Melissa A. Bailey

Shareholder Washington D.C.

Melissa Bailey focuses her practice on occupational safety and health issues, and also serves on the Firm's Board of Directors. She litigates OSHA cases before federal and state agencies and courts, and also represents employers during government inspections and investigations. Her practice also includes providing compliance advice and conducting privileged audits on complex workplace safety issues. Melissa represents employers in a wide range of industries, including electric utilities, chemical manufacturing/refining, retail, food processing, construction, and drug manufacturing. Melissa also regularly represents clients before OSHA in connection with rulemaking and policy formation. She has testified before Congress regarding OSHA issues, and has advocated for management interests with regard to OSHA enforcement and compliance policies.

Melissa has practiced occupational safety and health law for over 15 years and, as a result, she understands the legal issues as well as the practical issues confronting employers. She routinely assesses both the current and future liability that may result from significant OSHA citations, and identifies the most effective approach – whether that is a strategic settlement or litigation – in each case.

Melissa also represents clients in whistleblower matters under a broad range of statutes, including the Occupational Safety and Health Act, the Surface Transportation Assistance Act, the Toxic Substances Control Act and the Clean Air Act. Her experience ranges from conducting investigations and developing position statements to litigating whistleblower cases before Administrative Law Judges and in court.

Melissa is an active speaker on OSHA and whistleblower issues. She speaks to trade association members and clients regarding a variety of OSHA issues, including strategies to use during an OSHA inspection to minimize liability, conducting privileged audits and accident investigations, and the impact of OSHA’s regulatory and enforcement agenda on particular industries. Melissa is also the Program Chairperson of the American Bar Association Occupational Safety and Health Committee.


Experience

Melissa litigates significant OSHA enforcement matters and also represents many employers during OSHA inspections that followed fatalities or catastrophes. Her experience includes the following:

  • OSHA issued two willful citations alleging violations of the construction trenching standards, and also sent out a press release claiming that the employer was "indifferent" to the hazards faced by its employees. After significant discovery and a hearing, the Administrative Law Judge issued a decision vacating one citation and amending the other citation to reflect a serious rather than willful violation. The total penalty was reduced from $140,000 to $7000.
  • After a fatal accident, OSHA issued a citation that would have required the company and its industry to abate the alleged hazard by using a completely different type of equipment, which would have cost millions of dollars. Following the hearing, the Administrative Law Judge vacated the citation item.
  • OSHA issued significant citations and a press release, and placed the employer at issue into the Severe Violators Enforcement Program ("SVEP"). The company engaged in months of substantive settlement negotiations with OSHA, and OSHA ultimately agreed to amend the citations such that the employer was no longer included in SVEP and abatement obligations were minimized.
  • Following an amputation, Maryland Occupational Safety and Health cited a major grain handling/food processing company for violations of OSHA's Grain Handling standard. After a six-day trial, the Administrative Law Judge vacated the citations issued under the Grain Handling standard. The case was one of the first to test a controversial OSHA enforcement policy regarding the use of sweep augers in grain bins.
  • OSHA cited a large employer engaged in trimming trees and vegetation around electrical lines for a violation of the Logging standard.; The inspection resulted from an employee fatality. The company argued that the standard was inapplicable. After significant discovery, including multiple depositions, OSHA withdrew all citation items.
  • Tennessee OSHA cited a chemical manufacturing facility for multiple violations of its Process Safety Management standard after an explosion resulted in an employee fatality. Based on additional facts presented during discovery, the government withdrew all but one of the citations.
  • An employee who was terminated alleges that the employer retaliated against him for raising safety complaints under the Surface Transportation Assistance Act. Following a two-day trial, the Administrative Law Judge found that the employee was properly terminated.
  • OSHA conducted an audit of three years of injury and illness data, including OSHA 300 Logs and associated documents, for a large oil field servicing company. Although OSHA did issue citations, the company was very pro-active throughout the investigation, and as a result, liability was minimized.
  • OSHA cited an electric utility for multiple violations following an accident that resulted in two fatalities. After extensive discovery and settlement negotiations, OSHA withdrew most of the citation items and cut the penalty by almost 50 percent.
  • After an explosion that resulted in national news coverage, OSHA inspected an employer that provided industrial gases to customers. The company actively asserted its defenses during the inspection, and OSHA did not issue any citations.

Melissa has conducted accident investigations and root cause analyses under attorney-client privilege. She has also assisted clients in conducting complex industrial hygiene investigations, including two corporate-wide assessments of the risks of exposures to lead, cadmium and other health hazards.

