Supervisor Responsibility: Potential Civil & Criminal Liability presented by Mark A. Lies II Seyfarth Shaw LLP 55 East Monroe Street, Suite 4200 Chicago, IL 60603 [e-mail]

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Supervisor Responsibility Potential Civil
Criminal Liabilitypresented byMark A. Lies
IISeyfarth Shaw LLP55 East Monroe Street, Suite
4200Chicago, IL 60603mlies_at_seyfarth.com
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Presenter
Mark A. Lies, II

• 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,
  [phone], mlies_at_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.

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I dont tell jokes. I just watch the
government and report the facts .
Will Rogers
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OSHA regulations may appear somewhat confusing.
but your responsibility to comply with safety
standards have been in existence for a long while.
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ACCOUNTABILITY
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.
King Hammurabi of Babylon 18th Century B.C.
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1st Fall Protection standard ??
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.
Deuteronomy 21 15
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1st Industrial Hygiene standard ??
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.
Deuteronomy 22 23
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3rd Party Liability standard ??
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.
Exodus 2133
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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

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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

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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
• Employers failure to train supervisor is no
  defense
• Employer must discipline supervisor for
  non-compliance

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Potential Legal Liabilities

• Workers Compensation
• OSHA
• Tort
• Criminal
• Whistleblower Laws

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Many Different Categories of Employers and
Employees On-Site

• Owner
• Owners Representative
• General Contractor
• Subcontractors
• Leased Employees
• Borrowed Employees
• Safety Consultants

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OSHA Liability

• Initially, Employer Responsible For Its Own
  Employees
• Employer Had To Ensure That Its Employees Were
  Protected Against
• Recognized Hazards To Employee Safety and
  Health (General Duty Clause)
• Hazards Identified In Specific Regulations (29
  CFR 1926, e.g. falls, electrical, lead, silica,
  etc.)

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OSHA Liability

• Liability was expanded under Multi-Employer
  Workplace Doctrine
• Now, each Employer is potentially responsible for
  the safety and health of another Employers
  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

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OSHA Liability

• An Employer may have multiple roles on the work
  site
• An Employer may become a Correcting or
  Controlling Employer under the Construction
  Contracts or by voluntarily assuming such duties
  on the work site
• On December 10, 1999, OSHA issued Compliance
  Directive (CPL 2-0.124) setting out its citation
  issuance policy for multi-employer work sites

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OSHA Liability

• Citations
• Willful
• Serious
• Non-Serious
• Repeat
• Failure to Abate
• Egregious
• Each classification contains a different
  penalty criteria

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OSHA Liability

• Employer Defenses
• Unavoidable employee misconduct
• Technological or economic infeasibility
• Abatement creates great hazard
• Lack of employee exposure

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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

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UNANTICIPATED HAZARDS
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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

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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

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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

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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)

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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

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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

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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

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Tort Liability

• Duty to preserve evidence involved in workplace
  accident
• physical artifacts (machinery)
• documents (work orders, equipment or site
  inspection records)
• condition of equipment and premises
• Potential legal liability for loss or destruction
  (spoliation) of evidence

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Tort Liability

• Supervisor must ensure that condition of accident
  site or equipment is memorialized through
  photographs or other documentary means (e.g.,
  notes , measurements)
• Maintain custody and control of evidence
• secure storage
• chain of custody for evidence

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Tort Liability

• Police and regulatory (OSHA) agencies access to
  evidence
• police authority
• OSHA subpoena
• chain of custody

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Safety ProfessionalPutting it all together

• Ramifications for inspections/investigations
• Appropriate language when documenting safety
  issues
• Striking a balance to report the facts and
  providing legal protection

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Post Accident Investigations

• Important to determine root cause(s) of accident
• Basis for remedial action
• Potential pitfalls of report
• tendency to speculate
• comments may create admissions of liability
• desire to fingerpoint

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Post Accident Investigations

• Organize factual evidence (interviews, documents)
• Consider creating legal privileges (attorney
  client, work product, self critical analysis)
• Do not draft any report until thorough review of
  evidence and risks

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Post Accident Investigations

• Control distribution of report to control group
  to maintain legal privilege
• Document corrective action or rebuttal to
  conclusions in report

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Criminal Law Liability

• OSHA
• 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 individual
• NOTE No Miranda Warnings Necessary

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Criminal Law Liability

• OSHA
• Obstruction of justice for interfering with
  inspection
• Falsification of records
• Lying to federal inspector
• Misrepresentation of subcontractor status to
  avoid OSHA liability

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Criminal Law Liability

• STATE LAW
• Murder
• Attempted Murder
• Battery
• Assault
• Reckless Endangerment
• DOUBLE JEOPARDY
• Does Not Apply
• Possible Federal and State Prosecution

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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

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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

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Imminent Danger ?
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Imminent Danger ?
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Imminent Danger ?
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Imminent Danger ?
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Competent Person Liability

• Employer Fails
• To establish qualification to identify hazards
• Competent person never designated or informed
• Competent person doesnt make frequent and
  regular inspections
• Competent person never takes corrective action or
  is ignored

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Whistleblower Laws

• Potential Employer Liability If
• Employee engages in Protected Activity (e.g.,
  makes complaint about safety or health violation
  to Employer files complaint with OSHA
  participates in OSHA inspection), and
• Employee Suffers Adverse Action (e.g.,
  termination, discipline, loss of benefits), and

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Whistleblower Laws

• Employer takes Adverse Action and Retaliates
  against Employee because of Protected Activity
• Employee may File 11(c) Complaint with OSHA
  seeking damages
• OSHA will investigate complaint

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Whistleblower Laws

• If OSHA finds reasonable cause that there was
  retaliation, case may be filed in Federal Court
• All States have Whistleblower Laws that may apply

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Site Scenarios

• Supervisor observes contractor employees in
  unsafe activity
• contact contractor supervisor immediately to
  inform of hazard
• (demand/request/inform) that supervisor
  immediately remove employees from hazardous areas
• (demand/request/inform) prompt corrective action
• Imminent Danger demand that subcontractor
  employees immediately exit hazardous area
• document incident for formal corrective action

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Site Scenarios

• Supervisor observes Company employee failing to
  wear personal protective equipment (PPE)
• immediately stop employee from working
• remove employee from exposure to hazard
• provide appropriate PPE
• issue discipline to employee and document
• conduct retraining of employee

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PPE Respiratory Protection
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Confined Spaces
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Yes, there is a backhoe in the middle of the
flames !
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