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Kevin Bland

Attorney, Ogletree, Deakins, Nash, Smoak & Stewart Kevin Bland

A former ironworker who suffered an injury that led to a second career, Bland has become a force to be reckoned with in California safety circles, representing employers in appeals and becoming a key player in the rulemaking process, lending his considerable experience.

Resume: Bland began his career as an ironworker in Los Angeles and worked as an erection foreman on high-rise buildings. He has served as general counsel to the California Framing Contractors Association and CALPASC OCIE Chapter. He served as vice president of a corporation credited to perform testing of construction crane equipment. As an expert consultant, he has advised general contractors, offshore oil platform operators and crane and rigging contractors on a range of safety operations.  

He has been a member of a dozen Cal/OSHA rulemaking advisory committees, including Steel Erection Safety Regulations, Residential Framing Fall Protection, Residential Roofers Fall Protection and others.

Schools:  Bland graduated cum laude from Whittier School of Law in 2000. He attended the University of Phoenix and has a B.S. degree in business administration.

Awards: He was awarded the AGC of California, Associate of the Year, Contribution to Industry Safety.

Certifications/Designations: Bland holds a contractor’s “A” license. He represents a variety of industry clients in construction, manufacturing, motion picture and television and other general industry clients and trade associations. He’s a member of the Southern California Contractors Association, Associated General Contractors, Engineering Contractors Association and the Colorado Trial Lawyers and the American Bar Association Construction Law Section.

 

Q&A

What are the top issues in California occupational safety and health today?

Obviously, we’ve been focused lot on heat illness and the heat illness regulations in California. I represent a lot of different industries. One in particular, in construction there is a lot of fall protection as result of the federal change. I think we are ahead of the feds in what we have for residential fall protection. Although that is a top issue nationally, we got it right in California.

Over the past four or five years there has been a heat illness prevention regulation that was developed. It became effective November of last year. Now that has been the focus of enforcement and compliance efforts through this summer.

 

Which other regulatory areas still need attention?

There has been talk about addressing the penalty structure in California. I am not saying I believe it needs work, but it is an area that has been in discussions. There have been some discussions of reporting serious injuries and taking a look at that particular regulation and the penalty structure. That is something I would see possibly coming up in the next year or so.

There has also been lingering out there a multiemployer, a controlling-contractor set of affirmative defenses. That was in a draft form and they had a couple of advisory committee meetings. But that got put on the back burner. I would suspect that will be something that will be brought back to the forefront soon as well.

In essence, what it did, it laid out if a controlling contractor was doing things on the jobsite proactively, that dealt with safety. It would be their burden to show they were doing those things proactively to defend themselves against a citation that may be issued, that may have been some violation that occurred on the site. It is to help clarify some of those proactive things that a controlling contractor should be doing.

 

Injury and illness rates continue to decrease, with some exceptions. What's the next great leap forward in occupational safety and health?

In my experience in the past 10 years, in dealing with residential construction, we have seen a great leap in compliance, more and more and more through the years. I think it is an indicator that what is going on in California is working.

I wouldn’t consider the rates continuing to decrease a bad thing, or it means something illicit is going on. I think it means people get it and are more in compliance and paying attention to their safety programs. I think it’s a good thing. I don’t know what the next great leap might be from that. The goal is always zero at the end of the day. So I guess the next great leap would be to go from some injuries to no injuries in a perfect world.

 

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

I don’t think that race or education, or creed, religion, or whatever category you want to use has much to do with suffering more injuries, other than certain segments of industries have a tendency to be high risk. If more of one particular group that works in one particular industry, I think that is where that was derived.

There are a lot of stereotypes like the Irish police officers or the American Indians who are all ironworkers back East. But that’s not necessarily the case. I think it depends on what industry the rates are in and the number of a particular group in an industry. Obviously, when you have multicultures and have communication with them, I see with every program I look at for my clients it is in English and in Spanish. It’s communicated to them in their native language and I think the more of that we do the better it is.

When it comes to training and also as different industries continue to progress in safety world, you will see that continue to reduce.

 

The Injury and Illness Prevention Program is the basic safety requirement for California employers. Now Fed-OSHA is working toward adopting its version of this requirement. Does the California IIPP standard need revision or is it fine the way it is? And if it needs revision, how so?

There are always, always things that can be done better and better. As far as the IIPP and the way it functions in California and for California employers, I think it has been very effective. That is probably another contributor to why the injury and illness rates continue to decrease. You have more and more employers that have compliant IIPPs that drive their safety programs. I think it’s a good thing that federal OSHA is looking at developing a regulation that is similar to California. I hope it is similar to California. I would hate to see them reinventing a wheel that has been very effective.

Do I think it needs to be revamped? No. Do I think it has been effective? I think it has. I think it has been a great road map to safety programs in California.

