The Seaman’s Protection Act, 46 U.S.C. 2114

Enacted by Congress in 1984, it was “intended to facilitate Coast Guard enforcement of maritime regulations . . . by guaranteeing that, when seamen provide information of dangerous situations to the Coast Guard, they will be free from the “debilitating threat of employment reprisals for publicly asserting company violations” of maritime statutes or regulations”

As originally written, the Act prohibited a vessel owner from discharging or in any manner discriminating against a seaman because the seaman in good faith has reported or is about to report to the U.S. Coast Guard a statutory violation.  The Act provided that a seaman who believed he was the subject of such discrimination could bring an action in federal court and seek appropriate relief including restraining actions that Act prohibits, reinstatement of the seaman’s employment and pay, and costs and attorney’s fees.

In 2010 the Act was amended to broaden its protections.  Not only is the seaman who reports violations to the U.S. Coast Guard protected, but so are seamen who have refused to perform duties because of reasonable apprehension that performing such duties would result in personal injury, testified in any proceeding brought to enforce a maritime safety law, notified or attempted to notify the vessel owner or Secretary of Transportation or a work related illness or injury, cooperated with or furnished the National Transportation Safety Board with information or accurately reported hours of duty.

The 2010 amendments, however, require that the seaman, instead of proceeding with a lawsuit in federal court, must now pursue his remedy through the Occupational Safety and Health Administration regulations and process.  49 U.S.C. 31105.  The complainant has several thresholds he must meet to succeed.  The person making the claim must first establish that he is a seaman as defined by the courts in the context of the Jones Act.  Next, he has to show that his report of an unsafe condition or statutory violation was made in good faith.  He only needs to show he reasonably believed that violation occurred, and does not have to prove that a law was broken.  Last, he has to show causation, i.e., his termination or retribution by his employer was the consequence of his report.

Pursuant to the OSHA procedures, the complainant may file his complaint with the Secretary of Labor.  The Secretary will notify the employer and after due process, a hearing held.  If the Secretary finds that the employer was in violation of the SPA it can order the employer to stop the action, reinstate the seaman with pay and privileges previously enjoyed, order payment of compensatory damages, special damages sustained as a result of the discrimination, require the employer to pay litigation costs, attorney fees, and award the seaman punitive damages not to exceed $250,000.

Vessel owners take note.  In years past seaman, fearing retaliation and loss of job security, may have kept quiet.  However, in the wake of the Deepwater Horizon explosion where investigators alleged that concerns voiced by the men on the drill floor that corners were being cut to save time and money at the expense of safety, public consciousness has been revived and we can expect enforcement actions to increase in frequency.

Compliance and Safety asks “Is OSHA A Wasteful Regulatory Nightmare OR Common Sense that Saves Lives?”

Here is an interesting infographic from the good folks at Compliance and Safety.  The graph asks, “Is OSHA A Wasteful Regulatory Nightmare OR Common Sense That Saves Lives?

OSHA Infographic

 

OSHA Inspections

Under the Occupational Safety and Health Act of 1970 the Occupational Safety and Health Administration (OSHA) is authorized to conduct workplace inspections and investigations to determine whether employers are complying with standards issued by the agency for safe and healthful workplaces.  OSHA also enforces Section 5(a)(1) of the act, known as the “General Duty Clause,” which requires that every working man and woman must  be provided with a safe and healthful workplace.

In 2009, the U.S. Labor Secretary announced that OSHA would “be back in the enforcement business.”  Congress made this a reality by increasing OSHA’s budget by some $50 million in 2010 and the addition of almost 200 OSHA inspectors to support the new, aggressive enforcement policy.

OSHA inspections are almost always conducted without advance notice.  There are circumstances under which OSHA may give written notice to the employer.  The advance notice is normally less than twenty-four hours.  This announced inspection may occur when there exists an imminent danger that requires immediate attention, accident investigations, where notice is required to ensure that the employer representative will be present, and situations where the OSHA Area Director determines that advance notice would produce a more thorough and effective inspection.  If an employer refuses to cooperate, the OSHA compliance officer may obtain a court issued warrant allowing the inspection.

OSHA  has inspection priorities.  Imminent danger situations receive top priority.  An imminent danger is any condition where there is a reasonable certainty that a danger exists that can be expected to cause death or serious physical harm.  Second priority goes to investigation of catastrophes and fatalities and accidents resulting in the death or hospitalization of three or more employees.  Such events must be reported to OSHA within eight hours.  Third priority goes to formal employee complaints of unsafe or unhealthful working conditions or referrals from any source about a workplace hazard.  OSHA is supposed to maintain confidentiality of the source if requested.  Next are programmed inspections aimed at specific high-hazard industries that meet certain criteria.  This criteria may be injury rates, death rates, exposure to toxic substances or a high amount of lost work days.

OSHA also has in place a relatively new program, the Severe Violator Enforcement Program, which took effect in October, 2011.  It is intended to focus reinforcement resources on employers that have shown indifference to meeting their OSHA obligations.   The SVEP encourages OSHA compliance by providing for more aggressive enforcement and larger penalties for employers who are charged with certain repeated or willful violations, or who fail to abate violations.

The unannounced inspection can occur at any time and the best way to avoid OSHA penalties is to be ready for an inspection.  Every employer should designate a representative to meet with and accompany the inspector.  Your representative should have a thorough knowledge of where everything is and what the applicable safety regulations are.  The representative should check for proper credentials and accompany the inspector at all times.  Your representative should be informed of the employer’s rights and responsibilities during the inspection.  OSHA has published a booklet that is normally given to the representative.  It can be viewed online at http://www.osha.gov/Publications/osha.3000.pdf.

The inspection should start with an opening conference.  The purpose of the visit should be explained, i.e., if it is a complaint, accident or programmed inspection.  If a complaint was made, a copy should be produced.  Any trade secrets should be identified and confidentiality assured by the inspector.  Cooperate, answer honestly, but don’t volunteer information not requested.  Produce only those records specifically requested and which are relevant.  If a violation is pointed out, don’t agree, just note it.  Agree to fix an obvious problem if it is doable.  If the problem was corrected, ask the inspector to note before he leaves the premises that it was abated.  The inspector may interview employees as long as it does not interfere with their job.  If the inspector takes photos or measurements, so should your representative.  The representative, while being cordial and cooperative, should not engage in idle talk.  Statements or admissions can be used against you.

At the end of the inspection your representative should go over his notes and keep them in a secure location.  The date, time scope of the inspection and who participated should be noted.  There should be a closing meeting where the inspector will advise of any unsafe conditions and advise of any possible citing.  The inspector does not issue citations.  That is the job of the Area Director who will notify you in writing by certified mail.

You are given fifteen days to either pay the penalty or contest the citation.  There is a ranking of citations, 1) other than serious; 2) serious violation; 3) willful violation; and, 4) repeat violation.  The penalties can be substantial.

The process may go more smoothly if you ensure that you have updated safety plans and adequate training documentation, and have maintained current records of safety meetings.