Words: Michael Oesterle and Marykate Williams, King & Ballow
Photos: DenGuy, King & Ballow
Willful violations of the Occupational Safety and Health Act of 1970 (“OSH Act” or the “Act”) may result in civil and criminal consequences, including significant fines. As of January 17, 2023, the maximum Occupational Safety and Health Administration (“OSHA”) civil penalty for willful or repeated violations has increased to $156,259 per violation. Understanding the key components of a willful violation will help employers protect the safety of their workers and reduce the risk of potential costly penalties for their business.
What is considered a willful violation?
A violation of the Act is willful when it is determined that an employer intentionally, knowingly, or voluntarily disregarded requirements under OSH Act or a standard, or when it is determined that an employer demonstrated plain indifference to employee safety. The employer’s state of mind is key to the question of whether a willful violation occurred.
The knowledge of a supervisor, safety director, or other person responsible for OSH Act compliance may be imputed to the employer to sustain a willful violation of the Act. Employers should be aware that foremen or crew members who supervise other employees on a job site, even temporarily, may qualify as supervisors even though they have not been formally designated as supervisors by the Company. For this reason, it is important for employers to ensure all employees receive proper safety training on a regular basis, which includes clear instructions on protocols for reporting and remediating unsafe conditions on the job site.
A willful violation will not be found when it is determined that an employer had knowledge of a violation and in good faith unsuccessfully attempted to remediate the violative condition. Purposefully neglecting to discover unsafe conditions at a job site will not shield an employer from liability. It may also be determined that the employer had the knowledge required for a willful violation where that employer was previously cited for a similar OSH Act violation.
What are examples of willful violations?
Some examples of potential willful violations are provided below. Note the employers’ state of mind in each of the examples below:
- Ignoring employees’ requests for safety equipment
- Requiring employees to work in dangerous proximity to potentially hazardous energy sources
- Failing to require employees to use fall protection
- Failing to properly record work-related injuries for a significant period of time
- Failing to design formwork to withstand vertical and lateral loads from wind gusts
Let us assume for illustrative purposes only that the employer designed the system and instructed the employee depicted in the following picture to perform this concrete work which is six stories above ground. The employer walks away while the work is performed.
Responding to OSHA Investigation
Employers should contact their Company’s legal counsel immediately and, if possible, before OSHA begins its investigation. As part of its investigation, OSHA may conduct an inspection of the job site, conduct interviews, or obtain statements or affidavits of workers with knowledge or information relating to an alleged willful violation. A Company representative should accompany and supervise all aspects of an OSHA investigation. Depending on the circumstances, employers may also consider engaging an expert to accompany the OSHA inspector during the walk-around part of an inspection and, if appropriate, conduct side-by-side testing.
Employers are encouraged to have a Company representative present during any interview or statement of a supervisor taken during an OSHA investigation. A Company representative is generally not entitled to be present during an interview or statement of a non-supervisory employee. Besides providing moral support, the Company representative should make sure that all questions are asked clearly and correctly answered.
Mitigating Penalties for Willful Violations
Upon receipt of a citation for a willful violation, the Company should request an Informal Settlement Conference with OSHA to discuss the citation. This request shall not operate as a stay of the deadline to file a Notice of Contest, which must be filed with OSHA by the Company within fifteen (15) working days of receipt of a citation. The Company should obtain a detailed explanation of the cited violations including the factual and legal basis for the citation. In most cases, a reduction of the assessed penalty or a modification of the abatement can be obtained at the Informal Settlement Conference. The Company may also present exculpatory evidence at the conference, which may aid in vacating the citation or reducing the penalty.
It is important for employers to carefully evaluate internal safety policies and training provided to their supervisors and employees on a regular basis to not only prioritize the safety of their workers, but to help avoid potentially costly penalties for willful violations. Employers should consider referring their Company safety policies and training protocols for an external review to ensure compliance with OSH Act and other industry standards. The employer must monitor employee and supervisor compliance with its safety rules and the OSHA standards and take immediate remedial action in circumstances of non-compliance, including discipline up to discharge. Failure to do so not only precludes a potential defense of unpreventable employee misconduct, but can be used as evidence of plain indifference. Perhaps most importantly, employers should consult legal counsel as early as possible to assist their Company with responding to inquiries from OSHA and the issuance of any citations, and especially citations for alleged willful violations.
About the Authors
Michael Oesterle is a partner with the law firm of King & Ballow in Nashville, Tennessee. You may reach Mr. Oesterle at (615) 726-5496 or at email@example.com. Marykate Williams, an associate with King & Ballow, also participated in preparing this contribution to MASONRY Magazine. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.