Demands Must Be Carefully Considered and Responded to in an Appropriate Manner.
By Adele Abrams
U.S. Department of Labor requests for documents have suddenly become a more complicated matter. A series of rulings associated with MSHA and OSHA demands for materials relating to injuries, illnesses and worker’s compensation reports, (also MSHA’s more frequent threats of injunctions under Section 108(a)(1) (E) of the Mine Act when demanding non-mandatory records) make it clear that such demands must be carefully considered and responded to in an appropriate manner.
In late May 2011, Administrative Law Judge Kenneth Andrews ruled in the agency’s favor, in a pair of cases involving coal operators Massey Energy and Peabody Energy. The companies had refused to turn over accident, injury and illness data during audits conducted by MSHA last fall. The audits were to determine if specific mines met the criteria to be placed under a potential “pattern of violations” finding. The two mine operators who challenged MSHA’s demands did so on behalf of eight mines they operate, which were part of the records sweep and were cited for failing to provide the necessary records.
In the Peabody case, MSHA argued that it had the right to review operator records that were “relevant and necessary” to determine compliance with accident, injury and illness reporting requirements. The ALJ agreed with MSHA and dismissed the company’s argument that it should be permitted to withhold the documents because of their “sensitive and private” nature. The judge deemed MSHA to be a “public health agency” that had an interest in promoting mine safety that outweighed the company’s interest in privacy.
In the Massey case, MSHA argued that the role of Part 50 in advancing safety and health was significant because it identifies the aspects of mining that require intensified attention with respect to health and safety legislation. The judge agreed. MSHA issued a press release celebrating the decisions, and Assistant Secretary Joe Main declared “This move has unnecessarily delayed MSHA’s review of the POV process … mine operators should be aware that we are not going to rely on what they report to make such critical determinations. We will check those records ourselves.” The agency also reported that, of the 32 mines audited for POV status, MSHA issued over 100 citations for recordkeeping irregularities.
From OSHA to MSHA
Things are no brighter on the OSHA side of the fence and a May 2, 2011, decision involving materials prepared by workers’ compensation insurance company representatives could lend weight toward similar document demands brought by MSHA in the future via the Section 108(a)(1)(E) injunctive power. The decision by a U.S. District Court in Illinois has the potential to cause significant waves throughout the insurance industry in terms of conducting inspections of their insured’s property for safety hazards.
This pivotal case is Solis v. Grinnell Mutual Reinsurance Co. (N.D. Ill, 2011), and while limited to a single insurance company, it sets guidelines for the utilization of subpoenas duces tecum (subpoenas for documents) by OSHA in both accident investigations and in routine inspection matters.
In the Grinnell case, OSHA had initiated an inspection of Grinnell’s insured, Haasbach LLC, after two teenagers (ages 14 and 19) were killed in an accident at the company’s grain facility. OSHA ended up issuing 25 citations to Haasbach, with $555,000 in penalties, for alleged violations involving lockout/tagout of energy sources, machine guarding, electricity, falls, employee training, combustible dust, and engulfment hazards. In addition, the family of the 14-year-old boy killed in the accident had filed a wrongful death action against the employer.
The Occupational Safety & Health Act of 1970, 29 USC 657(b), allows OSHA to require the attendance and testimony of witnesses and the production of evidence under oath, using subpoena power. If a company will not respond to a subpoena’s mandates voluntarily, then the agency can apply to the federal district court to order persons to appear or companies or individuals to produce evidence pursuant to court order. MSHA currently has limited subpoena power (the agency must convene a public hearing to issue subpoenas per the 1977 Mine Act), but the pending mine safety reform legislation (S. 153) would give MSHA subpoena power that is comparable to OSHA’s authority.
OSHA uses the statutory subpoena power in various ways, including as a discovery mechanism after citations and penalties are issued, as well as in the initial investigation phase, to gather evidence before issuing any enforcement actions. Most commonly used in serious accident cases, OSHA can also use subpoenas to obtain documents or testimony in routine inspection cases, as well as complaint-based inspections. When used in a non-accident situation, it’s been my experience that OSHA tries to lay the groundwork for a “significant” case (proposed penalties in excess of $100,000). Subpoenas can also be used in fatal accident cases to gather sworn testimony that can then be used in applications to Grand Juries for criminal indictments.
