In this episode, Sheldon talks to attorney Phillip Russell about labor law related to worker safety and OSHA.
I help businesses when OSHA shows up for an inspection following a fatality or other reason. I have represented clients in construction, manufacturing, and other high-hazard industries in over 100 fatality cases and hundreds of other types of cases. I make sure OSHA conducts a proper inspection with the goal of avoiding or minimizing a citation. I also defend businesses when OSHA tries to enforce a contested citation by filing a complaint with the U.S. Occupational Safety and Health Review Commission.
Keywords: Phillip Russell, OSHA, Lawyer, U.S. Occupational Safety and Health Review Commission, Ogletree and Deakins, Multi-employer doctrine, Informal Conference, Joe Biden, Democrat, Republican, Donald Trump, Safety and Health, EHS, Safety FM, Jay Allen, Administrative Law, COVID-19, Cleveland, Tennessee, Chattanooga, Florida, OSHA Compliance, Safety Consultant, Field Operation Manual, Compliance Letter, Notice of Contest, Legal defense against citation
[00:00:00] : Well, this episode is powered by Safety FM. Well the way. Welcome to the safety consultant podcast. I'm your host, Sheldon. Premise. This is a show where I teach you the business of being a safety consultant. Uh, this week, we have a very special guest, Philip B. Russell. He is a board certified OSHA as strategic labor and employment lawyer from the Tampa area, but his company or, uh, he's a shareholder at Ogletree Deacons in Tampa, and they actually are pretty much they go anywhere. So is one of those lawyers that, uh, you call when OSHA shows up. I know you can call a consultant. Yes, but there's some things where, you know, I'll go with an informal conference with you, but if you kind of do a notice a contest, I ain't your guy. You're going to a law office for that one. So you're getting a lawyer. So when you lawyer up, OSHA lawyer is up and you're gonna do that contest in front of your administrative law. Judge, call Phil. He's your guy. So he has actually done over 100 fatality cases and hundreds of other type cases in his legal career. So he specializes in construction and manufacturing. Uh, you cannot go wrong with a certified lawyer, board certified lawyer and truly feels of just his look him up on LinkedIn and you'll be like, What? What's this man got time to do? Uh, he's truly like one of those, uh, special type of people that even has one of those rankings where he's rated and one of these big rating companies as being a top five attorneys in Florida. So that's one of those things that you're like. Wow, the man's got it. So I was so happy that he was able to do some time with with me, and we talked and kind of geeked out a little bit about, you know, the OSHA rules and the laws and different things related to that multi employer work sites. And it was really great. Uh, I knew him through my business partner, Kevin Yarbrough, whose eggs, OSHA and, uh, Yarbrough myself have a business called Shell Bro. Safety, uh, and we I met Phil along the way through Yarbrough, so we had a really good time, and I really wanted him to explain a whole bunch of things OSHA related for the audience. So that's why I got him here. So have a great time listening to the episode, and I will check you guys out on the flip side. That's next week, so go get them. Well, good afternoon, Sheldon. I'm Philip Russell. I'm with the law firm of Ogletree Deacons for an international law firm of labor and employment lawyers, and all we do is labor and employment law for businesses. For the employer side, I personally have a particular niche and OSHA law. So I have gotten over the years to be a go to lawyer, especially in the construction industry and especially whenever there is a fatality or some other catastrophic accident in the workplace or results in maybe not a fatality, but maybe an amputation, hospitalization or something like that. I've handled hundreds of cases with OSHA across the country, mostly in Florida, that lately a lot up in the New York New Jersey area, and I've handled well over 100 fatality cases, including many that were high profile cases you would see in the news involving multiple workers. So that's what I do have been doing this 26 years. I learned from one of the best, a man named David Jones who no longer with us. That was a good friend and mentor and, uh, and taught me to be the OSHA lawyer. I am. I'm on a team of absolutely fantastic OSHA lawyers across the country and our practice group of the firm. And, uh and I love what I do. It really makes a difference. You know, we're not just sitting in a conference room arguing about whether someone who did or didn't violate the law. I get to wear boots and jeans more than I wear coats and ties can. And there's a litigation aspect of what I do. And I got to put a coat and tie on if there was a judge in the room. But before we get to the litigation part, I gotta I go into the field so I keep boots and jeans here in my office, ready to go. I've got safety act glasses, gloves and all the PPE and my truck ready to go. Wow. Uh, and, uh, when it's funny that you say, you know, you've got your genes and everything. I just remember those, uh, those early stories of lawyers who are doing depositions in there, you know, hanging out in their shorts and T shirts in front of a judge and zoom. Well, I made sure that I disabled my cat filter so that I do not appear that way on my informal. I forgot about that one. That one was recent, wasn't it? It was. And it was absolutely fantastic. But it illustrates a point that I just made in my lengthen posting today about doing informal OSHA informal virtually. And one of