 

If you could change anything about Cal/OSHA, what would it be?

                a. Should enforcement be increased?

                b. Communications

                c. Training for inspectors

Here is one thing that I have always preached. I think people get confused between enforcement and compliance. I think the goal is compliance. The goal is to have a less sophisticated employer learn how to comply and not be afraid of Cal/OSHA. I think if enforcement could turn into more of a compliance arm, so to speak, that would go a long way. Then you don’t have people running the other way if they see OSHA driving up.

I think that effort can be done through education. Take the heat illness we talked about. The outreach the division did with the employment community and worked with some of the employer trade associations and representative groups and coalitions and worked getting that information out. We saw that to be very effective. So the more they do of that the better.

Training for inspectors, that’s something that I truly think continues to be a need. I always thought it be in a perfect world, if you had experienced construction safety personnel inspecting construction companies that had been trained and understood construction. And you have trained process management inspectors that have experience in process management. If you’re inspecting an oil refinery, have experience in that environment. There are so many unique things to those types of industries that whenever you have some sort of specialized training and specialized experience in those areas [it helps]. I would love to see more specialization. It is very difficult to have a one-size-fits-all OSHA inspector. There are limitations to that, but there is one thing I would like to see -- a focus on industry specialists in training of inspectors.

 

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 completely disagree with that. This is based on my own experience. There has been a trend among folks that I represent. If there has been an injury, even if it is not serious, we go ahead and report it. Then if it turns out after diagnosis it doesn’t meet the definition of serious injury, we follow up with the division. We let them know. I think more things are being reported and there is less fear of that.

It is better to err on that side. I haven’t seen anything that would indicate that the rates are changing because employers are hiding the injuries. There is a reality, too, that whenever you have an employee injured, if you look at workers’ comp there are so many different safeguards put in place that deal with injuries [that it would] be pretty hard to hide from it. There are some that do. [For] every aspect there is someone that finds a way around the system. Do I think it is the vast majority? No.

 

 

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

I don’t know what is going to be next. I will say this, I think the way we go about the rulemaking process in California it really does work. The use of advisory committees, where you get the stakeholders together, labor, management, the division around a table to craft something that not only work on paper when you have the specialists around the table. And you have buy-in. And the more buy-in you have to a regulation when it passes, the more compliance you get and the more safety you get.

Also, with the standards board to be a backstop for the rulemaking -- a balanced board to work with, to basically help the process to help to get the regulations passed that are effective. I think the standards board is vital to that process. So you combine the advisory committee process, that is balanced with a standards board that is made up of labor, management, and have a safety specialist and a health specialist on the board. So that’s, I think, the recipe for the great regulations that we’ve had come out. I’ve been fortunate enough to work on a few of them. It would be nice to see the federal OSHA start following something close to that. I think they would see some success. I know they have had a couple negotiated rulemakings that have worked, the steel erection regulation they worked on. The number of years it took to develop that compared to what we work on in California, it is a slower process.

 

 

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?

I can tell you what my experience has been with AB2774 because it has been in place for eight months. There are still a lot of unanswered questions. I was intimately involved in the early stages all the way through to its final adoption with some input. When you say the serious problems cited by DOSH, a couple things jump out at me. One is, I don’t think it is an indicator the system is failing because you’re not issuing more serious violations.

To me, that is an indication people are getting it. People are becoming compliant. If that’s the serious problem we’re talking about, I don’t think 2774 drives at that. What it does do is it adds some balance to the burden of the division of establishing a serious violation. When you [address] the actual hazard you are trying to prevent and identifying that relationship, I think you have a more effective means of classifying a citation as being serious or general.

In the previous version, although the probability that they applied was a very high probability, the substantial probability of serious harm, there was this basic assumption that was in the regulation that you assumed the accident occurred as a result of the violation. Now by removing that presumption and really looking at what occurred, you are looking at what is the hazard you are trying to address and what is the probability based on the facts and circumstances around that hazard, I think it does have a leveling ability. I think that is a little bit more fair about that analysis.

Another thing about AB2774 is that it does provide this opportunity to have a dialog regarding the allegations the division is making regarding the citation, prior to it being issued. Obviously, there are some circumstances, with my attorney hat on, I say you may not want to respond to those because there is no penalty for waiting to respond at hearing.

But I’ve had a handful of them that I have dealt with for clients where we responded and chosen not to respond. But where we did respond, when it was the right facts and circumstances, there was a reduction from a serious down to a general. And in one case they dropped it after they really found information and facts they had not found in their investigation that we were able to provide to them in the questionnaire, Form 1BY that was born out of AB2774.

I know the jury is still out on how well it is going to work, how much it is going to change the serious violations issued or how it is going to change communication, but I definitely think it has gone a ways. It is proving to be working so far.

 

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?

That’s my mantra. To me, it is almost a burden on the resources, [if] say you have two employers right next to each other. They may have something very, very minor, or an argument of whether they arecompliant or not, and it is a close question. Maybe the wording on one of their IIPPs the inspector doesn’t think is compliant, but maybe at the end of the day it could be.

