Every month, a reader asks one of our sponsor legal experts about a work-related issue. These building trades law professionals respond in an Organized Labor exclusive. This month’s expert is Kevin Lancaster of The Veen Firm.
My employer was cited by OSHA for violating a safety regulation and fined concerning my serious workplace accident. My WCAB lawyer and my civil lawyer don’t know anything about what’s going on with the OSHA matter. Should they? How does that process work?Your lawyers should know the status of the OSHA case and should understand how the OSHA process works.
Cal/OSHA gets involved following notification by an employer of a “reportable” injury or a citizen’s complaint. If the inspection of the workplace discloses a violation, they may cite the employer, demand the safety condition be fixed (abated) and fine (penalty) the employer based on a host of factors.
It’s not unusual for the employer to hire lawyers to challenge (appeal) the citations and/or the penalty. The appeal is heard before an administrative law judge. Sometimes, OSHA doesn’t have a lawyer present at the appeal – although the employer is represented by counsel. This kind of a situation in which OSHA is “outgunned” by the employer could result in a negotiated settlement with no penalty imposed and a reduced citation. In other words, you and your co-employees don’t get the workplace safety bang for your taxpaying bucks.
The reason your lawyer should know the status of the citations/fine is to determine if they are being appealed; are you being blamed for your accident; and is OSHA going to assign an OSHA lawyer to defend the citations/fine? Your lawyers must determine if your WCAB or civil case will be affected by the appeal’s outcome.
However, your lawyers can participate in the appeal by filing for “interested party” status in your behalf. Your lawyers can uphold OSHA’s case and gather proof, which might benefit your WCAB claim or a civil lawsuit, and do a public service ensuring workplace safety.
In conclusion, your lawyers should at least communicate with OSHA’s district office that investigated your accident, determine if the employer was cited, and if the employer has appealed. With a copy of the OSHA investigation and file, it should be determined if “interested party” status can help your case(s) and/or improve workplace safety for you and your co-workers.
-Kevin Lancaster, Trial Team Leader; The Veen Firm, PC, San Francisco, CA
“Interaction via “Ask the Expert” does not establish an attorney-client relationship. Any advice given is neither legal advice nor does it serve as a replacement for hiring an attorney. In addition, any case results mentioned or discussed are not guarantees of similar results.”
This Month's Expert; Kevin Lancaster
Mr. Lancaster joined The Veen Firm, PC in 1984 and since has litigated more than 30 product liability cases, including industrial products, tools, and machines. Mr. Lancaster typically represents individuals who have suffered catastrophic injuries, including union, non-union, construction, and agricultural workers. He has served on the OSHA Advisory Committee and has spoken before the CA Senate Committee on Labor and Industrial Relations about issues of concern to injured workers.