the tips I gave in there was. Make sure you know your technology. It is 100% on you. The lawyer, the safety consultant, the advocate, Whoever you are to know your own technology, you can't just say, Well, that's not my job. It is your job. You need to know it. Yeah, that's excellent. Wow. Uh, for the audience getting to know you. What's your background? How'd you get into? Uh, not only law, but then you also got into specialty. That means that there's also behind that some entrepreneurship. So you may have been starting earlier with with entrepreneurship leading up to where you are now. Well, I'll tell you, I got I go all the way back to the fact that I'm a Ramblin wreck from Georgia Tech. So I went to Georgia Tech. I'm actually not an engineer, but I did go to law school after going to Tech and got into employment law. I think primarily because I did come from an entrepreneurial family. We were in a family of, uh, that owned my grandparents on the grocery stores back in East Tennessee when I was growing up in Atlanta, would go visit with them, and in fact, my first job was bagging groceries and my grandparents grocery stores. So I learned I learned the value of hard work. I learned, you know, management from a care and heart perspective as opposed to autocratic, commanding leadership style. And how I got into safety was interesting. It only was about 10 years ago when I was doing labor law and employment law for a group of clients, mostly in the construction industry and mostly here in Florida in road and bridge building. The transportation construction industry and I had some clients that had some accidents that were where some employees got killed or or had other serious injuries, and ocean showed up. The client didn't know what to do, so they called me, and at the time I just joined Ogletree and I called David Jones and was in Atlanta at the time. And I said, David, what do I do? Come on down here And he said, No, you learn it, You figure it out, I'll help you. And as as good mentors do, he just threw me into the ring of fire. And, uh, one of the first folks I met at Osho is still in assisted areas. Now in the Houston area, Director has become a good friend and the advocacy since meaning that she stiletto, should we still fight hard? But we respect and like each other. And so I've learned a lot from from my mentors. Like David. I've learned a lot from the folks at OSHA, but what pulled me in was client clients just need to help. Well, um, what part of East Tennessee So they had stores outside of Chattanooga and then one store outside of Knoxville little ditty store named Pruitt Food Town, which again I'm now I'm going way back because that was back when there were family on grocery stores not big box retailers today. Uh, the reason why I ask is I live two years in Cleveland. If you know where Cleveland Tennessee is, it's right. There it is. I know exactly what is right near Ulta wa where as one of their retirement homes was. So I know exactly what that is. Oh, yeah. So once you said that, I'm like, hold on, I went to the store. Well, if anybody listening to this podcast, you know, recognizes Pruitt Food Town in or around Chattanooga. My grandfather, uh, Kenneth Russell owned about five of them at one point, and and again, that's what I learned. That's what got me motivated to be a lawyer and to be a lawyer on the business side. And when I found Sheldon is I've actually made more of an impact on individual workers, live being a management side lawyer. Then I think I would ever have made if I were an OSHA person or an ocean lawyer or if I were a plaintiff lawyers suing the company. Because when I get into a client and I get that trusted relationship with the client and they listen to guidance, I can make a difference, and that's been really rewarding in my career. Yeah, now that sounds pretty good. And you've got, you know, anybody all they need to do is look you up and they look at your career list after list after list of things that you've done and accomplishments and ways you've given back, and so that that just means that you're passionate about what you do. So that's that's the and I hear it. I hear that passion. Well, you know, I'll tell you, Sheldon, I'm I'm a blessed man. If I may say so. You know, I have learned that, you know, I cannot claim these skills, these talents, these experiences, to be mine. God has just put me in a place that you needed me to be. And my job was to just try to recognize that and do the best I can. So I just do the best I can and and and put the rest in God's hands. And the results have been humbling, you know? And you've seen OSHA go through different administrations. So when I teach my students and I do teach for a class and, uh, where the outcome is, uh, the students one compliance really deep. I'm very deep in compliance because as a consultant, you have to be. But when they also get out of the class, I really make sure that they understand. OSHA is one of those organizations that will transition depending on what administration meaning Republican or Democrat. And I said for you know, for as long as I remember, and probably as long as there has been no, just in 71 as the administration, every time there's a Republican. Oh, she's a little weaker, Uh, and that's Yeah, traditional. There are some some cases where, uh, impact of something means that OSHA has to be stronger in one particular area, such as a refinery accident or something similar to that, or a rise in a trend for some sort of fatality. But generally speaking, they're a little bit more on compliance assistance when it's, uh, when it's a Republican administration, and then when the Democratic administrations they're