On the front lines with Fisher Phillips:
by Travis Vance and Pamela Williams
An employee is electrocuted while working on a breaker box. After the incident, OSHA conducted an inspection and issued serious citations to your company relating to an unauthorized employee working around energized parts without adequate protection.
Your company decides to contest the citations because the employee was not authorized to perform electrical work, company policy (on which employees are trained) prohibits unauthorized persons from performing electrical work and no supervisor saw the employee performing the work. You have the written policy prohibiting unauthorized electrical work, the employee’s signed training records on the policy, audits showing that the company inspected for compliance with the policy and disciplinary records showing that the company disciplines its employees for safety infractions.
How do you handle this situation? First, you request an informal conference with OSHA to see if you can reach a settlement or if OSHA will vacate the citations. The corporate safety manager, the operations manager and (hopefully) your attorney attend the conference. During that conference, the operations manager blurts out that he is aware that other employees have occasionally done work around breaker boxes without proper authorization and credentials to perform electrical work.
Unfortunately, OSHA then declines to offer a meaningful settlement. You then contest the citations and proceed through litigation. At trial, OSHA seeks to introduce the statement made by the operations manager during the informal conference where he indicated that management knows unauthorized employees have performed electrical work. Are the manager’s comments admissible?
Informal conferences are settlement discussions
Informal conferences are held to “discuss any issues raised by an inspection, citation, notice of proposed penalty or notice of intention to contest” (29 C.F.R. § 1903.20). Their purpose generally is to negotiate a settlement of the case before proceeding through litigation. The Occupational Safety and Health Review Commission (OSHRC) has no specific procedural rule about whether statements made during settlement negotiations generally or informal conference specifically are admissible.
OSHRC Rule 120 provides that statements made during settlement conferences before judges with the OSHRC are “confidential and shall not be divulged outside” of the settlement conference (29 C.F.R. § 2200.120(d)(3)). Further, OSHRC Rule 71 provides that the Federal Rules of Evidence apply to proceedings (29 C.F.R. § 2200.71).
Under Federal Rule of Evidence 408, neither (1) an offer or acceptance of an offer to settle a claim nor (2) “conduct or a statement made during compromise negotiations about the claim” are admissible “to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction” (Fed. R. Evid. 408(a)).
What this means is that your company making an offer to settle at an informal conference is not admissible to prove that the citation is valid, nor can statements made during informal conferences be used to prove that the citation is valid. In the example described above, then, OSHA cannot introduce the operations manager’s statement to prove that the company violated the OSH Act by allowing unauthorized employees to perform electrical work.
Employers should be aware that the rule has an exception, however. Conduct and statements made during settlement negotiations, as well as offers to settle, can be admitted “for another purpose, such as proving a witness’s bias or prejudice” under Rule 408 (Fed. R. Evid. 408(b)). If, for example, the OSHA inspection resulted from a union complaint and the operations manager states “You can’t trust anything a union says,” this statement potentially could be introduced as demonstration of a claim that the operations manager is biased.
It may not be admissible, but it can still hurt
While the operations manager’s statement is likely not admissible at trial, it could still negatively impact the company. Specifically, OSHA may use the comment to conduct targeted discovery by asking questions in interrogatories and depositions about the company’s practices and knowledge regarding electrical work by unauthorized employees. If OSHA obtains evidence that supports the operations manager’s statement, it may be able to introduce that independent evidence at trial.
Best practices for informal conferences
If you decide to contest a citation, seriously consider retaining legal counsel. Your attorney should know what OSHA must prove for each citation and can identify weaknesses in OSHA’s position.
Further, the attorney can represent you and speak on your behalf at the informal conference. Your attorney should, in fact, do most if not all of the talking. Nothing the attorney says is admissible for any purpose and the attorney is much less likely to reveal information that could help OSHA prosecute its case. Experienced counsel can most effectively advocate for your interests, protect against unintended disclosures and may be able to help you favorably settle a case.
Travis Vance is a partner in the firm’s Charlotte office. He can be reached at tvance@fisherphillips.com or 704•778•4164. Pamela Williams is a partner in the firm’s Houston office. She can be reached at pwilliams@fisherphillips.com or 713•292•5622. Visit their website at fisherphillips.com .
