Tracey Diamond, Emily Schifter, and Greg Narsh explore critical lessons in workplace safety through the lens of the legendary film Apollo 13.
In this episode of Hiring to Firing, hosts Tracey Diamond and Emily Schifter explore critical lessons in workplace safety through the lens of the legendary film Apollo 13. Joined by Greg Narsh, Troutman Pepper Locke counsel from the firm's Environmental & Natural Resources group, they share insights into whistleblower protections and emerging safety trends. Discover how OSHA regulations can guide employers in maintaining a safe work environment and learn about the importance of training and preparedness in preventing workplace accidents. Tune in for an engaging discussion that combines cinematic drama with practical safety strategies for employers and employees alike – "Houston, we have a problem!"
Hiring to Firing Podcast — From “Houston, We Have a Problem” to Workplace Safety: Lessons from Apollo 13
Hosts: Tracey Diamond and Emily Schifter
Guest: Greg Narsh
Aired: October 21, 2025
Tracey Diamond (00:00):
Emily for our next episode of Hiring to Firing. We're talking with our colleague Greg Narsh, about workplace safety, and we are using clips from one of my favorite movies, Apollo 13. Have you ever wanted to fly to the moon?
Emily Schifter (00:13):
Always dreamed about going to space and seeing the moon up close and in person, but looking forward to a great episode. So tune in to hear all of Greg Narsh's expertise on workplace safety.
Tracey Diamond (00:31):
Welcome to Hiring to Firing the podcast. I'm Tracey Diamond, a labor and employment partner with Troutman Pepper Locke and I'm here with my partner and co-host Emily Schifter. Together we tackle all employment issues from hiring to firing.
Emily Schifter (00:45):
Today we're thrilled to welcome as our guest, our colleague, Greg Narsh, counsel with our firm, Greg has more than 40 years of combined industry and legal experience with environmental and safety issues and supports clients across a wide range of industries in handling complex regulatory compliance and administrative matters, permitting, as well as litigation involving federal agencies. Formerly a chemical engineer, Greg spent 12 years in the chemical industry with Monsanto Company where he was a process engineer and production supervisor responsible for safety and environmental compliance. Welcome, Greg. Why don't you tell us a little bit about yourself and your practice?
Greg Narsh (01:21):
Well, thanks for that introduction, Emily, and it's great to be here with both of you. As you mentioned, I actually began my career as an engineer, but after handling both OSHA and environmental responsibilities at a large chemical manufacturing facility, I got really interested in studying law and went to law school in the evening while continuing to work. I've been practicing OSHA and environmental law for about 33 years now, and my OSHA practice covers really everything from routine inspections and citations to whistleblower cases to workplace fatalities. And really, I've handled far too many fatalities, which in my experience are almost always preventable, which I think is a great segue to this podcast because I really think things like this help employers understand hazards and how to avoid them.
Tracey Diamond (02:19):
Well, Greg, we're thrilled to have you here. Greg and I have worked closely on several matters in the past years, and Greg is our go-to resource for all things OSHA. And as you said, Greg, today we're focusing on occupational health and safety, and we thought you would be the perfect guest to help us dive in. So kick us off, can you give us a brief overview of the types of regulations, agencies, and requirements that employers need to be aware of in this space?
Greg Narsh (02:45):
Well, there are various agencies that regulate safety in one way or another, but primarily it's OSHA, which was created in 1970. And really the mission of OSHA is fairly simple. It's just to protect workers, ensure that they're in a safe and healthy working environment, and they do so by establishing many standards, regulations and so forth. But one of the things that's important to note is that OSHA applies between employers and its employees, not to employees of others or to the general public. Now, that said, there's one other important distinction. OSHA has what it's calls, its multi-employer citation policy that allows it under certain circumstances and typically at construction sites to issue citations to multiple parties for the same violation. And that may be the site owner or general contractor, subcontractor, etc. And to do that, OSHA has created four types of what they call fictional employers for enforcement purposes. (03:59) And depending on your role in any particular incident, several parties could get cited for the same thing. But ultimately, OSHA enforces its standards by inspecting workplaces, issuing citations, levying penalties, etc. They do have the authority to shut down a workplace, but that is very rarely exercised, only under limited circumstances. And OSHA does actually offer some free services, training, guidance, etc. But sometimes there's a strategic decision to be made on that because you can also hire a private consultant. If you use OSHA's consultant, you pretty much have to do everything they tell you otherwise. It may result in citations.
