This week we are attending the ABA Occupational Safety and Health Law Meeting in Sarasota, Florida. The meeting includes representatives from the U.S. Department of Labor, OSH Review Commission, the MSH Review Commission, OSHA and MSHA Judges, and the Solicitor’s Office, as well as management, labor, and safety professionals.
The final day of the ABA OSHA/MSHA Midwinter Meeting was focused on storytelling in many different contexts. The day’s initial sessions focused on the context of trials, while the day concluded with sessions focusing on telling the stories of underrepresented workers and disparate impact felt by those workers with respect to workplace safety.
The day opened with an engaging panel that included three Administrative Law Judges from the Occupational Safety and Health Review Commission: Chief Judge Covette Rooney, Judge Heather Joys, and Judge Patrick Augustine. The Judges provided their perspectives on the benefits of telling a good story during the trial process – both at trial and in post-hearing briefing. It was clear from the discussion that holding the Judge’s attention by telling a convincing story is just as important as stepping through the technical and legal elements of the case. Using testimony and exhibits in a way to create a continuous arc from start to finish will go a long way toward assuring the Judge knows what your argument is and why you believe your client should win.
Following the OSHRC ALJ’s storytelling discussion, we had an opportunity to observe a mock jury trial where these suggestions were put to the test. Following the mock trial, the mock jury provided feedback to the attorneys and witnesses about which tactics were effective and which tactics were not.
The third session of the day focused on disparate impact (and disparate treatment) and how worker safety is affected. The panelists provided their own real-world experience on how policies may intentionally or unintentionally affect employees differently based upon a protected characteristic or class and how this may affect safety in the workplace. According to the panel, the workers who face the most exposure to safety hazards tend to be underrepresented minorities, oftentimes non-English speakers. Many of the examples arose in the context of the COVID-19 pandemic and the disparity between higher and lower income workers with respect to exposure to COVID-19 in the workplace.
The final panel of this year’s meeting discussed the interplay between politics, public health, and workplace safety, using several recent proposed and enacted OSHA rules from the past several years. The panelists discussed difficulties in maintaining and enforcing workplace safety stemming from divergent politics on issues such as masking, vaccines, and identity. There was a vigorous discussion about the apparent disconnect between OSHA’s responsibility to ensure employee safety and health and the rising divisiveness in politics that sometimes hamstrings the ability to protect workers, with a focus on workplace violence, gender identity, and bathroom access for transgendered workers.