harder on compliance enforcement. And that's the way I've been, uh, been instructing students just, you know, be pliable. Be ready for these changes when they're happened. Have I instructed these students correctly in that? Yes, absolutely. It is the carrot or the stick. Democrats like the stick Republicans like the carrot. That's simple. And I would tell your students to get ready for more sticks because they're coming. Yeah, I honestly believe that. And I I'm tossed. I have to tell you, I'm tossed. I understand the point of the business owner, and I understand that, um, I know for selfish reasons that compliance does pay the bills. And I know you have a variance of that a cell in your in your business, but it's not like you want to see someone gets, you know, cited in any way. You don't want that. But you want to be there to help them if they're there. And you know, there's reasons for citations, but you want you also know that is, uh, it is part of the way that we make money. Uh, so I'm the host with that, Uh, do you get that as well? Well, here's the Here's the dilemma. I think you've touched on something that I think it's very interesting if you're a compliance officer and you are going in doing an inspection for ocean and you don't see anything, but you're told that you need to see something, What you do with that because that's the orientation right now of the agency. We know that the area offices are being told that enforcement is going to go up. We know from the inspector general's report yesterday that the government thinks that OSHA hasn't done its part, and we know that one of the implications is there will be more inspections. They are, as a whole being told to inspect more workplaces and find more violations. My job on the other side is to hold the government accountable. It's that simple. The law created ocean in 1970 the a Shock said, We need a federal agency responsible for workplace safety. Asked by many people don't know this, the Richard Nixon administration. So a Republican created ocean and the e. P. A. By the way, that's a subject for another. Another podcast. But an interesting history know what's important to know is that when this agency was created, it was created, uh, for balance, for both enforcement and for the compliance side or for the education side. But it does shift in focus, and right now we're looking at far more enforcement, so our job safety professionals, jobs, our job. Now what I'm saying, I'm from Amy and you folks that work with companies, uh, and your listeners our job is to hold the government accountable and to show where the line is created by that are shocked, limited by believe it or not, the Constitution, particularly the Fourth Amendment, and what the government can and can't do. And if the government has the evidence to prove a violation, I look at my client and say, Let's fix it, Let's work on it. Let's make sure it never happens again. But the government needs to cite the right violations right standards and meet the right evidentiary requirements. And if they do fine, I'll work with you. If they don't, I'm going to hold the government accountable. That's what we do. Get any citations vacated? Oh, yeah, like that. Oh, yeah. Oh, yeah. Believe it or not, OSHA doesn't always do what it's supposed to do and the beauty of it. And here's what I love going back a little bit wonky this year, but OSHA doesn't decide if OSHA got it right. There is an independent federal agency set up in the Osh Act in 1970. It's an agency called the Occupational Safety and Health Review Commission. There's a three member commission appointed by the president confirmed by the Senate, and they have a group of administrative law judges that here contest two citations. And I think that was a really brilliant way to do this because unlike the National Labor Relations Board, OSHA is not the judge, jury and executioner. OSHA has to be held accountable before this independent agency before the commission, and that's why it's important when you look at the inspection. I think all too often folks look at the inspection before the citation is a separate occurrence. It's just like a separate case. That's a separate matter. And some don't even call a lawyer till you get the citation. And I think that's or a or a good safety against the other expert. That's a mistake, because in OSHA we have a chance to influence what the file looks like. That's not true. In any other employment matter. We can control what the evidence looks like. Let's jump in. Let's help. Let's make sure that that evidence meets the standards it should meet so that we can. We can show the commission that OSHA got it wrong. And if I can do that in the informal, OSHA will vacate the citation. Excellent. And I usually tell my students whenever OSHA comes up Oh, it is a participative sport. Just don't go back and, you know, hands off and Milito should do what they want. I've had a client before where OSHA came in and, uh, in the opening conference told him that, uh, we're here because someone that left your organization complaint that you didn't pay for PPE and they show them a records of paying for PPE. And this compliance officer in Florida decided. Well, while I'm here, would you mind if I open up a comprehensive inspection? And you probably know where that goes, right? Oh, yeah. Here's the Let me just, uh here's the rope with which I'm going to hang you go right ahead. Wow. Really? Is what he ended up doing is saying, uh, it's a compliance officer. It's a word can come out of his mouth, but he says, Well, I'm done with this inspection, So therefore I'm going to open up another inspection. Truly it You're supposed to stay at that time