Is that a Willful Violation?

 

Employers are uncertain about the difference between a “Willful” classification and a “serious” classification of an OSHA citation.  I confess that I sometimes struggle to understand the basis for a particular Area Office or Judge’s decision.

 First, a basic definition from the OSHA Field Operations Manual:

 A willful violation exists under the Act where an employer has demonstrated either an intentional disregard for the requirements of the Act or a plain indifference to employee safety and health.

 This definition seems fairly straightforward, but I’d encourage you to visit  FOM, page 4-28 and review the full discussion of what may constitute a willful violation.

 Since the definition may tend to vary a bit depending on the current make-up of the Occupational Safety & Review Commission, let’s review a recent decision.

In Secretary v. Elliot Construction, the Commission reversed the ALJ’s finding that two violations for overexposure to carbon monoxide (CO) were not willful, and affirmed another willful violation that the ALJ had vacated. Ouch.

 The concrete contractor, used gasoline powered machines to pour and smooth concrete inside a building, which is not an unusual application. The foreman anticipated that CO from the machines’ exhaust and set up fans to ventilate the space. At various times, employees reported feeling ill. The foreman sent these employees outside, but did not stop the work. Then, the employer’s safety consultant happened to visit the work site, and advised that CO overexposure was probably occurring. the supervisor seemed unconcerned, so the consultant  contacted emergency response.  Two employees were diagnosed with CO poisoning.

OSHA cited the employer for willful violations – failure to conduct air monitoring, for exposing employees to CO levels above the PEL, and for the failure to implement administrative and engineering controls.

 The ALJ dismissed the first item, affirmed the violation for overexposure of employees to CO,  but found that the employer did not act willfully.

The Commission reversed on the inspection violation, accepting the Secretary’s argument that 1926.20(b)(2) broadly requires the employer to inspect the workplace for hazards, and in this case, air monitoring was necessary  because air monitoring was the only way to determine whether CO emissions exceeded the PEL.

The Commission also rejected the ALJ’s finding that  the violations for overexposure to CO and the failure to use engineering controls were not willful.

The Commission found that the supervisor’s state of mind was sufficient to impute willfulness to the employer, and the company’s past history with CO exposures and knowledge about monitoring devices precluded a good faith defense.

Note that an individual supervisor, as agent of the employer, committed the contractor’s willful acts.  It was not necessary that a corporate intent be shown.  Just one really bad episode of poor judgment by a supervisor.

Next time, we’ll discuss a bit more complicated set of facts, Dayton Tire.

 

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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