Client Services / OSHA

OSHA

McDermott Will & Emery’s Occupational Safety and Health (OSHA) & Mine Safety and Health (MSHA) Practice is an important part of the firm’s Labor, Employment and OSHA Group.  The OSHA /MSHA Practice is generally recognized as one of the leading occupational safety and health practices in the United States. 

CAREER-LONG FOCUS ~ The three senior partners in the OSHA/MSHA Practice Group – Bob Gombar, Jim Lastowka, and Art Sapper – have devoted their entire careers (almost 90 years combined) to the practice of safety and health law.  In the early days of the OSHA and MSHA programs, when these partners were in the federal government, they handled the major cases.  They drafted the key decisions that shaped the law.  Other firms may be familiar with the same case law as those in our Practice Group, but they do not know the story behind the decisions or why certain words were chosen to express an idea or a position.  Our Group knows the "why" behind key decisions, and that knowledge can prove crucial to a successful outcome.  Moreover, our lawyers maintain their contacts with the government, so that they are able to get the inside story even today.

EXPERIENCE ~ There is no firm in the country that can match our Group's experience.  Our Group pioneered petrochemical process safety cases, from the very first large-scale chemical plant inspection by OSHA in 1985 to the most significant chemical and petrochemical cases of today.  The MW&E OSHA Practice Group handled the early ergonomic cases in the meatpacking industry that are the basis for OSHA's ergonomic guidelines.  Our lawyers handled major OSHA recordkeeping cases in the 1980's that led to the regulation changes of today.  Group lawyers were heavily involved in the construction cases that established the multi-employer liability rules as well as the limits of liability for engineers and architects.  And our Group's work in the automotive industry set today's interpretation of OSHA's lockout/tagout standard as it is applied to assembly lines.

INNOVATION ~ Over the years, the MW&E OSHA/MSHA Practice Group has developed new ways to resolve cases faster, more efficiently, and with less liability for companies.  For example, in the early years, OSHA citations labeled as "willful" were a stumbling block to settlements and to a company's enforcement record.  Our Group pioneered the approach of amending the citations from "willful" to "unclassified" that has become a common tool today for proactively resolving difficult issues while avoiding unnecessary complication presented by harmful labels.

Our practice was the first to use the concept of early intervention – that is, involvement of counsel during the OSHA inspection itself when the government collects its evidence and formulates the violations to be alleged rather than waiting until after OSHA has issued its citations. Early intervention has enabled our Group to handle OSHA and MSHA cases faster, better, and more efficiently than other practices.  In addition, our approach to managing catastrophe cases was largely adopted by OSHA in its field instruction for handling fatality and catastrophe inspections.

In the late 1980's, when OSHA was focusing attention on the paper industry, our Group did the first "pre-citation settlements" for major paper companies.  A pre-citation settlement ends the case when the OSHA inspection is over (the earliest possible time) with less negative publicity and an overall lower level of potential liability.

HANDS ON LAWYERS – HANDS ON KNOWLEDGE ~ The lawyers in our Group are as comfortable on the plant floor, on a construction project, or in a mine as they are in the courtroom or the boardroom.  Our lawyers do not just know OSHA's process safety management standard, they know chemical processes.  They understand the practical side of running a manufacturing facility and dealing on a day-to-day basis with a union.  Our lawyers know the problems of shift work and the critical relationship between hourly workers and front line supervision.  They speak the language of the engineers and scientists as well as that of the board operator in a plant or the crane operator on a construction site.

The lawyers in our Group have been down in mines and have crawled through sewer systems and tunnels.  They know construction techniques as well as petrochemical production equipment and instrumentation.  And they have even been on Launch Pad 39-B dealing with issues involving the launch of the Space Shuttle.  Over the last 18 years, our Group has handled dozens of explosion/catastrophe cases as well as multi-agency investigations.

In short, those in the MW&E OSHA/MSHA Practice Group are very hands on lawyers who not only know the law, but who also understand the practical realities that underlie important safety and health issues.

Our lawyers regularly represent clients in proceedings before the Occupational Safety and Health Review Commission, the Federal Mine Safety and Health Review Commission, federal appellate courts, Labor Department panels and officials, the National Institute for Occupational Safety and Health (NIOSH), the U.S. Chemical Safety Board and Hazard Investigation as well as various state administrative bodies and courts.  Major components of their practice include:

INSPECTIONS ~ Counseling clients during major governmental inspections and investigations, including continuous on-site inspection management during major OSHA, MSHA, NIOSH, CSB and state agency investigations following catastrophic incidents.

CATASTROPHE PLANNING ~ Working with clients to develop comprehensive corporate and plant-level contingency plans for dealing with catastrophic accidents.

ENFORCEMENT ACTIONS ~ Defending employers against OSHA and MSHA civil and criminal enforcement actions.  The lawyers have broad experience in handling all types of OSHA and MSHA litigation, including cases involving allegations of willful and repeated violations and proposed multi-million dollar civil penalties.  They have successfully litigated precedent-setting, complex cases involving issues such as chemical process safety
and ergonomics.

RULEMAKING ~ Representing employers and industry associations in a broad range of rulemaking proceedings on critical OSHA and MSHA standards, including the recent proceedings involving OSHA's ergonomics standard.

STANDARDS INTERPRETATIONS & VARIANCES ~ Obtaining favorable interpretations of or variances from standards.

COUNSELING ~ Counseling clients on occupational safety and health issues, including hazard communication, indoor air quality, ergonomics, recordkeeping, emergency response, lock-out/tag-out, and chemical process safety.

COMPLIANCE REVIEWS ~ Conducting OSHA and MSHA compliance reviews, often together with engineering and other experts, to determine a client’s compliance status, to aid the client in reducing future compliance costs and to minimize liability by developing a plan to address any findings.

DUE DILIGENCE REVIEWS ~ Conducting OSHA and MSHA due diligence reviews during mergers and acquisitions to assess the target company's compliance status as well as potential significant liabilities arising out of workplace accidents, injuries, illnesses and exposures to toxic substances.

PROPOSITION 65 ~ Counseling clients regarding the understanding of and compliance with California's Hazard Communication Standard.

Contacts

OSHA Client Services

McDermott Will & Emery

McDermott Will and Emery