is respectfully, sir. I like to stay in the scope of this inspection. Unless you've seen imminent danger or something else that would weren't you going and opening up a comprehensive inspection? Uh, let's stick with this dope as you're right. And, uh and that's how I I, uh I phrased it, but I got it afterwards. Me and Kevin Yarbrough, uh, me and your bro got the call later on from from the insurance company, I believe is the one who called us. And, you know, we both were shaking their heads like I do that when you look at it from that view. Sheldon, I mean, you know, you guys and Kevin I mean, you guys know what you're doing, but here's the strange thing about this is what this is why I've gone on my my advocacy trip lately through my linked in postings and talking to you is, I want employers to know some of the myths, and one of those myth is that a compliance officer from OSHA is a law enforcement officer. They're not, and OSHA the agency doesn't have the unlimited ability to show up on any job site and just do what they want to do. They don't have those rights. And in fact, if you actually look at the statute itself, it doesn't seem to require a warrant. But that's okay because the Supreme Court very clearly said it doesn't need to say it. You're a government agency. You cannot do warrantless inspections. The only way you're on a job site is under those limited circumstances. And you have to keep the scope limited to the scope. Great points for your students. Yeah, and, um and truly, I tell them, if I was just taking a picture, you're taking a picture. If they're measuring your measuring, especially if you have a an I h r a calibrated instrument and you're certified to use this instrument, then all right, that could be an instrumental record. And make sure that if you find a discrepancy to note to OSHA that I have found a description Eisley discrepancy. Please put that in your notes because they have the official notes. So if you don't say something, it's not going in that. And now we've got nothing to fight with. If you don't put that in your notes and, uh, I am, I am I steering them wrong in this one? Or is that what we should be doing? No, you're spot on. And that's what Kevin said last week. I heard him speak to both a group of construction, uh, folks that he and I are both at the same conference. He said the same thing, and I think that deserves some true emphasis. Asking the co show to put something in his or her notes is something we did we need to do. I'm gonna throw one more tip at you. When? When When the compliance officer is taking a picture, no matter how their body is contorted, laying on the ground, elbow a right leg of, you know, pinky out. Whatever it takes to take that picture, you not only do the same thing, but here's the hot tip. Ask them why they're taking that picture. Mm hmm. So because it turns out now, you know, the standard advice here is Beware that even on a walk around, you might be subject to an interview. And I've seen co shows, notes and a violation. Reports in litigation show what was said during the walk around, but it doesn't go both ways. So what I say to clients that don't answer their questions. But ask them a lot of questions. And one of those, my favorite one, is Why are you taking this picture? Why are you looking at that piece of equipment? Why are you looking at that part of the project? See what you get simple. Why? You know that's so simple. And and no one really thinks that. I didn't think of that. Um and that is just a simple tip of why? Because I know you need to, but getting their perspective because And you're right. Everything especially for for those of you who who are not OSHA compliant and then for you that are in different countries, you have your equivalent of OSHA out there. One of the things that would tell you to look for is, uh, the compliance officers must be trained on a certain level across the whole country. So therefore, we're going to have a documented in some form that's going to leave them to say, Here's our baseline. Here's our homeless Stasis where we'd like to be. So therefore, follow these directives for us. It's called the Field Operation Manual, and with the field operation manual at Thomas. Students use that Learn that printed at work. You don't want to cut that at home, but what do you have that? So, uh, that's one of the tips I always tell people. Watch that field operation manual learn what it is because in that inspection you could see exactly the wording that this compliance officers using and you could go in your mind. Oh, hold on. She's thinking of serious here. And this might be a willful that the wordings that he's saying to me in this conference is to say, this walkthrough reading you towards that, Uh, that's my my experience. Have you had the same? It is that I will tell you one cautionary note about that field operations manual. Uh, although OSHA would like to hold our clients are employers to their safety manuals and guidelines. They don't like it when we trying to hold them to theirs. And, in fact, that field operations manual is not a standard. It is not the law. It is just just what it says. It's an operations manual, and when it has been litigated, the commission has said, well, they don't have to strictly follow what's in the hand of what's in the operations manager of the farm fom and where you'll see that sometimes I have a client called me up and say, Wait a minute, we can get this vacated at the informal Philip because we never had a closing conference Doesn't matter. You're not going to be able to vacate a citation for that reason. Maybe there are other reasons, but not that one. But good advice. You give your