Masonry Magazine January 2006 Page. 45
6. The Risk of Collateral Litigation
All employers must be aware of the laws of the states where they conduct business. These laws will often dictate the type of collateral litigation an employer may face, directly or indirectly, as the result of OSHA violations and/or workplace accidents.
State workers' compensation statutes generally prohibit personal injury actions by employees against employers. However, third-party lawsuits (e.g., those against architects, engineers and property owners, products liability lawsuits, etc.) are a very common byproduct to workplace accidents. In addition, some states impose heightened damages against employers in connection with workplace accidents.
For example, in Massachusetts, employees may receive double compensation if their injuries are the result of "serious and willful misconduct" (see M.G.L.A. c. 152, §28). Under this statute, the employer-not his or her insurer (if any) - must pay the extra compensation. Thus, employers affected by such statutes must be especially careful to avoid "willful" OSHA citations.
7. The Impact on Labor Relations
When employers evaluate whether and how they contest OSHA citations, they must also consider their relationship with respective labor unions. Maintaining a positive relationship with labor unions is a goal that should be shared by all employers. Contesting OSHA citations may have an adverse impact on these relationships. Employers must be aware of such impacts and govern themselves accordingly.
While the list of seven factors I've outlined is certainly not exhaustive, it briefly covers the issues every employer should consider when deciding to contest OSHA citations.
James F. (Jim) Laboe, Esq. joined Orr & Reno in 2004 after practicing with the Washington, D.C. law firm Arent Fox. While in Washington, he gained considerable experience in the areas of occupational safety and health law. Laboe specializes in representing employers in all aspects of the OSH Act. He has particular expertise representing employers in OSHA Inspections and enforcement actions.
Laboe has also gained experience representing employers and trade associations in litigation involving the interpretation of OSHA standards. He can be reached by e-mail at jlaboe@or-reno.com.
Copyrigte © 2005 Safety Change (www.safetyxchange.org). Reprinted with permission.
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