Its administrative subpoena process gives OSHA broad power to obtain records, if the investigation is within the agency’s authority, the demand is not too indefinite and the requested information is relevant to the authorized inquiry. The agency’s “authorized inquiry” has been interpreted broadly by one court to include any information “relevant to any inquiry that the Secretary is authorized by law to undertake.” As a general rule, courts will enforce an administrative subpoena if: (1) it reasonably relates to an investigation within the agency’s authority; (2) the specific inquiry is relevant to that purpose and is not too indefinite; (3) the proper administrative procedures have been followed; and (4) the subpoena does not demand information for an illegitimate purpose.
Winning a Challenge
As a result, given the latitude in these criteria, it is difficult for an employer to win a challenge to the scope of an administrative subpoena based on the commonly asserted ground that the information is not relevant to an employee complaint. Nevertheless, the employer does not risk a contempt citation by claiming the subpoena is overly broad and moving to quash the subpoena or forcing the agency to seek judicial enforcement. Moreover, if the party objecting to a subpoena claims that documents sought by OSHA are subject to an applicable privilege (e.g., attorney-client communications or attorney work product), this defense can be asserted and often the US District Court will conduct an “in camera” review (judge’s eyes only) to determine if the asserted privilege is applicable. In such cases, the subpoena will be denied enforcement over those privileged documents.
What got the attention of the safety and legal community in the Grinnell case, however, was that the subpoena was used against a third party – the worker’s compensation insurance carrier – rather than against the employer itself. Moreover, the documents sought by OSHA were inspection reports and other documents related to the safety of Haasbach’s workplace and communications between the company and its insurer. Grinnell opposed the subpoena claiming that it would be irreparably harmed by turning the documents over, claiming that they were privileged under Illinois law and that they “might find their way into the hands of the plaintiff in the state court suit” against Haasbach.
Most critically, Grinnell argued that enforcement of the subpoena would have a “chilling effect” on the common practice by businesses of having their insurance carrier conduct safety inspections. Employers will be reluctant to do so if the material in the insurance carriers’ reports could be used against the company in OSHA enforcement proceedings, or be secured by plaintiff attorneys (through OSHA) for use in later tort litigation.
In the Grinnell case, OSHA sought copies of site safety inspections, applications for insurance coverage for the worksite, and correspondence between Grinnell and Haasbach concerning the insured site. The court found that these documents reasonably related to the accident investigation and the question of OSHA jurisdiction. The court failed to see why, in light of its concerns about the availability of such documents to the tort counsel for the deceased worker, there was nothing that could be done short of denying OSHA the documents (e.g., putting the documents under seal by the court).
Grinnell’s attorneys also argued that OSHA policy recognizes the need for confidentiality of safety inspections. The court found that this reflected an internal policy that was non-binding and did not create legal rights in third parties, as it was limited to voluntary “self audits” by employers. The court held that the insurance company workplace safety audits were not employer “self-audits” but were “loss control” reports prepared by the insurer. Although the court acknowledged Grinnell’s argument that production of the documents could chill the willingness of other businesses to let their insurance companies conduct safety audits, it said “correcting that problem is a policy decision to be made somewhere other than in the federal courts.”
As expected, OSHA welcomed the ruling as it helps to secure the agency’s right to demand such documents both in accident and non-accident cases. OSHA Assistant Secretary David Michaels declared, in an agency press release:
The court affirmed OSHA’s authority to obtain relevant information from an employer’s workers’ compensation insurance company. This is not surprising legally, but it does illustrate that workers’ compensation and OSHA are not separate worlds divorced from each other. Workers’ compensation loss control activities overlap with OSHA’s efforts to bring about safe and healthful workplaces, and in order to achieve a safe and healthful working environment for all Americans, all efforts of business, insurance, labor and government must move forward together.
Any employer faced with an MSHA or OSHA subpoena (either in an accident investigation or in an inspection triggered by a complaint, referral, or other agency criteria) should get counsel involved promptly before any documents are produced or any testimony taken. As noted, a subpoena is a clear signal that the case is one that the Department of Labor is taking extremely seriously, and it may have the potential for criminal prosecution, or mega-fines. Any available privileges should be considered and correctly asserted as quickly as possible to quash the subpoena if at all possible. Otherwise, the documents and testimony obtained can and will be used against the company and its agents in legal proceedings of all types.