By: Thomas H. Welby Published: April 2011

Safety Policy: "Willful" OSHA Violations: Shooting Yourself in the Foot

When the OSH Act was proposed, some griped that the proposed agency would strangle American entrepreneurship, and be the death of free enterprise. The safety record of American industry was then so dismal, however, that even the rock-ribbed found themselves unable to defend the status quo. Something had to be done and, after considerable Congressional horse-trading, OSHA was born.

While OSHA no doubt has contributed to the exodus of American manufacturing to foreign shores, in its 40-year history there has undeniably been progress made. While we certainly remain far from OSHA's goal of providing a safe and healthy workplace for every American, by now most employers have come to see employee safety and health as deserving of the expenditure of money and effort, and the necessity to comply with the OSH Act as a fact of life.

Occasionally, however, even after all these years, there appears a real "dead ender," an employer for whom defiance of OSHA standards, and exposing employees to tremendous risks of death and dismemberment, is a matter of principle, even a badge of pride.

Of the several kinds of OSHA violations, it’s the "Willful" ones you most want to avoid. While certainly an accumulation of "Serious" violations can put you out of business, the "Willful" violation carries a monetary penalty up to ten times higher than a "Serious" one, and marks the recipient as an employer guilty of "intentional, knowing or voluntary disregard for the requirements of the Act," or "plain indifference to employee safety."

Construction, we all know, is a hard, competitive, and hazardous business. The skill, efficiency and conscientiousness of its workforce is often what differentiates a contractor that succeeds from so many that do not. Whatever the inconveniences of OSHA compliance, you may be sure that they are minor next to, say, having to shut down a project, to allow for the recovery of bodies. I can't begin to imagine why any construction employer would want to be viewed, either by labor or by others in the industry, as an employer "plainly indifferent to employee safety."

I won't identify our "dead ender," except to say it was a general contractor constructing a synagogue in New England. One day, an OSHA compliance officer appeared, responding to a complaint. He observed employees working next to the walls of an excavation. The excavation ranged in depth from about 8 to 14 feet. There was no trench box, the walls of the excavation were vertical, and along the edges were spoils piles from 4 to 10 feet high.

In erecting foundation forms down in the trench, employees were working in between the forms and the wall, and on the opposite sides of the forms. If the unshored wall collapsed, an employee between the wall and the forms would be trapped and killed. An employee working on the other side of the forms would also be endangered, since a cave-in could push the forms over onto him.

The OSHA officer asked to see the man in charge, whom we’ll call "Mr. T." The C.O. ordered everyone out of the trench, and then did a walk-around of the site, accompanied by Mr. T.

During this walk-around, the C.O. identified yet additional hazards. First, almost unbelievably, no one in the excavation was wearing a hard hat.

Second, there were three uncovered and unguarded 8' square holes, each 7 feet deep, in the excavation.

Third, the two ladders affording egress from the trench were both damaged, and were 80 feet from where the employees were working, with no alternative means of egress provided.

Finally, there was unguarded protruding rebar in the excavation.

The C.O. discussed the above hazards with Mr. T., stressing, in particular, the dangers of a cave-in. Mr. T. gave assurances that he would make sure that no one else went into the excavation, and that he would correct the hazards immediately.

Upon the compliance officer's return the following day, workers were back in the trench completing the form work, and none of the violative conditions had been uncorrected. When the compliance officer approached Mr. T. and asked him for an explanation, Mr. T. refused to answer, and walked away.

The day of this second visit, the C.O. observed Mr. T. using a single plank to cross over the excavation. Subsequent visits found some hazards corrected, and others not. In addition, two conditions requiring guardrails were detected without any guardrails in place, and there was no "competent person" on site to detect and correct the hazards. Also, there was no safety plan in place for the site.

As I have stressed here before, you need to pick your fights with OSHA wisely. If you remain in business, you'll be seeing them again. It’s critical that your company be viewed as a safety-conscious employer, and while it's certainly OK to contest a citation, where reasonable grounds exist to do so, a "scorched earth" defense, and specious arguments, should be avoided.

At trial, our employer disputed (despite having told the C.O. that he was the man in charge, and contrary to the testimony of several other witnesses) that he had been in charge at the site. Not surprisingly, the Administrative Law Judge found Mr. T. to have been both the "creating" and the "controlling" employer, under the multi-employer work site doctrine.

Given the egregiousness of the violations identified upon the C.O.'s first visit, it’s astounding that Mr. T. failed to correct them promptly. Also hard to believe is that, given as a number of witnesses testified at the trial that they had warned Mr. T. about the need to slope the walls of the trench, move back the spoils piles, etc., Mr. T. insisted on proceeding to a trial in which, so far as the ALJ's decision discloses, he presented little evidence (except as to his spurious claim not to have been in charge).

It’s never good for the employer’s case when a credible, unbiased witness (a heavy equipment operator employed by the excavation sub) testifies that the job in question was "the most unsafe job he had ever worked on." Witnesses and the substance of their testimony are disclosed prior to trial: if you are going to have to meet that kind of testimony, you had better have some arrows in your quiver.

It will come as no surprise that 8 of 10 citation items against Mr. T’s company were affirmed, four of them as "Willful," and penalties totaling more than $90,000.00 were imposed.

Mr. T., frankly, is practically begging to be put out of business - if not by OSHA, then by the lawsuits that will engulf him, if and when his indifference results in catastrophe. Even if he should be so lucky as to avoid the worst, his approach is not reasonably calculated to win the extra measure of loyalty, productivity, and best workmanship from his employees.

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