Tracey Diamond (04:49):
It sounds like you'd be feeding them information about all of the warts going on in your plant, right?
Greg Narsh (04:54):
That is possible and one other very important thing to keep in mind is about half the states have their own OSHA agencies. In environmental law, you're subject to both state and federal. In OSHA, it's generally one or the other. So it's something very important to check in your state, whether you're subject to federal or state OSHA. State OSHA's cannot be inconsistent with federal, but they can be more strict. So that's important to keep in mind.
Emily Schifter (05:26):
So we'll also note kind of relatedly, but beyond the scope of what we're talking about today, employers should be aware, and probably most of our listeners are familiar, that there are other areas of the law that might bear on the space, like workers' compensation insurance that provides benefits to employees if they're injured on the job, which is required by law in most states. Some states also have state mandated temporary disability programs like the one in New York, and in some cases, where not precluded by a workers' compensation ban, at least, a workplace safety incident or an injury can give rise to other forms of risk like a personal injury or emotional distress type of a lawsuit. But we digress. That's beyond our topic today. So back to OSHA. Greg, at a high level, what are employers' responsibilities and employees' rights under the Occupational Safety and Health Act?
Greg Narsh (06:15):
Health? Well, that's an important thing because both employers and employees have a role in safety and for the employer, it really goes beyond just hard hats and safety glasses. It's something that all employers need to be thinking about. If you have employees, you’re subject to OSHA and frankly not protecting your workers really makes no sense. I mean, injury or death of a fellow employee is just devastating. It hurts morale, etc. but there are also many costs associated with that. You've got to train replacement employees. There may be penalties, legal costs, and importantly, there may be damage to the company's reputation after receiving citations. For the most part, OSHA governs by very specific standards, which include a number of things, training, assessing the workplace for hazards. Each employer has to do that. There are record keeping and reporting obligations. But one other important thing to mention is what they call the general duty clause.
They primarily regulate by specific standards, but if something is wrong and there's no specific standard, OSHA will sometimes use the general duty clause, which simply says, every employer must provide a safe workplace free from recognized hazards. And that's a little bit subject to what OSHA wants to mean. Employees certainly have a role in their own safety, but they also have a number of rights primarily to be in a safe workplace, but also to be given the proper tools to do their job protective equipment, whether that's hard hats, hearing protection, etc., to be trained and have the ability to report unsafe conditions without fear of reprisal and if there is, they do have certain whistleblower protections.
Emily Schifter (08:14):
That's super helpful. I think it's such a good point you raised that if you have employees, you're likely covered by OSHA. I think sometimes that can catch employers by surprise if they're not in an industry where you might more typically think about it, kind of the hard hats and safety glasses like you mentioned. So to help illustrate some key workplace health and safety requirements, we thought that we would pull from the 1995 classic movie Apollo 13 starring Tom Hanks. The movie dramatizes the real life 1970 Apollo 13 lunar mission, which was the seventh crewed mission to the moon and intended to be the third to land. After the mission began an onboard explosion deprived the spacecraft of much of its oxygen supply and electrical power, which forced NASA's flight controllers to abandon the moon landing that was the goal of the mission, and instead, improvise various solutions to try to get the three astronauts aboard - Jim Lovell, Tom Hanks character, Jack Swigert, played by Kevin Bacon, and Fred Haise played by Bill Paxton - safely back to Earth. So let's take a listen to our first clip where Jim reports the explosion.
[BEGIN CLIP] (09:23)
Jack Swigert:
Hey, we've got a problem here.
Jim Lovell:
What did you do?
Jack Swigert:
Nothing. I stirred the tanks.
Mission Control:
Whoa. Hey! This is Houston. Say again, please.
Jim Lovell:
Houston, we have a problem. We have a Main Bus B Undervolt. We've got a lot of thruster activity here. Houston, it just went offline. There's another master alarm, Houston.
