Speaker 3 (27:38):
Gee, is it bad? I can think of more situations
where things went wrong than I can think where things
went right. Well, I shouldn't say that, I mean, I
think one key part of having things go right is to,
you know, make sure that the client understands how to
deal with ooshow, what are good tips and strategies you're
(28:01):
doing that if you're the worker's competorney who's gotten that
first call. You know, I think you need to to
understand those things as well. I think the most I
think when cases tend to go wrong, it's where at
the beginning of a case, the employer immediately says to Osha,
oh sure, you know, go interview, Go interview our supervisor.
Go ahead and interview the managers. You know that those
(28:23):
people may or may not have another management rep president
during the interview. But that's where a ton of OSHA
gets a ton of their evidence. So we're going to say,
you know, isn't it true that you know, you guys
were in a hurry that day and this needed to
get done, and that's why you didn't lock it out. Well,
you know, a supervisor not knowing any better, we'll say, well, actually,
we were under a lot of time pressure that day,
(28:44):
and it does take a long time to de energize
this line to make sure the equipment can't move, and
we were just needed to do this one little thing,
so we didn't do it. I mean, right there, you've
got a wolful violation. OSHA's done.
Speaker 1 (28:57):
Gotcha, Well, most of we are. We want to thank
you for being on our podcast today. Thanks to Jennifer
as well. Melissa, can you tell our audience how they
can find you if they need you? How do they
contact you?
Speaker 3 (29:12):
Sure, I'd be happy to do that. It's Melissa Bailey
B A.
Speaker 2 (29:16):
I L. E. Y.
Speaker 3 (29:18):
My law firm is Obletree Deacons. So if you if
you google that, it should it should pop right up.
And I am in the Workplace Safety Practice Group and
I sit in the DC office.
Speaker 1 (29:27):
Sounds good, sounds good well, and thank.
Speaker 3 (29:30):
You both for having me. I really enjoyed it and
I appreciate the opportunity.
Speaker 2 (29:33):
Thank you. It's a pleasure.
Speaker 1 (29:35):
Thank you.
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