A Weekly Publication For The Occupational
Safety & Health Community             
FREE Flash Reports
Arrow FREE to your inbox!







Fred Walter

Attorney, named partner at Walter & Prince, LLP, specializing in Cal/OSHA representation for employers in citation, investigation, appeals, crisis management and pending litigation.

A vocal critic of DOSH enforcement practices, Walter is one of the stalwarts of occupational safety and health legal circles in California.

Fred WalterResume: Walters has represented employers in California and other states in OSHA compliance matters since 1985. He works with employers, company general counsels, safety directors, risk managers and human resources administrators to defend them in OSHA citation cases and to develop safety programs.

Schools:  He received his law degree from Lincoln University School of Law in Sacramento and an undergraduate degree from San Jose State University.

Certifications/Designations:  He is co-author of the “Workplace Safety” chapter of the California State Bar publication, “Advising California Employers and Employees.” He is a member of a number of associations, including Associated General Contractors of California, Legal Affairs Council, California Chamber of Commerce (Employers’ Advisory Council), the North Coast Builders Exchange, the American Society of Safety Engineers and the California State Bar and American Bar Association.

  Q&A  

What are the top issues in California Occupational Safety and Health

How is the Appeals Board going to apply AB 2774? For example, what will they decide is the definition of “realistic possibility?” What does the language about inspectors being “deemed” experts mean and how does that change what happens at hearings?

Now that the Court of Appeals has confirmed the existence of a “reasonable diligence” defense for “controlling employers,” how will the Appeals Board define what sufficient diligence is?

Will the division be able to muster a coherent, uniform and non-threatening approach to its consideration of employers’ responses to 1BY letters? We know of district managers who thoughtfully review the employer’s responses and others who freely admit that they don’t read them. We also know of at least one case in which the employer’s attempt to explain what happened was used to increase the classification of the citation from serious to willful. Not a good incentive for the sort of frank communication the law was intended to foster. 

One group – Hispanics/Latinos -- suffers a disproportionate number of injuries and illnesses. Why? How should California address this problem?

I am not a member of the Tea Party and I am not looking to send everyone home. They are here, they are here, and they are going to be here. John McCain was right; we need to incorporate them into society as opposed to keep them illegal and underground. But my point is, more to the point is that I think CAL/OSHA and FED/OSHA need to understand that there is a cultural difference and a cultural resistance to safety and health in the Hispanic community. Even those who have been in my experience, those who have been raised here, they will always say yes to the patron. They will always say we understand and then you go away and they do it the same way they have done it, the same way that they were trained to do it in their home country, which is absolutely not the CAL/OSHA way.

 

If you could change anything about Cal/OSHA, what would it be?
                a. Should enforcement be increased?
                b. Communications
                c. Training for inspectors

Well, I guess I would come back to inspections and if I could change Cal/OSHA, I would like to see inspections done in a more professional manner. I do not like, I’m thinking of one IH in particular right now who will interview an employer, and when he hears something that sounds damaging, he switches subjects. That is a tactic thing you use in depositions against opponents, and so he gets a thoughtless remark on the record and that becomes his truth. If I could change one thing in enforcement, that probably would be it. If I could change one thing in consultation, it would be to give them money to really do the job that I think they can do. That is part of a long-term, proactive side of things.

Some observers say injury and illness rates are higher than they appear because employers find ways to hide injuries, or not record them. Do you agree this is a serious problem and if so, how should it be addressed?

I have never had a client who I found had deliberately tried to mislead the division. In my experience, injuries and illnesses are not reported or recorded because employers are confused by what must be reported or recorded, or their attention is diverted by the many issues they have to handle after a traumatic event, or they are flat-out unaware of their responsibilities. So I believe that the frequency of intentional non-reporting is rare. Rather, I believe these allegations are used to press agendas, not to promote safety.

California  has a long history of crafting groundbreaking regulations that the rest of the country eventually picks up. What's the next one?

