Editor’s Note – Mark A. Lies II is a labor and employment law attorney and partner with the Chicago, IL, law firm of Seyfarth Shaw, LLP. He specializes in occupational safety and health law as well as related personal injury and employment law litigation.
Craig B. Simonsen is a senior paralegal with Seyfarth Shaw specializing in occupational safety and health as well as environmental law. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
One of the Occupational Safety and Health Administration’s (OSHA’s) most potent enforcement weapons is the willful citation that can carry a monetary penalty up to $70,000 per violation. If OSHA can prove that the willful violation resulted in a fatality, there is potential criminal liability. A willful violation can also impact third party liability litigation if it arose out of an accident involving personal injury, as well as the employer’s business reputation and liability insurance premiums. As a result, no employer would ever wait to receive a willful citation.
Recently, the United States Court of Appeals for the District of Columbia (DC) Circuit issued a decision that will significantly affect OSHA’s ability to issue and to prove a willful violation (Dayton Tire v. Secretary of Labor, No. 10-1362, DC Cir. March 6, 2012). The court reaffirmed that OSHA has a high evidentiary burden to establish a willful violation. In the process, the court was also very critical of the timeliness and the manner in which OSHA prosecuted the case.
In 1993, a Dayton employee died from injuries sustained when a machine activated unexpectedly. The incident prompted OSHA to send an inspector to the plant to assess Dayton’s lockout/tagout (LOTO) compliance. Based on that inspection, OSHA cited Dayton alleging 107 willful LOTO violations and proposing a penalty of about $7.5 million. Of the 107 cited violations, 98 were for failing to train individual employees to the “authorized” level. The remaining nine violations were for failing to develop adequate safety procedures for particular machines, failing to utilize LOTO procedures, failing to provide necessary locks and tags to authorized employees, and failing to conduct periodic inspections.
After a hearing before an Occupational Safety and Health Review Commission (OSHRC) administrative law judge, which included testimony from 90 witnesses over 31 days of trial, the judge issued a decision in 1997 that affirmed each violation that had not been withdrawn by OSHA. Additionally, even though the judge found that Dayton’s “actions were consistent with a good faith belief and effort to comply with the LOTO standard throughout the Oklahoma City plant,” he characterized 37 of the violations as willful because “Dayton knew its corporate parent, Bridgestone, had previously been cited under the LOTO standard for similar violations.” The judge assessed a total penalty of $518,000.
From 1997 until 2010, the case sat fully briefed before the OSHRC. Then in 2010, two members of the OSHRC not only upheld the citations, but overturned the judge and held that all of the violations were willful, with a penalty of $1.975 million. The company filed an appeal.
Circuit Court Decision
In its recent decision, the federal circuit court found that while it took the commission more than 12 years to rule on the case, Dayton was not entitled to dismissal based on the OSHRC’s failure to adjudicate the case.
“Although we are empowered to set aside the commission’s order on the basis of delay, we decline to do so here,” the court stated. “Yes, in the words of the secretary herself, the commission’s twelve-year delay was ‘excessive and deplorable.’ But as Dayton admits – and its cited cases demonstrate – delay alone is not enough; it is the ‘consequence[s] of the Commission’s delay’ that dictate whether corrective action is needed. And in this instance, the consequences of the commission’s delay do not justify setting aside its chosen penalty.” The court noted that, “While the deterrent effect of a single penalty is difficult to assess with much precision, we are confident that enforcement of this penalty will have some effect on Bridgestone and employers in general.” The court concluded, though, that, “Our willingness to enforce the commission’s penalty should not be mistaken for approval of its ‘deplorable’ conduct.”
The OSHRC in its 2010 decision found sufficient evidence to conclude that Dayton had willfully violated the Occupational Safety and Health Administration Act as a matter of corporate policy. The linchpin of the OSHRC willfulness determination was its finding that Dayton’s safety manager either knew Dayton was non-compliant or was unwilling to investigate for fear of uncovering Dayton’s non-compliance. The circuit court found that this position was based more on speculation than evidence. Accordingly, the OSHRC’s willfulness characterization did not withstand review. The court found the evidence in the record proved “negligence at most.” Specifically, the court noted that each time an issue was raised about Dayton’s compliance with the LOTO standard, the safety manager took some action. While the safety manager’s effort and analysis may not have been as thorough as the court would have hoped, the court stated that it was “not nothing.” The court explained that establishing the plain indifference necessary to support a willful violation is a high burden. The court likens the test to a lack of good faith and in rejecting the OSHRC’s decision, the court stated:
“Indeed, what the [judge] acknowledged and the commission dismissed was the possibility of good faith.” The safety manager “made some effort to ensure Dayton’s LOTO compliance, and under these circumstances, some effort is enough to save Dayton from a willfulness determination.”
The court concluded that the OSHRC “lacked substantial supporting evidence for its finding that Dayton’s violations were willful. Accordingly, we vacate that portion of the commission’s order and remand for the commission to reassess the nature of Dayton’s violations and recalculate the appropriate penalty.”
In order to avoid potential liability for willful violations, an employer should be prepared to establish that it acted in good faith – the antithesis of willful conduct. This can be done by:
• undertaking a thorough hazard assessment of the workplace;
• developing compliance programs to address such hazards;
• conducting and documenting training of employees regarding such programs; and
• enforcing compliance with documented discipline up to and including termination for violations.
August 2012 RENDER | back