Jack Swigert:
I'm checking a quad.
Fred Haise:
There was no repress valve.
Jack Swigert:
Maybe it's in quad C.
Jim Lovell:
We've got a computer restart.
Jack Swigert:
I'm going to reconfigure the RCS.
Jim Lovell:
We've got a fire - doesn't make any sense. We've got multiple caution and warnings, Houston. We've gotta reset for restart.
Jack Swigert:
All right, I'm going to SCS.
Doctor:
Flight, their heart rates are skyrocketing.
Gene Krantz:
EECOM, what's your data telling you?
EECOM:
Oh, two tank two, not reading at all. Tank one is at 725 PSI and falling. Fuel cells one and three are, oh boy, what's going on here? Flight. Lemme get back to you.
[END CLIP]
Tracey Diamond (10:22):
So that is probably one of the most iconic lines in the history of moviedom. And this is, I know I've said this many times before, but this is one of my truly favorite movies of all time. I swear. It is. I also want to mention that I just finished the audio version of the book Atmosphere that just came out recently by Taylor Jenkins Reed and has a similar situation where there's an onboard explosion that this one is fiction on a space shuttle, it’s set in the 1980s and has similar types of suspense and gives us good fodder for a discussion about the more earthly workplace safety issues that we're going to talk about today. So turning back to you, Greg, for employers faced with an accident, injury or illness, what is required?
Greg Narsh (11:07):
Well, I think the first thing to think about beyond the immediate wellbeing of the injured employee is to ensure that other employees are also safe, and then try to determine why the accident happened, how to prevent it from happening again. And one of the ways to do this is to affirmatively do some sort of hazard analysis. And these should take place not just after an accident, but before as well, so that you can anticipate and be ready. And one of the important things to keep in mind is that while accidents may or may not have to be reported to OSHA, there is actually an important distinction under OSHA between something that is reportable and something that is recordable. Any injury that requires treatment beyond first aid. And first aid means what you think it means, band-aids, etc, must be recorded on the OSHA 300 logs. But there are actually only four things that have to be fairly immediately reported to OSHA. Those include a fatality, any inpatient hospitalization, any amputation and loss of an eye. I'm not entirely sure how they chose their list, but fatality has to be reported within eight hours, and the quicker the better. The other three, you have 24 hours to make that report.
Emily Schifter (12:41):
I think that's sometimes an overlooked requirement. I know often when I'm doing due diligence for acquisitions, we will see that a company hasn't kept their logs or hasn't kept them up to date or hasn't put everything that they needed to.
Greg Narsh (12:52):
And Emily, I'd add one thing to that, that if there's a fatality, you're required to notify both OSHA and the local police. The police's job is to ensure that there was not a homicide. And they generally do that within 15 or 20 minutes and leave, but that is a necessary part.
Emily Schifter (13:12):
Right. That's a good point. So for those of our listeners that aren't familiar, can you explain what OSHA's typical process looks like when it's enforcing a standard or responding to a report? One of those things that you just mentioned?
Greg Narsh (13:25):
Well, there are a number of things that will trigger an inspection, and that's really how OSHA becomes aware of violations or potential violations. One obviously is death or a serious injury. They will come out and inspect. Others include catastrophes, for example. Maybe there's a fire, explosion, etc. Property damage alone is not reportable necessarily, but OSHA will generally learn of it. Complaints they will always respond to a complaint, may or may not trigger an inspection, but there will always be some form of response. Sometimes there are what they call just routine inspections, your number came up, but those are relatively rare because OSHA has limited resources. And then sometimes OSHA will establish what it calls national emphasis programs that cause them to focus on a particular industry that may increase your chances of being inspected. Now when they show up, and really you should have a plan in place ahead of time to be very ready for that knock on the door, who do you notify in what order, etc.