My best guess is indoor heat illness. But I think that for the next few years, the real action will be at the Appeals Board, which will soon start writing decisions on how AB 2774 will be applied, and is poised to adopt new rules on the way appeals are handled and evidence is considered. The Cal/OSHA appeals process is no longer the low-key dialog between judge, inspector and employer, which was envisioned when the program was originally adopted, and it looks like it never will be again.

Will AB 2774 resolve the problems cited by DOSH on serious violations and provide a more equitable appeals system? If not, how should it be reformed?

Well, I do not know it probably is going to be fact-intensive; it will increase the dilemma for the employer. Do you participate with the idea that “Were they concerned that maybe you overeducate Cal-OSHA?” This is a litigation process; whether they think it is or not, it’s litigation. Or do you weigh your chances? Well, I think the change in 2774 to require or allow communication between the employer and the division is an interesting idea, and I hope it works. As far as the process itself goes, I do not think enough people realize the process is basically or has become confrontational; it is just basically litigation. It started out with the idea that the board would be an informal place for employers to go and talk it out. 

Should DOSH approach enforcement with more of an eye toward achieving compliance, rather than looking for violations to cite? And if so, would such an approach work?

Oh, I think the occupational safety and health as it is applied these days is too much stick and not enough carrot. I think there is a difference between safety and enforcement of safety regulations. Half of what we do for our clients is defend them against citations and give them a reasonable expectation of what will occur if we take the case to hearing. But the other part of what we do is to coach them and help them in being proactive, and that does not get reported in “Cal-OSHA Reporter.” It does not get seen by the Appeals Board, but it is part of every case we cover.

[We’re trying to help them change their safety cultures] where it needs changing. After all, if we are representing a client, the analogy of criminal law comes up and it is pretty accurate. If we were criminal lawyers, we’d be trying to keep our people out of jail. We’re Cal/OSHA lawyers, so we’re trying to keep people working, keep them going, and assist them in figuring out ways to sort of be bulletproof and immune from OSHA in the future.

We have, after all this time in the industry, a go-to list of consultants, IHs and CHPs that we will bring in to work with clients on some cases. You have to recognize where there is a breakdown. Is the breakdown in communication? Is the breakdown in overall attitude? Those are the hardest ones to get. So early on I learned that the safety culture really starts at the very top of the organization.

How did you get started in safety? Was there any particular experience in your career that triggered your interest in safety? What’s interesting about it? What’s interesting about it now?

In 1985 I had the good fortune to investigate a workplace accident in a company with Bob Peterson. We became friends and through him and others I developed a passion for both safety and for using my legal training to help employers evaluate citations and fight ones we believe are wrong.

To learn about safety I joined ASSE and NSMS, where I met a number of talented and generous tutors. I can’t name them all, but would be remiss not to mention at least Chuck Mitchell, Dave Smith, Joel Cohen, Mike Williams and Jon Moldestad. To learn the law of safety, I subscribed to “Cal-OSHA Reporter” and read the decisions religiously. Still do.

What’s interesting about the law of safety just now is how the changing of the guard is changing the way OSHA does business. In the past four years we have seen a crisis in our state’s relationship with Fed/OSHA, the retirement of Senior Engineer Larry McCune, who was a walking encyclopedia of DOSH and Title 8 history, a new majority on the Appeals Board, a new chief counsel, a new chief, and a new deputy chief for health. So far, the new Cal/OSHA is looking less collaborative and more aggressive.

What’s interesting to me in the long run is the resilience and imagination of employers when confronted by OSHA with new challenges. When I started in the mid-‘80s, most of my clients were residential wood frame subcontractors, because a lot of people fell from top plates. They were convinced that 1669, 1670 and 1716 would put them out of business, but new tools and techniques were developed and the frequency of those injuries and citations dropped. We see this in most of the challenges OSHA places before employers. And we see it work best when OSHA is leading a collaborative effort instead of issuing fiats.

 

Copyright 2012 Providence Publications, LLC. All Rights Reserved.