Robert J. O’Hara, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s New York office, was quoted in the Bloomberg Law Daily Labor Report, in “OSHA Warrant Litigation Warns of Safety Enforcement Priorities,” by Fatima Hussein. (Read the full version – subscription required.)
Following is an excerpt:
A dispute between OSHA and Foundation Food Group Inc. over an agency search warrant served after a March ammonia leak at a Georgia poultry plant has erupted into a U.S. court battle that attorneys say points to the Biden administration’s ramp up of worker safety enforcement.
Foundation Food and three of its contractors already were accused of 59 federal safety violations following a separate fatal nitrogen leak in January at the same Gainesville, Ga., plant, when U.S. Labor Secretary Marty Walsh last month signed off on a request for a U.S. court order to expeditiously compel five company executives to answer, under oath, OSHA’s questions about the March incident.
Foundation lawyers responded by accusing the Occupational Safety and Health Administration of “selective and vindictive prosecution,” while vowing they remain willing and ready to comply.
Though the court hasn’t yet ruled, management-side attorneys warn that the standoff signals a new era of OSHA enforcement that will force employers to determine whether they want to risk public battles over the federal safety agency’s jurisdiction to inspect workplaces. …
‘Risk Tolerance Determination’ …
The set of facts between Mar-Jac and Foundation Food are too different to draw conclusions, said Robert J. O’Hara, an employment attorney at Epstein Becker & Green P.C. in New York. “Mar-Jac was very specific about OSHA wanting a wall-to-wall review of the facility, while Foundation Foods is about a procedural use of subpoena power for witnesses,” he said by phone.
“The real question is whether the Biden administration will be more strident in this space, and the answer is yes,” O’Hara said. “The new secretary of labor isn’t shy about pressing from a regulatory perspective, and there’s going to be a lot more tools being used—not just OSHA but by wage and hour and more of a regulatory phase in this administration.”