students, perhaps supplement it with learn it, understand it because what you said Sheldon is important. You want to know what's in his or her mind? What are they thinking? What are they doing? But don't plan to use it in your defense, it likely won't help them. What do you do when you get that call and or even passed a call and you know that you're gonna end up in a notice of conscious contest? Uh, and you're gonna while their notice of contest was was given. So now you're going to sit in front of administrative law, Judge, Uh, how do you prep for those events? You know, first things first is it's all about the people I want to know if the you know what area office was it Who was the co show involved in the inspection? Where there, anyone else involved? Was there a trainee involved that impacts my my analysis on the case? Then I want to know if the solicitor has been assigned yet in the region for Karen Markus, the head solicitor, as Karen assigned one of her team to the case. If so, who is that person? Is that somebody I knew? Likely I do. Or one of my colleagues will. It could be region to one of the other regions. We have a large group. I also want to know if the judge has been assigned. So I begin with the people because I want to know who those folks are, who those decision makers are. I've done this long enough to know their tendencies and their preferences and what they're focusing. The next thing I want to know is the quality of that inspection. What I need the client, preferably the best time to call me is when the accident happens. Not when the citation is delivered that I can help in the inspection, and I've done it either with or without consultants. Sometimes Sheldon, I'll use a consultant will work together. I've done it alone. Do that way, too. There's different combinations for different reasons, but when you work through that inspection, I want to. I want our file to be as closely replicated to OSHA's file as possible. So the worst case scenario is yes. We sent a whole bunch of documents into OSHA. We don't know what we sent. We didn't track it. Yes, they did interviews, but no, we didn't take notes during the interviews. Those are problematic situations because I don't know what the case looks like, so I can't value the case at that point. From a legal perspective, I can't evaluate whether the government can can establish its elements of the claims whether we can assert any affirmative defenses. So I have to at that point simply start the litigation process, which gets to be expensive, time consuming and takes a while. We have to get the government's filed, but even when we get it, you know this. You've seen those big black marks they love. They read, act a lot of the content, so it still is not ideal. So that's what I look for. Who are the people? What's the evidence? What's the quality of file and let's talk about then we're going to get to this once I've evaluated. What is the client looking for? What's the outcome you'd like me to achieve? Have you found out? Sometimes you're trying to throw, uh, hazard without exposure, uh, or or vice versa, especially if in a multi employer doctrine, when you're looking through that, uh, specifically for construction. You're looking at those multi employer doctrines where there's a role for the exposing employer, and, uh, the well, my understanding is. And let's make sure I'm getting this right for whoever is going to be the controlling employer. There's only one allowed even though you to have multiple roles, you could be an exposed an employer. You need to be the correcting employer in this doctrine doctrine. But the controlling employer can only be one person, right? I don't think that's right. Okay, which one? Please explain because I want to make sure I'm right myself. So yeah, I just think that there can be multiple controlling employers, and I want to be careful here because I have some open files open cases right now, and I don't want anyone listening to get my strategist, but I think they're actually let me just put it this way. Showing OSHA certainly does not feel that it is limited to just one controlling employer for a set of citations. Uh, it has the view that it can be multiple, and I will. I'll share this. I'll share this example. I have a case. I won't tell you where. Other than not Florida, where I am representing, uh, all the subs and the general contractor on this construction site, we've all agreed we're not pointing fingers at each other. There's not a conflict from a legal perspective, but OSHA. The first thing we had to do was to determine what the solicitor litigated case who sits into which of those buckets. And in that case, OSHA is trying to have multiple controlling employers, multiple exposing employers, multiple creating employers. Everybody is everything to OSHA in that case, So, legally speaking, no, this is where I stand on the line. Say no, no government. You can't do that. And I think that you can have a controlling employer. That's the G C. But you can also have subs that are controlling employers for their scope of work. So now you get into parsing out Well, then, who was responsible for what On the job site. What were they supposed to do? Yeah, And then you could go even more meta as saying at the time of this instance, when there's an exposure, who was the controlling employer for this worker that was exposed? Now you're really getting into my strategies and in that case, because that's exactly where we're going. Yeah, and that that would really break it down for me, because truly that's the way I'm thinking. Especially now that you've opened my mind a little bit more about multiple controlling employers because I always used