There are two documents you need to take advantage of OSHA rules allowing you to withhold documents and materials containing trade secrets from inspectors: a set of instructions telling employees how to request trade secret protection and an actual request form to submit to OSHA. We discussed the former in Part 2. Let's wrap up the series with a discussion of the latter. There's also a model notice in TOOLS.

How to Create a Trade Secret Protection Request Form

As ever, we remind you to beware of using off-the-shelf forms. Model forms are valuable as a baseline or starting point that you can adapt based on your own circumstances. Like the model in TOOLS, make sure your notice contains the following key elements:

Citation of Legal Authority: Although it's not specifically required, lawyers recommend that you cite the part of the law (Section 15 of the Occupational Safety and Health Act (the Act)) that gives you the right to request protection of trade secrets divulged during OSHA inspections. This underlines the authority of the request and shows that you're serious about asserting your rights and protections under the Act.

Statement of Request: Make sure the Notice specifies that you're seeking legal protection of trade secrets under the Act.

Itemization of Trade Secrets: Leave spaces for staff members to list the items of proprietary information you claim are trade secrets entitled to protection. Make sure staffers fill each item in before the Notice form is signed and dated.

Conclusion

The risk of citations is just part of what you need to worry about when OSHA inspectors show up at your door. OSHA inspectors have broad powers including the authority to access to a wide array of company records. And once OSHA gets its hands on these records, they become part of the public domain and are at risk of disclosure. Implementing the strategy set out in this series should help you manage this risk and ensure that an OSHA inspection doesn't compromise your company's trade secrets.

THE CANADIAN PERSPECTIVE

The principles of this article are also relevant in Canada. But the rules for protecting trade secrets vary. So you'll have to adapt the Model Notice in TOOLS in accordance with the requirements of your own province. As noted last week, the best way to determine what your province requires is to go to the OHS agency website and search for "trade secrets."

And, in the interest of equal time, the article below addresses a matter of Canadian law.

OHS QUIZ

Click on www.safetycomplianceinsider.com for more quizzes and other valuable Canadian compliance materials.

Which Law Applies When Provincial Companies Work on Federal Lands?

By Glenn Demby

An airport authority for a major airport in Quebec hires a local construction company to repave runways. The contractor and its workers are subject to the OHS laws of Quebec. The airport authority is federally regulated and subject to the Canadian Labour Code. One of the construction company's workers refuses to wear an orange safety vest while working at night. Quebec OHS laws make it mandatory to wear the vest; but federal laws don't.

QUESTION

Does the worker have to obey the Quebec law and wear the vest?

A. Yes, because provincial OHS laws apply

B. No, because provincial OHS laws don't apply to work done on Crown lands

C. Yes, assuming that the contractor has control over the work and how it's performed

D. No, because, technically, workers on Crown lands are considered employees of the federal government

ANSWER

A. The worker would have to wear the vest because provincial and not federal laws apply to workers of provincially-regulated companies even when they perform work on federal lands.

EXPLANATION

This situation is based on the facts of a real dispute that one of our members is having with its workers. Nor did we make up the answer. It comes right from the Supreme Court of Canada. In the case, workers from a Quebec company claimed they were entitled to higher minimum wages provided under federal law while working at an airport. The Court rejected their argument. Since the workers worked for a Quebec company, the minimum wage laws of Quebec applied even when they were working on Crown lands [Quebec Minimum Wage Commission v. Construction Montcalm Inc., [1979] 1 S.C.R. 754]. Although it's an old case, Montcalm remains the law in Canada today.

WHY WRONG ANSWERS ARE WRONG

B is wrong because legal rights and duties of workers under provincial employment, labour and OHS laws don't give way to federal laws when work is done on federal lands. According to the Court, "federal Crown lands do not constitute an extra-territorial enclave within provincial boundaries."

C is wrong even though it sounds right. Control over work is often a major factor in disputes between contractors and owners over liability for safety. The general rule: Whoever has control over the work has responsibility for ensuring that it's done safely. But the issue in this case isn't responsibility for safety but which law determines what the safety standards should be. If you were shrewd enough to understand this, congratulations. You've got the makings of a strong legal mind!

D is wrong because workers from provincially-regulated companies don't become federal employees when they work on federal lands.

WANT MORE QUIZZES LIKE THIS?

Go to www.safetycomplianceinsider.com and check out the TEST YOUR OHS I.Q. section. If you're a subscriber to Safety Compliance Insider, you'll get full access to the quiz. If you're not, you'll get instructions on how to sign up and get access to the quizzes and lots more good stuff on compliance.

Story Tools:  E-mail this to a friend  Print This Post Top