Increasingly, failure to take tower safety seriously could lead to jail
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If the investigation is criminal in nature, it’s very important to avoid disrupting what is now a crime scene, even if the disruption is innocent and not borne of a desire to obstruct.
“If you start messing around with a crime scene, you’re going to go to jail. You need to avoid that, you need to know up front how you’re going to handle these things” Foulke said. “You need to have multiple managers, at least two, observing what’s being done by the company in order to preserve any evidence. Because, I guarantee you, if you start moving stuff, they’re going to start asking a lot of questions — the police, OSHA and whoever else.”
He added that it’s never a good idea to tell an OSHA investigator to come back with a warrant. But OSHA understands the need for having company officials present during an investigation, and investigators generally are willing to wait for them to arrive, within reason.
“You need to make sure that you have two managers for any inspector there. … You have to have people with them at all times, people who are knowledgeable and know how to respond to questions without disclosing information or making admissions that are binding against [the company],” Foulke said.
In addition to company officials, an attorney should be present during a criminal investigation, particularly when a fatality has occurred as a result of an alleged OSHA violation. It’s also a good idea to get your insurance carriers involved from the outset — but you have to control them, Foulke advised.
“They’ll automatically think that they know … what caused the accident, and they’ll [make] statements and reports that really hurt the company,” Foulke said. “That’s why you have to coordinate that — you cannot let that happen to you. … This is all discoverable, and all of a sudden, this guy is a witness for OSHA, and even for the plaintiff’s lawyers.”
Foulke outlined a four-point defense plan that asks the following key questions:
- Are policies and procedures in place?
- Have employees been trained on these policies and procedures?
- Have regular, documented audits been conducted to ensure that policies and procedures are being followed?
- Are employees who have violated the policies and procedures disciplined?
Answering each of these questions in the affirmative will make it very difficult for government or plaintiff attorneys to establish that a willful violation of OSHA requirements has occurred, Foulke said.
Of these, the most important is the first — Foulke advised tower owners and operators to establish safety programs that exceed OSHA’s requirements. Doing so will avoid a lot of headaches, legal fees, fines and incarceration. It also will avoid a good deal of heartache.
“It’s important because it will keep you from having to do the worst job you’ll ever have to do,” Foulke said. “And that’s having to tell someone that their [loved one] is not coming home tonight, because they got killed on the job.”