In today's litigious world, your risk management team must assume that any serious industrial accident is going to open the door to multiple litigation attacks. Some of the potential liabilities which you must be prepared after an employee is injured are:
Cal/OSHA citations;
Serious & Willful Misconduct claims at the Workers' Compensation Appeals Board;
Personal injury actions which may circle back to you through your contract's indemnity provisions;
State Contract License Board revocation actions; and
Criminal prosecutions of your company and one or more members of your management team.
Preparing for these challenges starts with a thorough investigation. Your management and insurance carriers will depend on your ability to conduct a competent investigation, and to set shields in place to keep what you uncover confidential.
But the ONLY way to protect your investigation and your investigators from becoming available to your adversaries is through the effective use of your legal privileges. These are:
The Attorney-Client Communication privilege; and
The Attorney Work Product privilege.
A safety professional with whom we have not yet worked recently made an off-hand comment that these legal privileges are worthless, that any "good" attorney will be able to cut through these shields and get "the goods" on your company and its people. So why bother? We don't doubt that this has been his experience. We also don't doubt that he and his clients made some fundamental mistakes in establishing these protections.
Here are just four things you can do, if you are so inclined, to make a hash of your attempts to protect your investigation:
Make a deal at the outset with the Cal/OSHA inspector to trade all information gathered, including employee statements and investigation reports. Share information often.
Don't call an attorney until well after the investigation is underway. Better yet, don't call until the investigation report, complete with a "root cause analysis", is finished and has been widely distributed.
Don't listen to the attorney's advice. Just note that you talked to him or her once. Then proceed as if he or she is not there.
Sit all employees who might know something about the event down in one room as soon as possible and discuss what happened. Then have each of them write down what they saw. Don't forget to have them put what they think caused the event. Have them sign and date their statements. Be sure to do this before you have retained an attorney.
Fred Walter will discuss these and other mistakes which can destroy your legal privileges, and how instead to maximize your protections, at the "Superheros of Safety" symposium at The SAFETY CENTER in Sacramento, California on January 23, 2008. Don't make the mistake of missing this talk.
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