You can demand a search warrant, but I generally don't recommend that because they'll get one and come back in a worse mood, frankly. And really after a fatality or a catastrophe, they do have the right to enter, but quickly running through what the typical process is, there'll be an opening meeting. They'll tell you why they're there. They will request certain documents like OSHA logs, training, etc. And I generally recommend not because of an incident, but always just have those things ready because they will ask. And it's better if you don't have to go looking for them, then they'll want to take a site tour. You can limit it if possible, if they're there to see a particular thing. Don't give them the grand tour, but they generally do have rights to see whatever they want to see. And I generally recommend if they take photos or samples, you should do a side by side just so that you have what they have. Another important factor is they have the right to do employee interviews and they will exercise that right. And management cannot participate in those interviews. They want to get a picture of how the hourly employees view the company's attitude towards safety. So generally, I recommend cooperate, don't volunteer. A lot of things cooperate, and then at the end, they'll generally have a closing meeting where they'll give you an idea of what they're thinking.
Tracey Diamond (16:06):
When you say that management cannot participate, does that mean management can't be in the room and observe or that they could be in the room, but they just aren't allowed to say anything?
Greg Narsh (16:16):
Can't even be in the room. Because what OSHA's concerned about for an hourly employee is if his supervisor is in the room staring at 'em, they may not feel like they can give candid answers.
Tracey Diamond (16:29):
And that's very similar to the way the EEOC conducts a site visit if they come calling. And I think this is really helpful information, Greg, because oftentimes employers will call because OSHA has knocked on the door and they really don't know what to do. So having this plan in place and understanding what they can and can't do, I think is super important upfront so that they have a plan in place. So what happens if OSHA does find a violation? What's the next step?
Greg Narsh (16:55):
Yeah, that's a good question because they often will, OSHA actually has six months to decide on whether to take enforcement action and what that action will be. They don't always take that full amount of time unless it's a fatality or something like that. But they often will issue what they call a citation and notification of penalty, and that will just show up in the mail or email. And this is very important. An employer has 15 working days to decide what, if anything, to do. And there generally are no extensions to that time period.
Tracey Diamond (17:33):
So they get six months and you get 15 days, huh?
Greg Narsh (17:36):
Exactly, exactly. And if you do nothing, then everything becomes final as written and you just write a check. They will offer what they call an informal conference. And I always recommend having that because it really is informal. It's just a chance to discuss the citations, explain to OSHA maybe what you saw wasn't typical of how we normally do things. And they usually come to that meeting prepared to compromise and settle in some way. And I like to always recommend a settlement agreement even if the amount of the penalty is low, because you can insert non admission clauses, etc, that say, we're not admitting the violations, but for the sake of improving safety in our workplace, we're willing to do A, B, and C. If that does not work, and the ink must be dry on that settlement agreement within those 15 working days, you file what's called a notice of contest. Now often that will just simply give you more time to negotiate. Technically, you're now on track for litigation. It rarely gets there. I have tried two cases in my 33 years as a lawyer, so it normally will settle. They don't want to litigate any more than you do, but it is an option. And even appeal from the trial is available to the Occupational Safety and Health's Review Commission, which is a panel in Washington D.C.. One of my two trials actually was appealed there, so it does happen.
Emily Schifter (19:18):
Shifting gears back to the movie, another famous scene, the NASA engineers back on earth realized that since they didn't plan for what to do in the event of an explosion like the one that happened during their mission, the only way to help the astronauts is to figure out a fix using only what they have on board with the head flight engineer famously noting that failure is not an option. Let's listen in.
[BEGIN CLIP] (19:40)
NASA Engineers:
Jean, we have a situation brewing with the carbon dioxide. We had a CO2 filter problem on the lunar module, five filters on the LEM, which were meant for two guys for a day and a half. So I told the doc—
Doctor:
They're already up to eight on the gauges, anything over 15, and you get impaired judgment, blackouts, the beginnings of brain asphyxia.
Gene Kranz:
What about the scrubbers on the command module?
NASA Engineers:
They take square cartridges. And the ones on the limb are round.
Gene Kranz:
Tell me, this isn't a government operation.
NASA Engineers:
This just isn't a contingency we've remotely looked at.
Doctor:
Those CO2 levels are going to be getting toxic.
Gene Kranz:
Well, I suggest you gentlemen invent a way to put a square peg in a round hole. Rapidly.
