Problem
Alliswell is a private gated community in the city of Oshiana, which is the largest city in a U.S. state. Alliswell spans several blocks in the western section of Oshiana and is home to more than 4,000 families. Its residents include world-famous entertainers and celebrities, real estate developers, CEOs, people in the finance industry, and other wealthy individuals.
Alliswell is protected by the Alliswell Security Agency ("ASA"), a full-fledged law enforcement agency and one of the largest private police forces in the world. The city of Oshiana has one of the highest rates of property crime in the nation. While neighborhoods close to Alliswell have experienced increasing numbers of robberies and burglaries, Alliswell has remained unscathed.
ASA routinely conducted voluntary audits of its internal operations and the performance of its officers. In 2019, the president of Alliswell's homeowners' association asked Chief Richard Tator whether ASA provided enough safety equipment to officers to comply with OSHA standards. Chief Tator hired a consultant to complete ASA's yearly self-audit and look into this issue. Chief Tator believed that he was competent enough to handle the self-audit on his own and that he did not need to contact outside counsel. The safety consultant planned her own information gathering process, including following the officers and capturing information about their day-to-day work, particularly on nighttime patrols when criminal activity was highest in the area. The consultant provided Tator a complete report of her findings. Neither the consultant nor Tator ever shared the report or discussed the findings in the report with outside counsel.
In February 2020, T.C. Holloway, a deputy chief of ASA, read police briefings that the Oshiana city police provided to ASA. The report described a spike in attempted burglaries and homicides in an upper-class neighborhood about two miles from Alliswell over the past month. T.C. Holloway recommended to Chief Tator that the officers be outfitted with bulletproof vests to deal with the increased risk of violent crime near and in Alliswell. Despite having read the briefings as well, Chief Tator made light of the issue: "T.C., these are the richest people in America. People are too scared to come in and hurt or rob them. Besides, the board has reduced our $20 million budget by $1,000. There is no way we can afford bulletproof vests." After witnessing an ASA officer wrestle away a gun from a would-be assailant outside the west entrance to Alliswell, Holloway reported his concern to the Occupational Safety and Health Administration ("OSHA"). A junior officer who wanted a promotion to Holloway's position informed Tator that Holloway was the source of the OSHA complaint. The following day, Tator fired Holloway, claiming that Holloway had "failed to ensure officers made proper use of their protective gear."
The following week, an OSHA Compliance Safety and Health Officer ("CSHO") arrived at ASA's headquarters. She presented her credentials and explained that she had come to perform an inspection of ASA's protective equipment and to ride on nighttime patrols with officers. Chief Tator believed that the inspection was unnecessary and that it would burden officers to have an OSHA investigator tracking them. He also wanted to protect ASA's reputation in the community and hide the complaint from the homeowners' association. However, he thought he had to comply and could not refuse to let the inspector proceed. Despite his misgivings, he stepped aside and let the investigation go forward.
On the night of March 20, 2020, Jackie Dole Sherrill, a guard for ASA, was shot and killed by an armed burglar during a burglary of the home of an Alliswell resident, along with a father of a family of four who lived in the home. The burglar, Bilbo Barnett, was a 25-year retired Oshiana police officer who was familiar with the guard stations around Alliswell and routes in and out of the community. Sherrill was not wearing a bulletproof vest at the time. Barnett shot Sherrill at least twice in the chest with a high-powered rifle, and she died due to the bullet wounds to her torso.
Despite the fact that ASA did not report Sherrill's death for 72 hours, OSHA immediately arrived to investigate her death. During the investigation, OSHA demanded a copy of the internal audit report which ASA commissioned in 2019. OSHA issued a citation alleging that ASA had failed to provide personal protective equipment to Officer Sherrill. OSHA charged ASA with a willful violation of 29 C.F.R. § 1910.132(a) and imposed a $125,000 penalty. OSHA's reason for the citation included a failure to timely address the audit findings regarding the dearth of protective equipment ASA provided Sherrill and others.
ASA provides a 35% reduction in health insurance premiums for all officers who complete mental health screenings every six months. To be eligible for the reward, officers must show improved results on biometric screenings for signs of stress, including heart and blood pressure rates, and meet certain benchmarks on tests designed to measure levels of post-traumatic stress disorder ("PTSD"). Due to the stressful nature of their jobs, with constant threats on the lives of one or more Alliswell residents, Chief Tator has remained firm that ASA will not offer any method of obtaining the 35% reduction other than meeting these standards. In fact, Officer Will B. Placid approached Chief Tator and asked for an alternative option for meeting the standard. Officer Placid disclosed that he was undergoing treatment for PTSD with a therapist and he had received an at-risk rating at his last screening. Placid offered to meet with a health coach in addition to continuing therapy as an alternate way to qualify for the reduction. The chief flatly refused. ASA officers are not made aware that the data from the mental health screening is provided to the five deputy chiefs who run ASA as well as any member of the executive board of the Alliswell homeowners' association, and that they use the data to determine raises and promotions, and to support terminations based on "mental health risk factors."
Task
I. What are any violations of law you believe Chief Tator and ASA may have committed in connection with ASA's mental health wellness program, OSHA's inspection in response to Holloway's complaint, and Sherrill's death? Describe each violation specifically and cite to authority to support it.
II. Provide any examples of any counterarguments or available defenses you believe that ASA may have for each of the violations that you allege. Cite any (i) statutes, (ii) regulations, (iii) cases, and (iv) materials read in the course in this order of priority (i.e., (i) - (iv)).
III. Provide the steps that ASA could have taken to reduce its risk for each of these violations. Provide best practices that might have (i) reduced the risk or prevented the harms to employees altogether; and (ii) protected ASA from risks affecting its organization.