On Wednesday, January 15, 2014, Matthew Korn discussed how to effective contest citations under the Mine Act. Matthew focused on preparing your Company for an inspection, what to do during the inspection to reduce your liability, and effectively handling the contest process after the inspection. The presentation provided useful strategies to reduce the potential penalties you may face during an MSHA inspection. Matthew reviewed the Simplified Proceedings process and discussed the best way to present your case to MSHA or the Review Commission.

1. Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
Workplace Safety Wednesdays:
Effectively Contesting MSHA
Citations
Presented by:
Matthew R. Korn
(803) 255-0000
mkorn@laborlawyers.com
www.workplacesafetyandhealthlaw.com
www.laborlawyers.com
Atlanta · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville
Memphis · New England · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix · Portland · San Antonio · San Diego · San Francisco · Tampa · Washington, DC

2. Reducing penalties overview
• What’s the big deal?
• What can I do to prepare
in advance?
• Is there anything I can do
during the inspection?
• What about after the
citation is issued?
Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com
Phone (803) 255-0000

3. It’s just a few points, so what?
Reasonably Likely  Unlikely = 20 points (30-10)
Permanently Disabling  LW/RD = 5 points (10-5)
High  Moderate = 15 points (35-20)
Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com
Phone (803) 255-0000

4. 10 points can’t make that much of a
difference, can they?
Penalties
$70,000
$60,000
$50,000
$40,000
$30,000
Penalties
$20,000
$10,000
140
130
120
110
100
90
80
70
60
$0
Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com
Phone (803) 255-0000

5. Collateral consequences?
• History Points
• Pattern-of-Violations
(POV) Criteria
• Independent Contractors
and Construction
Companies
Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com
Phone (803) 255-0000

6. Is there anything we can do?
• Preparation
• Explanation
• Contest(ation)
Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com
Phone (803) 255-0000

7. Pop Quiz #1
What must MSHA prove to establish an
S&S citation?
1. Violation of a mandatory health or safety standard.
2. Discrete safety or health hazard.
3. Reasonable likelihood of injury or illness.
4. Reasonable likelihood of serious injury or illness.
Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com
Phone (803) 255-0000

8. Prepare for the inspection
• What do we need to know?
–
–
–
–
S&S test
Unwarrantable failure
104(d) “chain”
Statistics
• Who should we train?
– Managers
– Supervisors
– Employees
Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com
Phone (803) 255-0000

9. Once the Inspector arrives
• Document everything!
–
–
–
–
–
Notes
Pictures
Maps
Measurements
Witness statements and
affidavits
Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com
Phone (803) 255-0000

10. It’s all a matter of perspective . . .
Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com
Phone (803) 255-0000

11. Pop Quiz #2
What factors contribute to an
Unwarrantable failure?
1. Amount of time condition left uncorrected.
2. Was condition particularly serious?
3. Was this a repeat violation?
4. Was there deliberate activity involved?
5. Did operator know or have reason to know?
Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com
Phone (803) 255-0000

12. Once the Inspector arrives
• Explain position
– Read standard
carefully
• Opportunities during:
– opening conference
– walk-around
– closing conference
Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com
Phone (803) 255-0000

13. Pop Quiz #3
What are the required elements of a
safe access citation under 56.11001?
1. Safe means of access
2. Shall be: (a) provided; and (b) maintained
3. To all working places
Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com
Phone (803) 255-0000

14. After the Inspector leaves
• Request for informal
conference
• Must be within ten (10) days of
issuance of citation
• Should include facts supporting
contest of citation
Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com
Phone (803) 255-0000

15. What if MSHA says NO?
• Notice of Contest
• Post-Assessment Contest
• Penalty Petition
• Settlement Negotiations
• Credibility Matters!
Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com
Phone (803) 255-0000

16. Preparing for the hearing
• Proper preparation for
depositions
• Examining MSHA Inspector
– Experience/Qualifications
– Determinations
– Past History
• Examining your witnesses
Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com
Phone (803) 255-0000

17. When to involve counsel
• Long-term costs of compliance
• POV, flagrant, special
assessment, 104(d) chain
• Fatality or reportable injury
• Depositions/Hearing
• Union activity
Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com
Phone (803) 255-0000

18. Conclusions
• Modifications and penalty
reductions matter
• Preparation is important
• Be informed
• Clearly and credibly articulate
arguments
Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com
Phone (803) 255-0000

19. Upcoming Workplace Safety Wednesdays
• February 19 – Safety’s Role in Labor Relations
• March 19 – Criminal Liability under the Mine Act, OSH Act,
and Environmental Laws
• April 16 – ADA / FMLA Issues for Safety Professionals
Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
www.laborlawyers.com
Phone (803) 255-0000

20. Fisher & Phillips LLP
ATTORNEYS AT LAW
Solutions at Work®
Any Questions?
Thank You
Presented by:
Matthew R. Korn
(803) 255-0000
mkorn@laborlawyers.com
www.workplacesafetyandhealthlaw.com
This presentation should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for
general information purposes only, and you are urged to consult counsel concerning your own situation and any specific legal questions you may have.
Fisher & Phillips LLP
www.laborlawyers.com
ATTORNEYS Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas · Los Angeles · Louisville
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Solutions at · Portland
www.laborlawyers.com
Phone (803) 255-0000