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Labor & Employment Legal Alert
October 3, 2014              

By Benjamin J. Kim in Daily Journal

Filmmakers must mind workplace safety, too

A movie production company's legal woes stemming from an accident during filming raises several important considerations regarding workplace safety and health regulations for the entertainment industry.

Recently, the U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) issued citations against Film Allman LLC after investigating a Feb. 20, 2014, accident near Jesup, Ga., that caused the death of a camera assistant and injuries to several other workers. The employees had been filming a movie scene for "Midnight Rider" on the railroad tracks of a train trestle when a train came through those tracks.

After the accident, OSHA cited Pasadena-based Film Allman for two violations — one willful violation for allegedly failing to have any safety procedures and another two-part serious citation for allegedly exposing employees to fall hazards. Film Allman has contested the citations and perhaps only time will tell whether OSHA has sufficient evidence to prove the citations and whether the production company will be able to establish any defenses. In the meantime, local prosecutors in Wayne County, Ga., have charged the director, the assistant director, and two producers with crimes including involuntary manslaughter and criminal trespassing, and these individuals also face potential civil liability.

Awareness of Which OSHA Laws Apply

The accident and ensuing legal problems highlight the importance of understanding the state or federal safety regulations that affect entertainment projects throughout the country. Under the Occupational Safety and Health Act of 1970 (OSH Act), OSHA generally enforces workplace safety and health regulations, but states are permitted to implement and police their own safety and health laws (also known as "state plans"), subject to approval by the secretary of labor. These state plans, however, must be at least "as effective as" the federal program and must meet various other requirements. See 29 U.S.C. Section 667(c). Currently, 27 states have their own approved state plans, and they continue to be monitored by federal OSHA. Many of these states have patterned their occupational safety and health laws after the federal regulations, but differences do exist between states.

Some states like California, where many entertainment companies are based and do business, have implemented workplace safety and health regulations that in many ways are more stringent and broader than federal regulations. California companies, however, should not assume that compliance with California workplace safety and health regulations will satisfy federal regulations or another state's laws. Analyzing and understanding these laws is particularly important when a company like Film Allman decides to do business in another state or in multiple states. When filming or producing media , it is important to understand which set of workplace safety and health regulations apply and to ensure compliance with those applicable standards.

Potentially Targeted Companies

While it appears that OSHA has cited only Film Allman for the accident, entertainment companies nonetheless should be aware that OSHA liability can extend beyond the "employer" in the traditional sense. According to OSHA's Multi-Employer Citation Policy, OSHA can target a company if it falls into one of four categories of "employers."

  1. Exposing Employer. The exposing employer is the entity whose own employees are exposed to the hazard. This category includes the traditional employment relationship between a company and its employees.
  2. Creating Employer. The creating employer causes a hazardous condition that violates an OSHA standard.
  3. Correcting Employer. The correcting employer is the entity in a common undertaking, on the same worksite, as the exposing employer and is responsible for correcting a hazard.
  4. Controlling Employer. The controlling employer has "general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them." This control may arise from a contract or by practice.

Notably, although OSHA uses the word "employer" when describing these categories, the OSH Act defines "employer" to mean "a person engaged in a business affecting commerce who has employees, but does not include the United States or any State or political subdivision of a State." 29 U.S.C Section 652(5). There are nuances to each of the above categories, but importantly, a company can fit into multiple categories and can be a target of OSHA citations even if its own employees are not exposed to the hazard. In California, the Legislature generally codified similar multi-employer worksite definitions in California Labor Code Section 6400.
For these reasons, an entertainment company should not assume merely that the production company or another entity handling some aspect of the production will ensure compliance with workplace safety and health regulations. Unless there are contractual obligations to the contrary, an entertainment company working on any aspect of a production should take reasonable steps to ensure compliance with applicable workplace safety and health regulations.

OSHA Violations Are Not Trivial

In addition to significant fines, OSHA can seek an order from a federal court to shut down filming or a production if it believes the operation would create an imminent danger to workers. See 29 U.S.C. Section 662. California's OSHA equivalent can issue an "order prohibiting use" without court approval, though employers can request a hearing with within 24 hours to challenge the order. See Cal. Lab. Code Sections 6325, 6327.

Moreover, an employer and its managers may be prosecuted for criminal conduct. In addition to the traditional types of criminal charges brought by Wayne County as a result of the Film Allman accident, a failure to abide by workplace safety and health regulations can lead to other types of criminal liability. Under the OSH Act, a willful violation of an OSHA regulation causing death is punishable by a fine of up to $10,000 and/or imprisonment up to six months for first offenses. See 29 U.S.C. Section 666(e). States also may have similar laws. In California, for example, a willful violation of a state workplace safety and health regulation causing death or permanent or prolonged body impairment will result, for first time offenses, in criminal fines against the company of up to $1.5 million and against individual managers for criminal fines up to $250,000 and/or a prison term of up to three years. See Cal. Lab. Code Section 6425(a).

Because of these high stakes, companies (large and small) in all aspects of the entertainment industry should take steps to ensure compliance with applicable workplace safety and health regulations.

 

Posted with permission.

Benjamin J. Kim Benjamin J. Kim
Partner
Labor & Employment | Class Actions | Entertainment & Media
Los Angeles
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