[END CLIP]
Emily Schifter (20:17):
So in real workplaces, employees will sometimes MacGyver fixes to get a job done, which may or may not ultimately be safe. What does OSHA say about that kind of practice? And does the context like an emergency like we have here matter?
Greg Narsh (20:31):
Well, it does matter and it matters to OSHA. You don't want to implement improvised fixes. And the years I spent in the chemical industry, I was a production supervisor for a time, and believe me, I saw many improvised fixes which don't last and will typically create more of a hazard aside from the fact that they're not in compliance. So really I think the key is training, making sure that employees know what to do and how to do it, who to notify if they have questions or if it's beyond their ability to handle. And part of that is having procedures in place, procedures on how to operate your equipment, what to do if it goes wrong, training, etc. And one of the problems is those procedures often get written and then get put on a shelf and collect dust. It's important to train and retrain on those procedures and have emergency plans, evacuation plans, etc in place and practice them before the incident occurs.
Tracey Diamond (21:41):
So moving on, while the engineers are working on the various fixes in our movie, the astronauts face some pretty harsh conditions onboard the spacecraft. They lose power and access to clean drinking water. They struggle with too much CO2 and at times are really cold without electricity to warm them up. OSHA has various standards for safe work environments in the real world. What are some examples of conditions that employers often overlook?
Greg Narsh (22:07):
Well, and there are often many, many very or more specific standards than you might think. Some are obvious, which are standards like machine guarding, lockout, locking out a machine before you work on it, safety equipment, etc. And OSHA does regulate things that you may not consider such as the amount of lighting walkways that have to be clear of any obstructions, exits that may be blocked, confined space entry. This is a really important issue because if you're going to send someone inside of a tank to clean it, for example, there are a number of things that have to be done - testing the oxygen level inside the tank, making sure there are no hazardous chemicals in the environment, etc. They regulate noise exposure. But somewhat surprisingly, there are areas that OSHA really does not specifically regulate, although they could via the general duty clause. But one is the home office environment and post COVID, that's a much bigger issue.
OSHA has basically punted on that because it's very difficult to regulate inside someone's home. If there were a complaint, they may respond, but other things that they don't specifically regulate are fatigue. Mental health, which has become a big issue of late. But even heat stress ergonomics, workplace violence ergonomics is very difficult. OSHA has talked many times about regulating it, but how does someone, five foot one and someone who's six foot five, how do you implement comparable ergonomics on the same machine without costing the employer millions of dollars? So it's been a difficult issue. And interestingly, neither OSHA nor EPA regulate mold. I mentioned that because it comes up often maybe under the general duty clause, but there's no specific regulation.
Tracey Diamond (24:12):
And that's an important point, right? Because even if they don't specifically regulate some of this, the general duty clause could be used by OSHA to kind of get around that lack of specific regulation.
Greg Narsh (24:23):
Indeed.
Tracey Diamond (24:24):
Greg, OSHA has been around since the 1970s and the world has certainly changed a lot since then. What are some other emerging areas of focus for the agency?
Greg Narsh (24:33):
Well, in terms of some of the trends, and I've been doing this for a long time, some of the things I think very important to keep in mind is that OSHA penalties used to be very low, often three figures, sometimes four, and they would not change for years, maybe decades. And what happened is OSHA realized that some companies treated that as a cost of doing business. In other words, if you had to pay a $750 penalty, so be it, move on and get back to production. So what OSHA started doing several years back is significantly increasing the penalties. Currently for sort of a standard citation, it's about $16,000 per citation and for what are called willful or repeat citations, they multiply that by 10. So it's $165,000 per citation. So you can see if you get three or four or five of those, you're talking about real money.
But moreover, there is an annual increase every year based on some economic percentage. They don't go up tremendously, but they do go up every year. I've also seen in recent years, more citations being issued, more penalties being assessed. I've seen a tendency to issue more willful and repeat citations and a somewhat reduced appetite for compromise. They'll still settle, but not in the way that I experienced maybe 20, 25 years ago. They'll insist on higher level of enforcement. The other thing I'm seeing in recent years is more whistleblower cases. They're very easy to initiate and OSHA takes them very, very seriously. And another thing that's very important for employers to keep in mind, and I've seen more interagency cooperation, in other words, EPA might come in and if they see something that they think is very unsafe, they may contact OSHA. And OSHA likewise may contact EPA. So there are even formal interagency agreements with respect to this. So keep that in mind as you inspect your own workplace.