to thought of Think of it as who has the purse, the purse strings. You know, if I were to say, you know, you follow my rules, or now I'm not going to end up paying you or I'll just get another sub. So that's why I always would say just that one person that's got the ultimate control of the dollars it is an interesting point. You raise and even, you know, the multi employer citation policy is misnamed because although it is a policy that OSHA wrote a couple of decades ago now, it actually has become the law of the land because when it has been litigated through the commission process, the review commission, it then has been bounced out into all of the federal circuit courts that review what the decisions are that come out of the review commission. And as of two years ago, the fifth Circuit finally joined everyone else that looked at it. So now, universally, is accepted as essentially the law, however, shout out to my colleague R staffer who was around when they wrote the act and is A is an absolute guru. As he points out, It still isn't technically the law, and Mr Russell, it's still not technically the law, but it is something because it never went through the rule making process. But it is something your students need to really know. That if they're on this margin on this area you're talking about, it has been acknowledged that that is guidance. It is policy, but you still may have some arguments about that role. Don't just assume the role is give. Yeah, well, that's problematic. If OSHA wants to give everybody, uh, the particular role on because the document says, uh, if you're going to go for a legal defensive in Citation that you can't be the correcting the employer, you can't be the, um well, you could be the control employer, but you can't be responsible for correcting this hazard. You can't be the creating employer. So now if you have an exposed worker and you're going to go through the steps of the legitimate defense that says, you know, I told everybody that there's a hazard over here and in extreme cases, I did something to protect my workers. Are we got off the site? So now that you're you're supposed to be the legitimate defense against Citation for a multi employer site. So truly if OSHA is giving you those roles of saying you are a correcting employer, then you can't qualify for that. Or if you are the creating employer, then you can't qualify for that. So that that seems problematic to me. Well, and if you're if you're the general contractor, your frustration is this. The two elements for the two points that are made in the multi employer citation policy on the controlling employers. Number one, you have control over the work. The scope of work number two you took reasonable care. Well, there is a bit of a tension between those two because to the extent you have control over the scope of the work, you want to take reasonable care. But you don't want to control so much that a subs area of control has now been invaded, and you now own more than you should. That is always attention. And that's why you see, in contract terms and I'm no construction lawyer. But when you look at, uh, contracts in the construction world, you'll see an allocation of safety. Responsibility is to try and keep those lines drawn as well as can be done no matter what. I have seen the trend I have seen. I don't think I've ever seen this written up anywhere, and I can prove it statistically. But my experience is that OSHA is really getting more and more interested in bringing in the G C no matter what, And so I think that GCS would be a word to the wise from a G C Friends is to be aware that OSHA, I think, is taking more of a view. And perhaps it's well founded, I don't know, but perhaps it is the view that ultimately the g. C make sure that folks get paid and the subs get paid. And so we're going to have the buck stops here, go to G C. No matter what they say about assignment of responsibilities for shaking, okay, and that that makes sense to me. Uh, I've always told students that OSHA can't shut down a job because they don't have the jurisdiction for that. Uh, however, they could do it through if they have a court order. And I would imagine if that would be the case. Am I wrong and that have you seen cases where OSHA shuts down the site? It's so rare, it really is. And that's it's interesting that there again is this paranoid and this fear that Oh, my goodness. So she is here, They're gonna shut us down Well again. They're not law enforcement. They don't have the unilateral right or unlimited right to come onto the job site. They certainly do not have the right to shut down a job. But I would say that if you have employees and imminent is the circumstance in which it would most likely happen imminent danger and that danger is visible from a public place, then you can expect those. I think that perhaps even call local law enforcement and say We need help. We see folks on that roof not tied off, and we need that to stop. Somebody is going to get hurt and then they can go get that. They can also get a warrant fairly quickly. Warrants are not that difficult, but I think that it what may not even be necessary. You might even get an approval for a warrantless search with imminent danger. But it is incredibly rare, and I would imagine that rare could eventually be because how long have they been on the roof? How is it in danger? Because they could have been there, like, all day long. But you're only seeing them, you know, three hours into their work day. Unless you witness someone who's visibly stumbling. Uh, you know, uh, then then that might increase your imminent danger because now you're seeing somebody that that looks like they're