PART THREE: Conducting Fatality Accident Investigations
This is the third of a multi-part series regarding project fatalities and related considerations for construction companies.
Accident investigation should begin as soon as possible. Typically, companies will want to appoint an accident investigation team responsible, with full authority, to fully investigate the accident. Counsel should be consulted to evaluate attorney client and attorney work product privilege issues, including consideration of the role of the attorney. Company leaders need to know that not all communications with counsel are privileged or protected from later disclosure, and there is a myriad of complex legal and ethical aspects respecting counsel’s role with investigations. For that reason, counsel generally will not be part of the company’s formal internal investigation team, and instead, fill a more typical role of counsel and advice to company management regarding the investigation and the decision-making process.
As when dealing with media, the accident investigation team should focus on facts; and not on speculation or conjured opinion. The members of the investigation team should, when possible, be specifically trained to conduct investigations. Efforts should be taken to try and maintain confidentiality regarding investigated matters. Further, in designating the investigation team, company leaders need to recognize that team members will likely be called as witnesses in any litigation involving the accident. Investigation should minimally include the identification of witnesses and tangible evidence; and the investigation team must take proactive action to preserve related evidence to avoid later negatively impacting claims of spoliation that can, among other things, result in the imposition of legal sanctions and adverse presumption finding respecting liability.
In addition to your internal investigation, after a fatality notification, an OSHA worksite investigation is a likely certainty. Employers have certain rights regarding OSHA inspections, but it must be kept in mind that employees have various rights as well through, primarily, the Occupational Safety and Health Act of 1970, as amended (OSH Act). Among those worker rights are the right to ask for an inspection without OSHA telling their employer who filed the complaint; the right, should they choose, to speak in private with OSHA inspectors; and rights against employer retaliatory conduct respecting worker exercise of rights given by the OSH Act. If violations are identified by OSHA after an incident, employer responsibilities under the OSH Act include the posting of citation information and certain injury data where workers can see them.
Management must be aware that interview statements by management representatives as part of OSHA investigation bind the company. Besides employee rights to be present and participate in inspections, they also can participate in management interviews, regardless of whether the management witness wants them there or not. Moreover, after the incident, it is likely that various third-parties may seek to obtain information available in the OSHA investigation file for varied purposes, including things like possible future litigation, union matters, or competitive advantage. Care should be taken to identify any confidential business information as such to help avoid inadvertent disclosure to such persons.
Companies cannot preclude workers from talking to OSHA representatives, although employees have the right to not speak to an OSHA representative. Counsel should be consulted to determine whether the company has a duty to “indemnify” (secure against or compensate for loss or damage) employees respecting investigations. For example, California has a statute, California Labor Code Section 2802, that requires employee indemnification respecting “all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties . . .”; which would include, for example, employees that become investigation subjects, or criminal defendants, because of the workplace incident. Related legal obligations will vary by jurisdiction, and specific employment or project agreements.