Tracey Diamond (26:54):
Is that something that you see continuing in the current administration? I know that OSHA's certainly been much more active in the last several years, but do you see any changes now that we're in a new administration?
Greg Narsh (27:05):
Yeah, that's a good question because certainly on the regulatory front, things are changing. But at the level that OSHA inspects and enforces the standards, those tend to be lifetime employees who really take their jobs seriously. We represent clients sometimes negotiating against an OSHA citation, but these folks take their jobs very seriously. And so while there could be some change, I don't expect drastic change in this.
Emily Schifter (27:38):
So many of our listeners are probably familiar with the fact that OSHA had a lot to say about workplace safety during the pandemic. This isn't entirely new. In fact, in Apollo 13, there's a scene where one of the original astronauts slated to join the mission. Ken Mattingly was grounded after a potential measles exposure. Let's listen in.
[BEGIN CLIP] (27:58)
Doctor:
I just got some blood work back from the lab. Charlie Duke has the measles.
Jim Lovell:
So we need a new backup?
Doctor:
You've all been exposed to it.
Jim Lovell:
Well, I've had the measles.
Deke Slayton:
Ken Mattingly hasn't.
Jim Lovell (28:12):
You want to break up my crew two days before the launch when we can predict each other's moves and we can read the tone of each other's voices?
Doctor (28:21):
Ken Mattingly will be getting seriously ill precisely when you and Hayes will be ascending from the lunar surface to rendezvous with him.
Deke Slayton:
Jim, that's a lousy time for a fever.
[END CLIP]
Emily Schifter (28:29):
So are there any lessons that employers can learn from all of this?
Greg Narsh (28:33):
Well, OSHA certainly does take seriously health. We focus more on the safety in terms of not cutting your finger off or some other type of physical injury, but they certainly do focus on health. And just by way of example, during COVID, I think the whole world was reacting very quickly to COVID. And OSHA actually introduced and sort of rammed through more quickly than typically they would regulations on vaccinations and other things related to COVID that was actually challenged and OSHA eventually withdrew it. But there are a number of things under OSHA. One is, for example, medical fit testing. And this involves if there's a dusty environment or some reason that you need a mask, not necessarily a COVID mask, but just maybe to prevent against dust or fumes. You can't just hand someone a mask. They have to be medically evaluated to ensure that the mask will fit properly.
There aren't gaps around the edges, etc. Another one that many employers are not aware of is called the bloodborne pathogen standard. And if any of your employees are exposed to blood or what they call O-P-I-M, which simply means other potentially infectious materials, and that just means any bodily fluid of any kind, you need to have a written exposure control plan. And by the way, this could be your designated first aid person in the facility, anyone who may come in contact with these things. And that includes offering hepatitis B vaccinations, which are voluntary. The employees don't have to take it, but I recommend getting a sign off if they refuse. And then there are a number of medical monitoring requirements under OSHA. It depends on the chemical, but if someone is exposed to lead, for example, you may have to do periodic blood lead level tests to determine that they're in compliance.
Tracey Diamond (30:51):
I would imagine the bloodborne pathogen standards and the OPIM standards are super important for our healthcare employers that are dealing with that every day. Right?
Greg Narsh (31:01):
Exactly.
Tracey Diamond (31:02):
Emily, I think in addition to OSHA, we have to think about the ADA, don't we?
Emily Schifter (31:06):
Yeah. I think we often have clients who have that question come up, and we realize it intersects with OSHA because the ADA has a lot to say about when you can monitor employees medical conditions, and if you do at what stage in the employment relationship, whether it's job related, consistent with business necessity, what you do with those records, they've got to stay confidential. So definitely some overlapping obligations to be aware of.
Tracey Diamond (31:28):
So we've covered a lot of ground, but let's turn to our final clip in this clip. After some tense moments while the crew reenters Earth, they splash down safely and everyone has recovered. Phew. Let's listen in.