going to fall. Well, that's that's the warning of the roofing industry. And I've had some, you know, some clients in that industry. And the warning, it's very clear, is the job you do is visible to everyone. And OSHA compliance officers are people that have to drive from home to work. And if you have, if you have a roofing job on that route, you are going to be subject to additional scrutiny. Uh, in fact, recently, the Tampa office had a roofing job done, and I just laughed about that contractor I'm like, who got the job of being the roofing contractor on top of the building where OSHA sets? Yeah, great. Hopefully to Evans roof because their V p p Yeah, I think that the only roofing contractor in the US the Wiki, I think roofing, uh, calling right. That's the the actual roofing company. Um, is there still the thought with legitimate defense of against your regular citations and a not the multi employer citation where you have to hit your four criteria such as I have a safety health program is disseminated in the language and understanding of my workers. Um uh, three is that I have a system in place to discover if there is any kind of violation of my program, and Number four would be of that. I have a history of holding people accountable when my laws are. My rules have been broken, and now you have a legitimate defensive in Citation saying that what OSHA observed at the time of this inspection was just one rogue worker. It doesn't. It's that representative, our company. And here's why, by these four criteria is that still a thing it is and what you have described, uh, as the unavoidable employee misconduct defense. And if I were the king of the world, I would rename it, and I would rename that defense to the It really is. From the employer's perspective, the I did everything I could to avoid this accident defense because think of the elements you just listed for us. Sheldon. It's not about what the employee did or didn't do. If everything is about what the employer did so before a client ever says to me, or breathe the words Employee misconduct, rogue employee He wasn't wearing his people. He wasn't wearing a seat belt. We're going to ask a lot of questions that you just asked. We're going to ask a lot of sub questions and follow ups because if we can nail those elements, then I'm going to show OSHA those things. But the one thing I won't do is I won't say employee misconduct, because if you want to make your inspection go Corley on day one, the first thing you do is point the finger at the employee. So let's not do that. The first thing we do is we say, Look, dear OSHA compliance officer, We have done everything we could do, See our program, see our training, see our auditing process and whereby we make sure folks follow the rules. And look at these write ups where we make we make sure and and follow up on it that we hold our employees accountable. We don't know why this happened, but we did everything we could, and the co show will get to those words. The co show will say. So what you're saying is you did everything you could and the employee you're asserting the employment conduct offense. My response is always No, I'm just saying there's nothing else we could have done. Now if we litigate this, yes, we'll call it that because that's what it's called. But we really did everything we could do to make sure this person did not lose his or her life. Well, that's a good way of putting it. I know you're women. At the time, I was going to try to squeeze in a novel question regarding Covid 19, and I'm respecting your phone to be going off the hood now that that that ruling came out yesterday, now a truly from the advisory committee, if those you haven't seen it, this is March 3rd, 2021 today of recording just It's two things that go with this first, uh, President Biden's executive orders that says, Oh, she needs to start reviewing everything they've done with covid 19. And if they determine that an emergency, uh, emergency standard temporary standard is necessary, they got to do it by March 15th. And then we have this ruling that came back that says, Oh, she needs a temporary standard. And most of this stuff is being regulated through respiratory protection through OSHA 300 well, record keeping rules. And then also five a one, which is, uh, you know, better rule. That's what I call it, you know better. So I'm expecting somewhere along the line that Philip, you're gonna end up getting a whole bunch of calls related to enforcement efforts with this one. What we are and look what you're describing. You're talking about the Inspector General report yesterday, and I think you're looking at this exactly the right way. When you look at, uh, Joe Biden, one of his first executive orders was on covid 19. And it was that order that said OSHA I want you to consider and by consider I mean, I want you to do There was no consider to this, although it was worded that way, I want you to have an emergency temporary standard in place by March 15th. So we expect that's going to happen. Or even more convinced it's going to happen after the inspector general report yesterday that was critical of OSHA for its response or according to the I G lack of response to the pandemic, those two things together absolutely guaranteed. By March 15, we will get an emergency temporary standard, the key being the T. It's temporary. It only lasts six months, so but it can be renewed. Now we'll see how this is going to happen. But 2021 is going to be very interesting because at the same time that is going on, we also have, uh, three vaccines are available. Three different vaccines. We have more and more states, uh, and local air local governments opening to