Fisher & Phillips LLP
ATTORNEYS AT LAW

Solutions at Work®

Workplace Safety Wednesdays:
Effectively Contesting MSHA
Citat...
Reducing penalties overview

• What’s the big deal?
• What can I do to prepare
in advance?
• Is there anything I can do
du...
It’s just a few points, so what?

Reasonably Likely  Unlikely = 20 points (30-10)
Permanently Disabling  LW/RD = 5 point...
10 points can’t make that much of a
difference, can they?
Penalties
$70,000
$60,000

$50,000
$40,000
$30,000

Penalties

$...
Collateral consequences?

• History Points
• Pattern-of-Violations
(POV) Criteria

• Independent Contractors
and Construct...
Is there anything we can do?

• Preparation
• Explanation
• Contest(ation)

Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutio...
Pop Quiz #1
What must MSHA prove to establish an
S&S citation?
1. Violation of a mandatory health or safety standard.

2. ...
Prepare for the inspection
• What do we need to know?
–
–
–
–

S&S test
Unwarrantable failure
104(d) “chain”
Statistics

•...
Once the Inspector arrives

• Document everything!
–
–
–
–
–

Notes
Pictures
Maps
Measurements
Witness statements and
affi...
It’s all a matter of perspective . . .

Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com

Ph...
Pop Quiz #2
What factors contribute to an
Unwarrantable failure?
1. Amount of time condition left uncorrected.
2. Was cond...
Once the Inspector arrives
• Explain position
– Read standard
carefully

• Opportunities during:
– opening conference
– wa...
Pop Quiz #3
What are the required elements of a
safe access citation under 56.11001?
1. Safe means of access

2. Shall be:...
After the Inspector leaves

• Request for informal
conference
• Must be within ten (10) days of
issuance of citation
• Sho...
What if MSHA says NO?
• Notice of Contest
• Post-Assessment Contest
• Penalty Petition
• Settlement Negotiations
• Credibi...
Preparing for the hearing
• Proper preparation for
depositions
• Examining MSHA Inspector
– Experience/Qualifications
– De...
When to involve counsel
• Long-term costs of compliance

• POV, flagrant, special
assessment, 104(d) chain
• Fatality or r...
Conclusions
• Modifications and penalty
reductions matter
• Preparation is important

• Be informed
• Clearly and credibly...
Upcoming Workplace Safety Wednesdays

• February 19 – Safety’s Role in Labor Relations
• March 19 – Criminal Liability und...
Fisher & Phillips LLP
ATTORNEYS AT LAW

Solutions at Work®

Any Questions?
Thank You
Presented by:

Matthew R. Korn
(803) ...
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Effectively Contesting MSHA Citations (Workplace Safety Wednesdays - Jan 2014)

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On Wednesday, January 15, 2014, Matthew Korn discussed how to effective contest citations under the Mine Act. Matthew focused on preparing your Company for an inspection, what to do during the inspection to reduce your liability, and effectively handling the contest process after the inspection. The presentation provided useful strategies to reduce the potential penalties you may face during an MSHA inspection. Matthew reviewed the Simplified Proceedings process and discussed the best way to present your case to MSHA or the Review Commission.

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  • Bonus – What is the court case that established this four-part test? Mathies.
  • Bonus = Does “high negligence” equal unwarrantable failure? No! Unwarrantable failure requires aggravated conduct constituting more than ordinary negligence.
  • Bonus = Does “high negligence” equal unwarrantable failure? No! Unwarrantable failure requires aggravated conduct constituting more than ordinary negligence.
  • Bonus = Does “high negligence” equal unwarrantable failure? No! Unwarrantable failure requires aggravated conduct constituting more than ordinary negligence.
  • Bonus = Does “high negligence” equal unwarrantable failure? No! Unwarrantable failure requires aggravated conduct constituting more than ordinary negligence.
  • Bonus = Does “high negligence” equal unwarrantable failure? No! Unwarrantable failure requires aggravated conduct constituting more than ordinary negligence.
  • Effectively Contesting MSHA Citations (Workplace Safety Wednesdays - Jan 2014)