[BEGIN CLIP] (31:42)
Ground Control:
Odyssey, uh, Houston. Do you read?
Jim Lovell:
Hello, Houston, this is Odyssey. It's good to see you again. (APPLAUSE)
[END CLIP]
Tracey Diamond (32:06):
So after a major incident in real life beyond inspections, citations, and penalties, what can employers do to help prevent similar issues in the future? Greg?
Greg Narsh (32:16):
Well, one of the things will be in almost immediate to perform an incident investigation. And this is a little bit tricky. You need to do it. You need to learn why it happened and how to prevent it. But I typically advise clients be a little careful about what you write down. And by that I mean don't necessarily editorialize describe the facts because some of these things may or may not be privileged. They may be discoverable. And I sometimes tell clients, would you be comfortable testifying about what you wrote down five years down the road? Now, that's not to say don't do a thorough job and create the report that you need to create. But one of the things I recommend, and we talked a little bit about it earlier, was doing some sort of self-audit or analysis. And this is both post-incident, but also pre-incident.
I can't stress enough the importance of doing what I'll call a front end audit, some sort of job hazard analysis or something like that that identifies potential for future incidents. But it's very important if you make a list of problems to fix those problems and do it promptly. Because if OSHA comes in and one way or another gets their hands on that list, now you've created a roadmap that says, I identified this problem six months ago and I've done nothing about it, which can result in a willful citation. So it's just very important to assess yourself, do training and retraining. But another very important thing is to have a safety committee. And this should be made up of both hourly and management personnel that can work together, that could meet once a month or whatever the frequency is, and talk about issues because the hourly folks work with the equipment and so forth on a daily basis. So committees can really be very helpful. And then outside resources, whether that be consultants, lawyers, etc, can really be a good preventative measure.
Emily Schifter (34:25):
So one last topic briefly, Greg, you mentioned earlier that OSHA gives employees whistleblower protections if they raise a complaint. What are the key things for employers to be aware of there, other than, as you already mentioned, how easy it is to initiate one of those claims and how seriously OSHA takes them?
Greg Narsh (34:40):
Yeah, and as I said, I've seen an upward trend in the last five or seven years. Many more whistleblower cases are being filed, and the idea, obviously of the whistleblower is that if an employee is fired or somehow disciplined, allegedly for their engagement in what's called protected activity, and that means typically reporting a safety problem or having a complaint related to safety, etc. And something very important to keep in mind is that whistleblower cases are actually handled by a separate area of OSHA. There's one area that handles sort of the standard citations, even all the way up to fatality cases, but whistleblower cases are handled separately. And OSHA itself will tell you they are not a neutral between employers and employees. They advocate for the employees, and that's their role. If a complaint is filed, OSHA may or may not react very strongly to it, but if a whistleblower complaint is filed, I compare it to crying wolf, but for the very first time.
In other words, it gets OSHA's attention every time, and it often takes a very long time to resolve, in part because OSHA will undertake a flurry of activity and then may take two or three months to evaluate and then come back. So it can take a year or longer. Tracy and I have done several of these together. We sure have among the problems while this thing goes on and on, is that potentially back pay and benefits are accumulating, etc. So settlement is always possible. But another important note is that even a settlement has to be approved by OSHA, and that's even if the employee agrees, because what they want to be sure of is that the employer hasn't strong armed an employee with a legitimate claim. Here's a thousand bucks, just go away. So even an employee approved settlement has to be approved by OSHA.
Tracey Diamond (36:52):
And of course, employers need to be careful to avoid any claims of retaliation from employees who did blow the whistle that they somehow were retaliated against in terms of an adverse job action that happened shortly thereafter. Or there's some evidence of causation between the complaint and the adverse job action. So retaliation like in all areas of employment law, is also a big concern. So we've covered a ton of ground here. Greg, you are so, so knowledgeable in this area, and we really thank you for your time and joining us on our podcast today. Thank you to our listeners for listening in. Shoot us an email, let us know what you think. Check out our quarterly newsletter and our blog HiringtoFiring.Law and look for us on all our episodes. Thanks for listening.
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