Court Decisions Lower Bar for OSHA to Prove Willful Violations

Court decisions lower bar for

OSHA to prove willful violations

By Micheal D. Hahn

Recent decisions from the 7th Circuit - which covers Illinois, Indiana, and Wisconsin - have drastically lowered the burden required for OSHA to prove a willful violation of the Occupational Safety and Health Act (OSH Act).

In the past, the burden was quite high: OSHA had to prove almost intentional conduct by the employer. That has changed significantly within the last year, thanks to two opinions from the 7th Circuit. It’s important to be aware of these decisions because the penalty for a willful violation is 10 times the penalty for a serious one.

The old willful standard: A high burden for OSHA

OSHA can assess four types of penalties for violations of the OSH Act: (1) other than serious, (2) serious, (3) repeat, and (4) willful. A willful citation can result in a fine up to $70,000; that amount is set to increase to a maximum of $126,000 on August 1, 2016. The maximum fine for a willful citation is 10 times the fine for a serious citation.

The provision of the U.S. Code that establishes willful violations does not define the term “willful.” Instead, it simply states that “any employer who willfully . . . violates the requirements [of the OSH Act] may be assessed a civil penalty” of up to $70,000. Because the statute doesn’t specify what willful means, it has been left to the courts to flesh out the definition of that term.

Until last year, OSHA needed to prove that an employer accused of a willful violation acted with “intentional disregard of, or plain indifference to, the requirements of the [OSH Act].” That very high standard basically meant that a violation was willful if the employer was informed about the violation and continued to conduct operations without correcting the violation. The D.C. Circuit summarized the case law in a 2012 decision when it stated: “It takes a lot to be plainly indifferent.”

A new standard lowers the bar for OSHA

The “plain indifference” standard for willful violations changed dramatically for Wisconsin employers when the 7th Circuit decided Dukane Precast, Inc. v. Perez in May 2015. InDukane, the court reviewed a case in which an employee got caught in a cement auger that was used to store sand. The employee had been cleaning the sides of the auger, the sand underneath him gave way, and he became trapped in the sand. Luckily, other employees heard him yell for help and began to dig him out.

The plant manager was notified right away, but after seeing that coworkers were helping the trapped employee, he assumed that there was no immediate danger and didn’t call 911. It wasn’t until it became clear that employees couldn’t rescue the trapped employee that someone called 911.

The employee was freed from the auger after being stuck more than 5 hours. OSHA inspected the plant the next day and assessed four different violations, including a willful violation of its permit-required confined space standard. On appeal, Dukane challenged OSHA’s categorization of the violation as willful.

The 7th Circuit reviewed the case law and determined that the old standard didn’t adequately define “willful” for purposes of the OSHA regulations. The court seemed to be concerned that the old standard put too high a burden on OSHA and conflated willful in the civil context with willful in the criminal context.

The court explained that in the civil context, which includes OSHA violations, “proof of willfulness . . . requires proof only that the [employer] was aware of the risk, knew that it was serious, and knew that [it] could take effective measures to avoid [the risk], but did not.” The court explained that definition “clarifies” the definition of willful. What the court left unsaid was that it also lowers the burden for OSHA.

The old standard required an element of intent or knowledge on the part of the employer, but the new standard doesn’t. Rather than prove that the employer “would not care” about a violation, OSHA now needs to only prove that the employer failed to act.

The effect of the new standard is apparent in Stark Excavating, Inc. v. Perez, a recent decision in which 7th Circuit reaffirmed its new willful standard and upheld a willful violation against Stark Excavating for failing to comply with OSHA’s cave-in protection standards.

A foreman for Stark failed to properly slope the sides of a trench in accordance with OSHA standards. The standards required a 45-degree slope for the type of soil that was present, but the actual slopes were closer to 60 or 80 degrees. The court upheld the willful citation primarily based on evidence that the foreman had filled out a daily report indicating the soil type but failed to note the slope of the sides of the trench, and it was “readily apparent” that the slopes were incorrect.

In its defense, Stark provided evidence that it had a safety program, trained its employees, conducted regular inspections, and enforced compliance with safety standards. In the past, that type of evidence was usually enough to defeat a willful violation.

Typically, evidence that an employer attempted to eliminate a hazard, even if those efforts were unsuccessful, was enough to negate a willful violation. However, after Stark Excavating, that no longer appears to be the case. Instead, the fact that an employer was aware - or should have been aware - of an “obvious danger” but failed to act now appears to be enough to meet the standard for a willful violation in the 7th Circuit.

Bottom line

The 7th Circuit’s new standard for willful violations dramatically lowers the burden on OSHA. Simply failing to act when a danger should be obvious may be enough for an employer to be hit with up to $126,000 in penalties.

Going forward, you cannot just assume that your safety programs are enough to save your company from a willful violation. Instead, if you see a potentially dangerous situation, you need to take steps to ensure you are following the right standard. Anything less may result in a willful violation.

Micheal D. Hahn, a contributor to the Wisconsin Employment Law Letter, can be reached at 608-260-2483 or mhahn@axley.com.

*disclaimer: a previous version of this article ran in the Wisconsin Employment Law Letter