Editor’s Note – Mark Lies II is a labor and employment law attorney and partner with the Chicago, IL, law firm of Seyfarth Shaw. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
As all employers should be aware, the Occupational Safety and Health Administration (OSHA) has the authority to issue a range of citations if it believes that the employer has violated specific regulations relating to certain hazards (e.g., lockout/tagout, confined space, emergency action plan, etc.), or utilize the General Duty Clause if there is a “recognized hazard” likely to cause serious injury or death and the agency does not have a specific regulation that applies.
Violation
In order to prove a basic violation, the agency must prove that:
• A standard applies to the hazard (or the hazard is “recognized” by the employer or its industry);
• The employer failed to comply with the terms of the standard;
• An employee had access to the cited hazard; and
• The employer knew, or with the exercise of diligence, could have known of the violative condition.
If the agency can establish these four elements, then there is a basis for a citation.
Serious Versus Willful Violation
The problem that arises, once the agency can establish the four elements described above for a valid citation, is what “classification” should be assigned to the citation. This distinction can have a significant liability impact on the employer and individual managers.
In order to prove either a “serious” or “willful” violation, OSHA must demonstrate that the employer knew or should have known of the hazardous condition. At this point, however, the state of mind of the employer becomes the determining factor in whether the citation is properly classified as “serious” or “willful,” as follows:
• A serious violation can be based upon the employer’s mere negligence or lack of diligence in permitting the hazardous condition to exist.
• A willful violation requires more than mere negligence or carelessness, rather, there must be intentional or conscious disregard by the employer for the applicable safety standard or for employee safety.
Many times the agency blurs this crucial distinction and issues a “willful” violation, when the violation was due to negligence or carelessness. This can have significant impact on the employer since a willful violation can result in:
• Significant monetary penalties (up to $70,000 per willful violation, while serious violations carry a maximum of $7,000 per violation);
• Potential criminal liability under the OSHA law for the employer or individual managers if there has been a fatality;
• Potential for the injured employee to avoid workers’ compensation based upon a claim that the willful violation, if admissible, establishes an intentional injury;
• Potential for significant civil damages if the injured employee is that of another employer and the workers’ compensation limitations on damages do not apply.
OSHA Burden
In a recent decision, American Wrecking Corporation v. Secretary of Labor, U.S. Court of Appeals, District of Columbia Circuit (December 19, 2003), the court clarified this issue in a manner favorable to employers. The underlying case involved an accident at a demolition site where certain bricks left on the upper portion of a wall of a building by the employer fell on an employee who was later performing work beneath the area where the bricks were located. The employer contended that the bricks did not present a safety hazard. The employer received a willful citation because the agency claimed the employer “should have known” that the bricks presented a hazardous condition.
The administrative law judge reasoned that the unsafe condition of the bricks was “so obvious” that the employer’s belief they were safe was unreasonable and the violation was therefore willful.
The appeals court rejected this reasoning and reversed the finding of willfulness, holding that OSHA must prove that the employer had a “heightened awareness of the hazard” and, more importantly, the employer must have “actual knowledge” that the conditions violate the statute or regulations. Since the demolition company did not have this “actual knowledge” there was no basis for the willful violation.
Recommendations
In order for an employer to be able to avoid liability for willful violations (and their negative consequences discussed above), it must focus on the ability to show no “actual knowledge” of a safety hazard to its employees.
This can be done by taking action that will allow the employer to exhibit a good faith effort to comply with the standard or to eliminate the hazard, including:
• Conducting a hazard assessment to identify the hazard(s) at the worksite;
• Preparing written safety programs addressing the hazards;
• Ensuring that employees are trained and that training is documented;
• Conducting walk-arounds to identify hazards and documenting corrective action;
• Issuing and documenting disciplinary action if a hazard is due to employee violation of a safety rule.
If the foregoing steps are taken, no reasonable employer will have to face the potential for willful violations.
Labor and the Law - October 2004 Render