By: Thomas H. Welby Published: June 2013

Safety Policy: "Willful" OSHA Violations: What They Are, and Why You Should Avoid Them

Construction employers know that most OSHA violations are classified as belonging to one of four levels of gravity: Other-Than-Serious, Serious, Repeat, and Willful. (I say "most," because there is a fifth level:de minimis violations, mere technical violations of a standard, for which monetary penalties and abatement orders are inappropriate).

What distinguishes "Serious" violations is that they involve a substantial probability of death or serious bodily harm. To sustain a "Serious" citation, the Secretary does not need to prove that an accident based on the cited hazard is likely, only that, were an accident to occur, death or serious injury would likely result. Examples of "Other-Than-Serious" violations are record-keeping violations, or a missing guardrail at a height where a fall would probably result in a mild sprain, cuts or abrasions.

In determining whether a violation is "Serious," OSHA compliance officers consider the following four elements:

  • The type of accident or health hazard exposure that the standard in question is designed to prevent;
  • The most serious injury or illness that could reasonably result from the violation of the subject standard;
  • Whether the injury or illness identified in the preceding step includes death, or serious physical harm; and
  • Whether the employer knew, or with the exercise of reasonable diligence could have known, of the hazardous condition.

"Other-Than-Serious" violations generally have no immediate impact on your ability to obtain contracts for public work. Also, although monetary penalties can be as large as for "Serious" violations, as a matter of policy, OSHA generally does not assess penalties for first-time, "Other-Than-Serious" violations by employers having fewer than ten employees, where the total number of violations is less than ten. Accordingly, often it will not be in the employer's interest to make the considerable investment necessary to contest "Other-Than-Serious" citation items.

Be aware, however, that "Other-Than-Serious" does not mean entirely inconsequential. An "Other-Than-Serious" violation that becomes a final order may later become the predicate for a "Repeat," or even a "Willful," violation.

A "Repeat" violation, although not defined in the OSH Act, is roughly what you think it is, and will subject you to enhanced penalties. Two things you ought to know are that the "Repeat" violation does not need to be of the very same standard; a prior violation of a "substantially similar" standard will suffice. Also, while older "Serious" citations may not impair your ability to get public work, there is no prescribed "lookback" period for a "Repeat" violation.

Also, while the prior violation must have become a final order to serve as the basis for a "Repeat" violation, some courts have held that citations that were settled, even where the stipulation contained exculpatory language, may qualify.

"Willful" violations, as you already know, are the most damaging, carry the highest penalties (which may include criminal sanctions) and are the most likely to impair your ability to get work, especially public work. What is it that defines a "Willful" OSHA violation?

Here again, the OSH Act fails to provide a definition, and there is still not a precise, universally-accepted formulation.

The following is, however, a working definition sufficient for nearly every case. A "Willful" OSHA violation requires, as a preliminary matter, that the cited party cited be an employer subject to the OSH Act. It involves a conscious, intentional, deliberate, voluntary decision. It differs from a "Serious" violation, in that it contains both (1) a heightened awareness of the illegality of the violative conduct or conditions; and (2) either conscious disregard for OSHA requirements, or plain indifference to employee safety.

While small differences survive among the OSH Review Commission and the courts as to the exact contours of "Willfulness," all agree that the classification requires proof that: (1) the employer knew, or should have known, that the violation existed; (2) the employer voluntarily chose not to comply with the Act by correcting the violation; and (3) that choice was made with intentional disregard for the Act's requirements, or plain indifference amounting to recklessness.

On occasion, we have thought OSHA a little too enthusiastic in characterizing violations as "Willful." However, in part because such a violation is potentially so damaging to the employer, there is usually some "pushback" where a violation has been over-charged as to degree. The Administrative Law Judges seldom hesitate to downgrade violations to "Serious," where the employer's heightened awareness, and conscious disregard or plain indifference, are not established.

For example, in Secretary v. D. W. Caldwell, Inc., the respondent was a commercial sheet metal and roofing contractor that was installing a metal roof on a large campus building in Alabama. It was cited for having employees on a steep roof whose safety harnesses were not tied off, exposing them to a fall hazard of 32 feet.

The work, the judge found, was hazardous because of the slope (5:12) and height of the roof, and numerous tripping threats (panels, boxes, ropes, drills, etc.) The ALJ was unimpressed by the foreman's claim that the crew could not use fall protection, because they could not transport the panels as required with their harnesses connected to anchor points.

Although the ALJ rejected an "unpreventable employee misconduct" defense, affirmed the violation as "Serious," and upbraided the employer for its poor judgment, he declined to find that the violation was "Willful."

In rejecting the classification of the violation as "Willful," the ALJ made extensive findings, including the following. The employer had only 15 employees. It had a written safety program which, although inadequate, was augmented by weekly safety meetings and weekly visits from the company's principal. It issued verbal warnings and filed written reprimands, as a means to enforce safety rules. Employees were provided with the necessary fall protection equipment. The foreman was experienced, and had attended OSHA's 10-hour safety program. Following inspection, the entire crew received formal, third-party fall-protection training.

The CO agreed that the crew was properly trained in fall protection, and that the employer's safety program, training, communication, and enforcement were "average." The foreman was criticized for his "unfortunate" belief that not tying off while carrying the metal panels on the roof was not a fall hazard owing to the roof's expanse, and that most work was being done near the peak. However, after inspection, the employer purchased retractable lines, allowing the employees to keep their hands free while tied off.

The CO agreed that the crew was properly trained in fall protection, and that the employer's safety program, training, communication, and enforcement were "average." The foreman was criticized for his "unfortunate" belief that not tying off while carrying the metal panels on the roof was not a fall hazard owing to the roof's expanse, and that most work was being done near the peak. However, after inspection, the employer purchased retractable lines, allowing the employees to keep their hands free while tied off.

Overall, the ALJ felt that the employer had demonstrated a good faith effort to comply with OSHA requirements, and did not merit a "Willful" violation. The penalty imposed was reduced from the $28,000 proposed by the Secretary to $6,000.

If, following an inspection, you are cited for a "Willful" violation, keep in mind the 15 working day time limitation to file a notice of contest. A "Willful" OSHA citation is a matter of the utmost urgency, and you should contact experienced OSHA counsel at once.

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