Davie, Florida, OSHA Late Notice of Contest - Foot Protection and Recordkeeping Violations
OSHA alleged, among other things, that Home Depot employees were not wearing appropriate foot protection, namely, steel toe shoes. We were preparing for trial, including the introduction of expert witness testimony on the foot protection citation, when the Secretary of Labor withdrew the citations before trial, resulting in a complete victory for Home Depot.

New York, New York Eye Wash Exposure and Eye Wash Facilities OSHA ALJ Trial
We represented Home Depot in contesting an OSHA citation in New York where OSHA alleged that the retailer lacked suitable eye wash facilities for treating employees who could supposedly get chemicals in their eyes while cleaning up spills of consumer products in the garden department. We, among other things, challenged whether the agency could meet its burden to prove exposure to any hazardous chemical that would require a 15-minute continuous flush eye wash station. Our efforts resulted in the Secretary of Labor withdrawing the citation on the eve of trial, resulting in a complete victory for Home Depot.

Washington, Safety Committee Variance
We represented Home Depot in applying for a variance from the Washington Division of Occupational Safety and Health ("DOSH") requirement that employers maintain safety committee elections. In doing so, we drafted the variance application and interfaced with DOSH officials regarding the merits of the variance. Our efforts resulted in DOSH awarding Home Depot a permanent variance.

Houston, OSHA Crane Violations
We represented a Houston-based demolition company in its defense of crane violations issued by OSHA. We were able to demonstrate to OSHA that some citations were inapplicable, which resulted in their dismissal. Further, a reduced penalty was negotiated, resulting in a favorable settlement for the client.

Maryland OSHA Machine Guarding
Maryland OSHA issued several citations to Home Depot stores throughout the state regarding an alleged amputation risk associated with unguarded portions of large cardboard balers. We handled the matter from the ALJ level through appeal, obtaining a complete dismissal of the applicable machine guarding citation. In doing so, we convinced the Appeals Board that no exposure existed to Home Depot Associates.

U.S. Secretary of Labor - Arkansas Matter
We quickly responded to a catastrophic fatality event by arriving at our client's facility to prepare for the OSHA investigation. We interviewed numerous employees and prepared managers for their interviews in the investigation process. We managed the interplay of private claims from the estate of the deceased along with the investigation. OSHA issued only a handful of citations with minimal fines. OSHA did not cite our client for any infractions linking the incident to non-compliance with the applicable OSHA standards.

U.S. Secretary of Labor
We represented a manufacturer in the Dallas-Fort Worth area who was cited with more than 40 citations, including alleged willful violations of the Occupational Safety and Health Act. The proposed citation fines were in the six figures. We assisted the client with an aggressive campaign to identify flaws in the investigation methodology, especially in areas of noise conservation and respiratory protection, to present a firm defense at the informal conference. Our response also included the defense of vindictive prosecution by the government. The matter moved to contested proceedings and we obtained a favorable resolution after the hearing with the settlement judge.

Secretary of Labor v. The Home Depot #6512,OSHRC, No. 07-0359 (September 2009)
A recent decision from the Occupational Safety and Health Review Commission provides employers who must log workplace injuries and report workplace fatalities some latitude as to when an injury or fatality is “work-related.” Specifically, in a matter in which Haynes and Boone represented the employer/respondent, the Commission clarified that simply because a fatality or injury occurs while at work, this is insufficient to presume the cause was work-related to trigger OSHA reporting or presumably injury-log recording duties. Rather, the Secretary of Labor must present evidence of a work-related event or exposure.

California Department of Labor, Docket No. 05-R1D4-1572 (California 2006-2008)
The underlying allegation involves whether our client as the primary employer on a multi-employer worksite must provide alternate means of fall protection to employees of a contractor who tarp loads of lumber on flat bed trucks at a distribution center. The Administrative Law Judge granted our client’s appeal of the citation and vacated the fall protection citation. In doing so, the Judge agreed that our client was neither the creating or controlling employer of the hazard.

U.S. Secretary of Labor - Florida matter, (Florida 2006-2007)
Following the fatality of a contractor, OSHA launched an investigation. Immediately following the fatality, and contemporaneously with OSHA’s investigation, our client implemented an overall safety compliance audit and implemented best practices well in advance of receiving the OSHA citations. Our designed strategy was to proactively address safety improvements, whether possibly related to the accident or not, in an effort to demonstrate an overall safety commitment to OSHA. This strategy was effective. The cited items and fines were well-below the expected range for the length of the inspection at issue and the underlying fatality. Significantly, the citation contained no allegation that the Company’s purported failure to comply with the cited regulations caused or contributed to the contractor’s death. This resulted in a favorable settlement for our client.

Commissioner of State of Minnesota matter, OSHA Docket No. 8878 (Minnesota 2007)
On the eve of trial, the Assistant Attorney General settled on terms favorable for our client in a matter involving alleged improper guarding of a cardboard baler and electrical junction box hazards.

Utah Occupational Safety and Health Matter, Case No. 5309164564 (Utah 2006-2007)
When a temporary worker was fatally injured while working on a front-end loader, OSHA cited our client for failure to have trained the worker on lockout/tagout procedures implicated by the accident. After engaging in extensive discovery, we were able to favorably settle the matter shortly before trial.

U.S. Secretary of Labor Texas Matter, OSHRC Docket No. 07-0359 (Texas 2007)
A recent decision from the Occupational Safety and Health Review Commission provides employers who must log workplace injuries and report workplace fatalities some latitude as to when an injury or fatality is “work-related.” Specifically, in a matter in which Haynes and Boone represented the employer/respondent, the Commission clarified that simply because a fatality or injury occurs while at work, this is insufficient to presume the cause was work-related to trigger OSHA reporting or presumably injury-log recording duties. Rather, the Secretary of Labor must present evidence of a work-related event or exposure.

U.S. Secretary of Labor - Whistleblower matter, Matter No. 6-3280-05-036 (Texas 2005)
Obtained a complete dismissal from OSHA regarding a former employee’s Section 11(c) retaliation/discrimination complaint. We convinced OSHA that the Company discharged the employee for a legitimate, non-retaliatory reason.

U.S. Secretary of Labor - West Virginia matter, OSHRC Docket No. 05-0399 (West Virginia 2005)
Following multiple inspections at West Virginia facilities, OSHA issued citations concerning our client’s permit required confined space program. Under § 1910.146(c)(7)(iii), after an employer has reclassified a Permit Required Confined Space (“PRCS”) to a non-Permit Required Confined Space (“NPRCS”), the employer must create a certification document, which contains the date, the location of the space, and signature of the person making the determination that the hazards in the otherwise PRCS have been eliminated. Our client completes this § 1910.146(c)(7)(iii) certificate annually for the compactor space of various refuse collection trucks when authorized Technicians work in the compactor space. OSHA maintained that the NPRCS certification should have been created for each and every entry by a Technician entering the confined space, imposing a significant documentation burden on the employer. One day after we filed a Motion for Summary Judgment, the Department of Labor dismissed the case in its entirety and issued a de minimis citation.