BackOSHA - Safety & Health

Nelson Mullins' attorneys know that the best way to achieve a healthy and safe work environment is to make one happen. This means working with clients and their employees to prevent and recognize hazards before they become an issue. Nelson Mullins recognizes and appreciates the fundamental issue that a safe and healthy work environment is about more than avoiding OSHA infractions - it's providing a place for employees to be productive and feel comfortable working on a daily basis. A safe and healthy work environment raises morale among employees, reduces workplace injuries and lost workdays, and reduces workers' compensation benefit claims.

OSHA's mission, whether at the federal or state-plan level, is to ensure employers keep their employees healthy and safe.  The regulations, while sometimes overwhelming because of their sheer number, are in place to meet this goal.  Failure to comply with the regulations is considered a failure to provide a safe working environment.  With the ever-increasing complexities of the workplace, and the extensive state and federal health and safety regulations, understanding how and when these regulations apply and the penalties involved with non-compliance is not an easy task for many employers.
 
Nelson Mullins attorneys can help your company deal with and understand these regulations, where and when they apply, and the best ways to avoid hazards, injuries, and citations.  OSHA has extremely broad power in onsite investigations, which are normally an open-ended fishing expedition where it is relatively easy for the OSHA inspector to find technical issues.  Part of Nelson Mullins' mission is to assist the employer before and during the investigation stage.  If a citation is received, Nelson Mullins attorneys will vigorously defend your company to minimize and avoid liability.  They can also help you navigate the legal minefield where competing interests of civil liberties, workers' compensation, and state and federal workplace safety regulations all come into play.  Nelson Mullins attorneys defend employers against OSHA related litigation claims if they arise.
 
Meeting Individualized Client Needs - Responsiveness and Prevention

 

Our OSHA Safety & Health Group attorneys start with responsive "first line of defense" services available on a 24/7 basis whether it be for a simple telephone conference to discuss an issue or a drop-everything emergency. We recognize that if our Firm is to represent a client on a national basis, they may have facilities located in different time zones from Puerto Rico to Hawaii. Our attorneys have experience dealing with OSHA's regional and area offices across the country, including state-plan states, such as North Carolina and Tennessee. Nelson Mullins attorneys are ready to adapt their schedule to the geographically diverse facilities of the client when they need us. Our commitment is to talk to our clients live when they call or to return their call within two hours. To achieve this, we provide the client with a team that includes multiple contacts so that someone will always be available.

We develop written safety and health programs and conduct health and safety compliance audits specific to individual client needs. Nelson Mullins also works with clients to develop comprehensive corporate and plant-level contingency plans for dealing with catastrophic accidents. We assist our clients in implementing these programs and plans properly and are available to train on the plans or simply answer questions from managers and employees. Nelson Mullins recognizes that no workplace remains stagnant, and we continue to work with clients on safety and health as business changes and grows to address new safety and health issues as they arise. Responsiveness also means alerting our clients without them having to call us first when a development such as proposed or new OSHA regulations will impact them.

In addition to drafting and implementing plans and conducting audits, Nelson Mullins OSHA Safety & Health Attorneys are at the forefront of prevention:

  • We are continually seeking out new ways to provide improved services, advice, and counseling to our clients in the area of safety and health. Whether it is through free safety and health seminars or keeping up to date with new technology or trends in the area, Nelson Mullins attorneys have our clients' safety and health interests foremost in mind. For example, in the fall of 2004, the Atlanta Office brought in a speaker from the Georgia Tech Occupational Safety and Health Program at a breakfast seminar for clients and friends to speak about the program's free OSHA consultation.
  • One of our attorneys is currently assisting a major financial institution develop procedures in an area where there are no OSHA standards to date, but there are concerns over worker safety and health.
  • Our attorneys monitor OSHA cases and new legislation in the area of safety and health and alert clients via email and client letters to newly recognized hazards, potential legal claims, and emerging issues.
  • One of our attorneys is currently working toward OSHA certification from the U.S. Department of Labor.

Continuous Training and Development

 A key component to any preventative program is proper training. Nelson Mullins' early involvement in safety and health means preparing managers and employees to deal with everyday issues that can arise in the workplace, from preventing injuries, properly reporting injuries, and potential violations to the proper management; not engaging in self-help when ordinary rules and procedures do not provide an answer; knowing when an incident needs to be reported to OSHA and when it does not; to how to respond in the event of an emergency. Going beyond written programs, regulations and rules is the key to a successful, safe and healthy environment. Moreover, training is an ongoing endeavor necessary to keep employees informed about new rules and regulations, how the regulations apply to advancements in manufacturing processes and to answer new questions that arise about old regulations. Nelson Mullins attorneys can provide continual up-to-date training and development for your workforce in the area of safety and health.