    1. 1. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® Workplace Safety Wednesdays: Effectively Contesting MSHA Citations Presented by: Matthew R. Korn (803) 255-0000 mkorn@laborlawyers.com www.workplacesafetyandhealthlaw.com www.laborlawyers.com Atlanta · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville Memphis · New England · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix · Portland · San Antonio · San Diego · San Francisco · Tampa · Washington, DC
    2. 2. Reducing penalties overview • What’s the big deal? • What can I do to prepare in advance? • Is there anything I can do during the inspection? • What about after the citation is issued? Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
    3. 3. It’s just a few points, so what? Reasonably Likely  Unlikely = 20 points (30-10) Permanently Disabling  LW/RD = 5 points (10-5) High  Moderate = 15 points (35-20) Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
    4. 4. 10 points can’t make that much of a difference, can they? Penalties $70,000 $60,000 $50,000 $40,000 $30,000 Penalties $20,000 $10,000 140 130 120 110 100 90 80 70 60 $0 Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
    5. 5. Collateral consequences? • History Points • Pattern-of-Violations (POV) Criteria • Independent Contractors and Construction Companies Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
    6. 6. Is there anything we can do? • Preparation • Explanation • Contest(ation) Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
    7. 7. Pop Quiz #1 What must MSHA prove to establish an S&S citation? 1. Violation of a mandatory health or safety standard. 2. Discrete safety or health hazard. 3. Reasonable likelihood of injury or illness. 4. Reasonable likelihood of serious injury or illness. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
    8. 8. Prepare for the inspection • What do we need to know? – – – – S&S test Unwarrantable failure 104(d) “chain” Statistics • Who should we train? – Managers – Supervisors – Employees Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
    9. 9. Once the Inspector arrives • Document everything! – – – – – Notes Pictures Maps Measurements Witness statements and affidavits Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
    10. 10. It’s all a matter of perspective . . . Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
    11. 11. Pop Quiz #2 What factors contribute to an Unwarrantable failure? 1. Amount of time condition left uncorrected. 2. Was condition particularly serious? 3. Was this a repeat violation? 4. Was there deliberate activity involved? 5. Did operator know or have reason to know? Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
    12. 12. Once the Inspector arrives • Explain position – Read standard carefully • Opportunities during: – opening conference – walk-around – closing conference Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
    13. 13. Pop Quiz #3 What are the required elements of a safe access citation under 56.11001? 1. Safe means of access 2. Shall be: (a) provided; and (b) maintained 3. To all working places Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
    14. 14. After the Inspector leaves • Request for informal conference • Must be within ten (10) days of issuance of citation • Should include facts supporting contest of citation Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
    15. 15. What if MSHA says NO? • Notice of Contest • Post-Assessment Contest • Penalty Petition • Settlement Negotiations • Credibility Matters! Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
    16. 16. Preparing for the hearing • Proper preparation for depositions • Examining MSHA Inspector – Experience/Qualifications – Determinations – Past History • Examining your witnesses Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
    17. 17. When to involve counsel • Long-term costs of compliance • POV, flagrant, special assessment, 104(d) chain • Fatality or reportable injury • Depositions/Hearing • Union activity Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
    18. 18. Conclusions • Modifications and penalty reductions matter • Preparation is important • Be informed • Clearly and credibly articulate arguments Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
    19. 19. Upcoming Workplace Safety Wednesdays • February 19 – Safety’s Role in Labor Relations • March 19 – Criminal Liability under the Mine Act, OSH Act, and Environmental Laws • April 16 – ADA / FMLA Issues for Safety Professionals Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® www.laborlawyers.com Phone (803) 255-0000
    20. 20. Fisher & Phillips LLP ATTORNEYS AT LAW Solutions at Work® Any Questions? Thank You Presented by: Matthew R. Korn (803) 255-0000 mkorn@laborlawyers.com www.workplacesafetyandhealthlaw.com This presentation should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult counsel concerning your own situation and any specific legal questions you may have. Fisher & Phillips LLP www.laborlawyers.com ATTORNEYS Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville Atlanta · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · AT LAW Memphis · New England · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix Work® · San Antonio · San Diego · San Francisco · Tampa · Washington, DC Solutions at · Portland www.laborlawyers.com Phone (803) 255-0000
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