"Most of the attorneys I have worked with have been really great. Some cases, CSHOs are permitted to contact SOL in advance for advice - you need this or that, shore this up, etc. It's been a great relationship. Of course, there's a few that you grimace when you hear who drew your case."It was kind of buried in the last post, but I did say "It's also important to understand that not all attorneys are the same, I once had an attorney who was ready to go to trial over 3 OTS..." I probably owe the good attorneys an apology, because the commenter is right, we have some very good lawyers out there.
The advantage of time is that it gives you a little perspective. Over the years I have seen good attorneys come and go, and I've seen not so good attorneys come and stay. Over that same time I've had conversations with CSHOs from other regions (usually over a beer at the end of the day while attending an OTI course) and it's always interesting to see how their RSOL changes over the years (as does ours). We've all heard stories about how the attorneys in Region Z never take cases under $xxx to trial. Or how the attorneys in Region Y only take Wage and Hour cases. But wait for a few years and that seems to change.
Part of the problem is, as I mentioned in the original post, inconsistency. I recognize, and I hope everyone else does as well, that there is no such thing a perfect synchronization when it comes to S&H. But I do hope is that the new Assistant Secretary and the new Solicitor of Labor can get together and come up with something (an MOU, a joint statement, a directive, a memo, something) that better defines when RSOL will take a case to court and when they won't. If that means that CSHOs get more training from the lawyers on what constitutes a solid case, fine. If that means that the attorneys come out on a few inspections to see what we see, fine. Even if we all just sit down, have a beer together and discuss it, fine. Let's just do something.
Here's a second comment/question I want to answer:
I see your point, but as a non-OSHA insider, I question, 1) did the employer instruct the employee to keep the guard on and he chose to remove it anyway, same for the fall hazard.To start, let's review Section 5(b):
I don't disagree that ultimately, the employer must enforce proper safety practices, but is it possible that the employee may have some fault? I know it was only an anecdotal case, but I keep seeing situations where the employer is always at fault, and the employee is never considered at fault. How do you resolve the second part of the General duty clause, 5(b)?
(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.It seems pretty straightforward, if you're an employee (like I am) you have to follow the rules too, just like the employer. But here's the rub, Section 9(a) of the OSH Act says OSHA shall issue citations to employers for violations, but it says nothing about issuing citations to employees. In other words, we can't cite employees for violations. That is why you see citations to employers for missing guards but not employees. Do we find situations where employees have removed guards despite the employers rule prohibiting it? Yes, not often, but it happens.
Employee misconduct is what's known as an affirmative defense. There are two catches to the affirmative defense, first the employer must prove the employee misconduct in court, second as part of the investigation we are going to defend against the defense. If you want some additional reading, Chapter 5, Section VI of the FOM discusses affirmative defenses (warning: that link is to a very large .pdf file that may take some time to download).
And finally, The Pump Handle has a post on potential OSHA legislation in the Senate, which is worth reading. Unfortunately, one of the things I think is most important, changing the laws that were written to specifically interfere with our standard making, wasn't addressed. I guess there's always next year.