Professional Activities and Speeches

Professional Activities:

  • National Federation of Independent Business Legal Center (Board Member, Legal Advisory Board)
  • District of Columbia Bar
  • American Bar Association (Occupational Safety and Health Subcommittee)
  • Kansas Bar Association

Speeches:

  • Food Marketing Institute - ''OSHA's Enforcement Crackdown: What does it mean for the retail grocery industry?'' - Phoenix - March 2013
  • International Oil Mill Superintendents Association - ''OSHA: The New Risk Factors'' - Okoboji - June 2012
  • National Grain and Feed Association - ''Strategies for Minimizing OSHA Liability'' - Indianapolis - June 2012
  • Ogletree Deakins Webinar - ''Safety Incentives Under Attack - Is Your Plan Vulnerable?'' - May 2012
  • American Road and Transportation Builders Association - ''DC/OSHA Update'' - Washington, DC - January 2012
  • National Grain and Feed Association - ''The New Risk Factor for Grain, Feed and Processing Facility Managers'' - San Diego - June 2011
  • Edison Electric Institute/American Gas Association - ''Employee Free Choice Act – State of Play'' - Arlington - June 15, 2010
  • Associated General Contractors - ''Pandemic Planning: Are you prepared?'' - Washington, D.C. - April 16, 2010
  • American Bar Association/OSHA Law Subcommittee - ''OSHA Update: Shoring the Foundations'' - San Diego - March 10, 2010
  • South Carolina Society for Human Resource Management - ''Preparing for the 2010 Agenda'' - Greenville - February 23, 2010
  • Organization Resource Counselors, Occupational Safety and Health Lawyers Group - ''Legislative Update'' - Washington, D.C. - November 10, 2009
  • American Gas Association Safety Leadership Summit - ''Minimizing OSHA Liability'' - Miami - November 11, 2008
  • American Bar Association Section of Labor and Employment Law - ''Occupational Safety and Health Law Fundamentals'' - Denver - September 17, 2008

Our Insights

OSHA Delays Enforcement of Anti-Retaliation Provisions

July 14, 2016

OSHA Issues New Electronic Recordkeeping Requirements and Creates a New Cause of Action for Employees

May 11, 2016

OSHA Ups the Ante for Employers That Fail to Report Workplace Injuries

April 11, 2016

OSHA's Delay in Launching Its Web Portal Raises Concerns for the Proposed Recordkeeping Rule

January 21, 2016

OSHA’s Latest Regulatory Agenda: Silica, Tree Care, Powered Industrial Trucks, Lockout/Tagout . . . and Much More

November 24, 2015

Get Ready for Monday-Morning Quarterbacking: OSHA Releases Compliance Guidance and Will Soon Finalize Electronic Recordkeeping Proposal

November 11, 2015

President Obama Signs the 2015 Budget Act Increasing OSHA Penalties

November 03, 2015

OSHA’s New Reporting Rules Are in Effect—What Will OSHA Do With the Data?

February 04, 2015

Electronic Recordkeeping: OSHA Manages to Make a Bad Proposal Even Worse

September 23, 2014

OSHA and the NLRB Offer Safety Whistleblower Plaintiffs a Second Bite of the Apple by Resurrecting Untimely Whistleblower Claims

May 28, 2014

How to Be Prepared if a Non-Employee Union Agent Shows Up with OSHA at an Inspection

May 05, 2014

OSHA Signals an Increased Focus on Hospital Industry

February 01, 2014

Safety First—What OSHA’s Newest Interpretation Means for Employers of Temporary Workers

June 20, 2013

Non-Union Employees at Worksite Safety Inspections Contradicts OSHA Regulation and Creates Host of Issues for Employers

May 03, 2013

Creepy Crawly Bedbugs—What Do They Have to Do with OSHA?

October 29, 2012

“Regulation by Shaming”—What is the Impact on the Economy? (Part 2)

July 23, 2012

“Regulation by Shaming”—What is the Impact on the Economy? (Part 1)

July 18, 2012

Published Works

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Media

Media Quotes

July 26, 2016 - SHRM Online - "OSHA Delays Controversial Anti-Retaliation Enforcement"
May 12, 2016 - Law360 - "5 Employer Worries Raised By OSHA's New Injury Rule"
March 09, 2016 - Bloomberg BNA - "OSHA Officials Stress Enforcement at ABA Meeting"

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