business. Uh, and numbers seem to be going down. So is the ocean going to be able to maintain an emergency and temporary standard? Or is this Here's my my keep. An eye out on this point is Congress. Is it going to get kicked back over to the legislative branch for them to do something? Um, And now you get into discussions of the filibuster, etcetera, etcetera. Um, but any event? No, we are about to get really busy. And what I tell folks is, Look at in order to what do you expect to come from it? You can absolutely look at Ocean's most recent guidance with their 16 things you're supposed to have. And, uh, we're supposed to do. You can look to Virginia, California, Oregon, Michigan. You can look at those states and see what was done. But I would also say look at those states from the perspective of what were their numbers? Did it make a difference? Stricter OSHA activity. I don't think demonstrably made a difference in those states. I think it is misleading to look at that attorney that inspector general report and conclude whether OSHA was effective or ineffective, based strictly on just the number of inspections. I think that's misleading. Yeah. And, um and I I do share that as well, because truly I see a lot of, um a lot of my students there throughout the whole the whole country and some international. But throughout the the U. S. They have many different workplaces. So if you're looking at everything through the eyes of meat packing facilities or through the eyes of assembly fields, or even warehousing with a whole bunch of moving parts and you have a pack warehouse with no way of doing social distancing or assembly lines, alright, then it's a high likelihood that if you see a cluster of workers that are now exhibiting symptoms, chances are yes, you could prove this is being an outbreak point. But however, it's still a possibility that it could been somewhere else. So now you've got to really figure out without true contact tracing, then this is going to be so hard to not only prove and to enforce, but then if you're regulating it, even oceans guidance. The only thing they said about mandatory mass going was was that the customer should wear their best. And I thought that was really weird, that that's the only wording instead of the employer. But that's the way they were did it. So, uh, I'm really I've got my eyes wide open on this one, too. Well, what's interesting to me, too, when you look at that and just see, you know, this really gets a matter of what you think. Government's role is in society and in business, and the view from the Inspector General Report is very much the their view that government should do more, uh, than what it did. But it's interesting when you read the details of that report, because one of the criticisms is that OSHA didn't do enough on site inspections. Well, wait a minute. If you really think the threat was that big, why do you want OSHA to send its officers in the field more so It's a little bit disingenuous. I think, in that regard, I laughed at that part. I'm like, Okay, so you don't think you think they did not enough on site inspections in the middle of a pandemic? You think that was worse, you know, than the government's response to it was before. How do you resolve that? Nobody's. Nobody's going to answer that question. And not yet, not yet. How do people reach out to you and, uh, and again give us your your specialties and then your phone number and and emails and linked in and all all the places they can reach you? Well, thank you, Shell, and I appreciate And I thoroughly enjoyed this time today. And as you can tell, I do love what they do. And I think it's I think it's a lot of fun to go out there and really make a difference in the in the in, in people's business in people's lives. So I am on LinkedIn, and I've actually got a commitment this year. So far, so good to post every day something about OSHA law. And so I have been doing that. I'm easy to find it. Philip B. Russell on Lincoln. Just Google me. You'll find me and fairly easy to find I don't hide. Uh, I'm at ogletree dot com as well. My email is Philip with two l t h i l l i p dot russell r U S s E l l at ogletree dot com o g l e T r e dot com and go to our firm I mean, go to the Web page at ogletree dot com. Sign up for our newsletters and announcements there. Follow me on lengthen. Send me an email. And as I said, I'm not. I'm not hard to find. I don't hide Well, there's also a Phillipe Russell. That's, I think, a NASA engineer. There's also well, not only that. I also have noticed that, through my Google Alerts is apparently a really good high school now college basketball player somewhere in the Midwest whose name is Philip Russell. But I'll tell you real funny. But odd story is when I was a 15 year old teenager working in a fast food restaurant growing up outside of Atlanta, there actually was a murder of a solar Brussel working in a fast food restaurant on the other side of Atlanta. And so for a few days, some prints thought I had been murdered at work. Wow. Strange, Strange. Strange that it was the same name. Same spelling. Wow. I think I'm good. There's no Sheldon private. Well, I'll tell you what, my friend. I will tell you there is no Children. Promise? I love what you do. I know you're an advocate, and you're passionate advocate for safety of workers. And how you do it is just really magical. And I love following what you do and what Kevin does. And so I appreciate you guys. It was an honor to be with you today. Thank you so much. I appreciate your time and especially in such short notice. So thank you. Enjoy the rest of your day you to take care of the safe. Mhm. This episode has been powered by safety FM.