Maybe it would be better served to say here is how I would change it. I am not going to issue a citation and go next door to a person who has a four-story building that has no fall protection on it. To me the focus should be more on compliance. The ones that are substantially compliant, compliment them and give them some suggestions where you could see things changed a little and get on to the bad guys. The underground economy is affecting everybody. If someone is building a five-story building without fall protection and you’re doing it right, it can be a difference of hundreds of thousands of dollars. So the focus really needs to be on compliance.

 

What should Cal/OSHA do to help small employers create safe workplaces and comply with Title 8 regulations?

I think there are some things California is doing. Whenever we are developing new regulations, I keep going back to this, the residential fall protection was written so that whether you are a sophisticated employer building 20,000 homes a year or one that builds one home a year, you can understand what it means and comply with it.

Understand what compliance is and enforcement looks and says they are in compliance. I think the more plain language, practical regulations we draft when we do have new regulations the better. The communication, like the heat illness outreach, I think is very helpful to small employers. Those types of outreach go a long way.

 

What about safety do employers struggle with the most?
I don’t know if this is directly on point. I’ll give an example. You have an employer, and we’ll use heat illness as an example. They have got their shade up. They have got their water. You talk to employees. They all understand what’s going on. They have all been trained. But then when you look at the written program; it doesn’t have the 85-degree trigger. So some of the little nuances that need to be in writing, but the compliance is occurring in the field. I think sometimes getting the documents in place can be a struggle.

Then you have the reverse. You have people with perfect paperwork, but they don’t apply it out there, right? Regulations are always changing every year. And keeping up with what’s changing and what’s happening at the regulatory level in safety is probably always a challenge for any employer.


Are there reliable and knowledgeable training people available?

Oh yeah, I think there are lots of viable training companies that do a great job. On occasion I will have an employer who is looking for someone who trains in a particular area and I will refer them to one of my colleagues. There are a lot of good ones. Like a lot of industries, I am sure there are some that are not so good. But for the most part, the ones that I’ve dealt with are absolutely top shelf.

 

What kind of training is the most crucial for employers to provide?

The reality is it depends on what industry you’re in. You’ve got to know what your operation is, and your hazards are. You have to make a determination from that standpoint. Aside from that reality, my background, I grew up as an ironworker in the field. It is hard to replace in the field, what I’ll call on-the-job training. You can do all the classroom and document training in the world, but until you are out in the field and it is being applied I think it is hard to replace that.

You can have someone who has been doing something for 20 years, but if you don’t have documents showing that he actually sat in a classroom and been trained – I’m being a little bit sarcastic – it’s almost like they would rather see someone who has this document that says I have been through this class and met training requirements. Rather than “I have been in this business for 20 years, but I don’t have a certificate to show it.”

 

What else do you read to get your occupational safety and health information?

My number one resource is “Cal/OSHA Reporter.” I would say that whether it was you guys or not. When I was an ironworker, I have all my old apprenticeship training books that have a lot of safety stuff in it. I’ll dig them out when I have an issue that deals with structural steel safety, to remind myself. We developed a lot of different training material. There is a lot of information out there.

 

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?

I was around it part of my entire adult life. Building high-rises and being an ironworker, safety was paramount to my survival. I actually had a workplace injury in 1990 and went to work for a company that did Cal/OSHA certifications.

We were Cal/OSHA crane certifications. I got more and more involved in the Cal/OSHA stuff. There was something in the back of my mind; lots of times what would happen on the jobsite when I was an ironworker, a management person would be telling me this is safer or that is safer. They had never done what I was doing. I thought it would be nice if they had practical experience. I thought it would be nice coupling practical experience with the Cal/OSHA with the crane company and with the legal experience to kind of have three sides of it, and have the management experience on top of it and put that all together and create my Cal/OSHA practice. It has proven to be pretty effective. It is one thing to see something in black and white on a piece of paper and another thing to realize how it applies when you’re actually, physically on the site trying to do what the intent of that written regulation is. Sometimes it doesn’t fit together as nicely as people would like.

 

 What’s interesting about it now?

I think it is rewarding. You’re helping people. The folks I work with at the division and my clients are all great folks that are interested in the right direction. My employer clients want what’s in the best interest of their employees and create a safe environment and go home to their families every day, which I think is the right idea. And the division, a lot of the folks I work with over there have a passion for safety and making sure people are taken care of at the end of the day.

I think what is interesting about it is that it is ever evolving. On the rulemaking side of my practice, where I work in the development of regulations, it is kind of exciting to see how do we put this in written form, in regulatory form, when you read it makes sense. When a foreman or frontline person reads it, they say, “I understand what they want me to do here.” And it can still pass the scrutiny so that it is written in a way that it is still enforceable. That is a huge challenge.

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