Interpreting and Managing the Complexities of OSHA

Many employers feel overwhelmed by the sheer number of the technical regulations demanded by OSHA. Nelson Mullins OSHA Safety & Health Attorneys have worked with these technical regulations in a variety of capacities and can assist clients in managing the nuances of so many rules and regulations. Nelson Mullins attorneys have experience in areas such as lock-out tag-out, ergonomics, exposure testing, Haz Com issues, employee exposure, construction regulations, injury reporting, noise protection, personal protective equipment, repetitive tasks effects, document retention, industrial hygiene, toxic torts involving OSHA compliance, and others. Several attorneys have environmental, scientific, and medical backgrounds that add to the depth of experience of Nelson Mullins OSHA Safety & Health Attorneys. Several of Nelson Mullins' attorneys have held in-house positions where they dealt with OSHA safety and health issues on a daily basis.

Preparedness for OSHA Inspections

Another essential component to an employer's overall program is being prepared for how to deal with OSHA inspections. Since the majority of inspections are unannounced, we can not always be there when the inspection occurs. Beginning with the scope of the inspection and continuing through OSHA access to personnel records, protecting proprietary information, and employee interviews, Nelson Mullins provides clients with the tools to guide them through the arduous OSHA inspection process when it happens. Our attorneys have first-hand knowledge dealing with difficult and overzealous OSHA inspectors. Where on the rare occasion the client is aware of an impending inspection, Nelson Mullins attorneys are available to be present for and represent the client at the inspection. And of course, Nelson Mullins attorneys are always available to answer any questions about an inspection at any time.

The early involvement by the Nelson Mullins OSHA Safety & Health Attorneys helps ensure that when inspections do occur, there will be fewer non-compliance issues and minimized fines associated with violations. It also presents the opportunity for out-of-court resolution of many disputes before litigation is necessary. Attorneys at our Washington, D.C., office who have various contacts within the administration, including the Department of Labor, can also help facilitate early resolution.

Litigation

When necessary, Nelson Mullins is ready to defend employers against OSHA and state civil and criminal enforcement actions. Firm attorneys have broad experience in handling all types of OSHA litigation, including citations involving allegations of willful and repeated violations, proposed multi-million dollar civil penalties, and employee death.

Examples of more recent work Nelson Mullins attorneys have handled in this area include the following:

  • Representing a Texas-based contractor in the defense of multiple OSHA citations, including one significant willful citation and a repeat citation, following the collapse of two 26-foot-high by 80-feet-long masonry walls at a North Carolina government job site where one employee was injured. Nelson Mullins employment attorneys successfully defended OSHA's initial citations. Working with the client and experts in the area of construction, the attorneys created a defense based on faulty design resulting in a significant reduction in the severity of the citations, including reducing the willful citation and the repeat violation and eliminating completely other citations. The attorneys were also successful in reducing the financial penalty to a small fraction of the original penalty where the Department of Labor attorneys originally insisted that there could be no reduction in the penalty based on the severity of the alleged violations. Nelson Mullins attorneys creatively proposed a one-day safety seminar for other area contractors as part of its negotiations to reduce the final fines and penalties.
  • Representing an international pulp and paper manufacturing company against the South Carolina Department of Labor following an explosion at the company's South Carolina facility that resulted in the death of two employees of a construction subcontractor.
  • Representing Fortune 500 company in an employee fatality investigation in Hendersonville, N.C., that spanned nearly six months. Following the successful conclusion of that OSHA matter, the company retained the Firm to defend the company and members of management in a wrongful death suit filed by the deceased employee's estate. In this matter, Nelson Mullins employment attorneys worked in conjunction with national corporate counsel, internal and external safety professionals and the Firm's products liability and general litigation attorneys to fashion a defense strategy to reduce and eliminate liability not only under the N.C. OSHA Act and the anticipated wrongful death suit, but also in the context of similar manufacturing processes in use at other facilities company-wide.
  • Representing a Kentucky-based highway engineering firm in the defense of multiple OSHA citations following an accidental death by electrocution at a South Carolina job site. Nelson Mullins employment attorneys successfully appealed OSHA's initial citations, resulting in a significant reduction in the severity and financial impact of OSHA's final citations based on potential employee misconduct.
  • Representing a utility company in a case where they were issued citations for failure to use safety equipment while up in a bucket repairing electrical wires. Nelson Mullins employment attorneys were successful in defending against the citation on the grounds that OSHA and the South Carolina DOL had not properly promulgated the regulations they claimed were violated. The DOL was forced to get legislation passed to prevent the same claim made by Nelson Mullins' attorneys from surfacing in all their OSHA cases.

The above examples illustrate the advantages our employment attorneys enjoy by virtue of working within a litigation practice group with diverse experience and talent. Almost without exception, the defense of OSHA claims involves a careful balancing of the competing concerns presented by state and federal workplace safety regulations, workers' compensation, and civil liability. First and foremost, however, Nelson Mullins wants to help its clients avoid these claims by providing comprehensive counseling services.

Retaliation Claims

OSHA retaliation claims have significantly increased in the past decade in both union and non-union facilities. An aspect some employers fail to recognize is that OSHA is one of the federal statutes that provides penalties for employers who retaliate against an employee for making a safety or health complaint to OSHA. The scary part is that even where the underlying safety and health complaint has no merit, the employer can still be held liable for retaliation against the employee. Nelson Mullins attorneys have experience handling retaliation claims specific to OSHA and have successfully resolved even the most difficult retaliation cases.