Don't Let OSHA Be Quick to Call You a "Willful" Violator

The OSH Act contains no definition of a "willful" violation, but recent decisions by a federal appeals court and the OSH Review Commission make clear that negligence is not enough.

The Occupational Safety and Health Review Commission, prodded by an emphatic decision of the U.S. Court of Appeals for the District of Columbia Circuit, has just held what should have been obvious all along that an employer who commits an OSHA violation through negligence has not committed a "willful" violation. In recent years, OSHA has alleged that violations were "willful" if the employer "should have known" that his conduct was unlawful. Decisions by the independent commission had approved of this notion. The commission's most recent decision, and the forceful language used by the D.C. Circuit, should put an end to such prosecutions and decisions.

Background

The Occupational Safety and Health Act (OSH Act) has a staggered penalty structure. For "other-than-serious" and "serious" violations, the maximum penalty is $7,000. For "willful" violations, the minimum penalty is $5,000 and the maximum penalty is $70,000.

An employer accused of a "willful" violation faces more than just high penalties. It faces a public relations nightmare, for OSHA will frequently issue a press release studded with quotes from OSHA officials accusing the employer of having willfully violated OSHA requirements. The allegation can disqualify an employer from being able to bid on public and private contracts. It can also strip the employer of insulation from tort suits by injured employees; the willfulness allegation can be used as evidence that the harm was "intentional" and thus bring the suit within "intentional harm" exceptions to workers' compensation exclusivity. A "willfulness" charge can also raise the possibility of federal criminal prosecution if a fatality occurred.

The Wages of Vagueness: Negligence As Willfulness

With so much riding on the term, one might think that either the OSH Act would define it, or that the case law would prescribe a clear and narrow test for it. Unfortunately, neither is the case. The OSH Act contains no definition of "willful," and the case law sets out widely varying interpretations. For example, one common test is whether the employer had an "intentional disregard of, or plain indifference to, OSHA requirements."

The chief problem with such tests is their amorphousness: They permit undisciplined accusations of willfulness by OSHA, and provide no clear or predictable yardstick for decision by the commission. As a result, some commission decisions found willfulness on grounds that amounted to mere negligence for example, because the employer "should have known" that it was required to comply with an OSHA standard, or "should have known that its policy was incorrect." Examples of this are Capeway Roofing Systems Inc., 20 BNA OSHC 1331, 1342 (No. 00-1986, 2003), in which a violation was found willful because employer "should have known" that an exception did not apply, and Atlantic Battery Co., 16 BNA OSHC 2131, 2161 (OSHRC 1994), in which a violation was found willful because the employer "should have known" of incorrect policy.

Although the commission likely knew the much-stated notion that negligence does not amount to willfulness, it seemed in its earlier cases not to realize that by employing phrases such as "reasonable" and "should have known," it was doing what the case law forbade finding willfulness on the basis of negligence. Congressional testimony in 2003 sharply protested this trend in the case law. See the testimony of this writer at a hearing titled, "H.R. 1583 (Assessing The Impact On Small Business)," before the House Subcommittee on Workforce Protections of the Committee on Education and the Workforce (June 17, 2003), available at edworkforce.house.gov/hearings/108th/wp/osha061703/sapper.htm.

The D.C. Circuit States the Obvious; the American Wrecking Case

In American Wrecking Corp. v. Secretary of Labor, No. 02-1379 (D.C. Cir., Dec. 19, 2003), the D.C. Circuit dealt what is likely a death blow to this notion. An administrative law judge had found willfulness because a certain unsafe condition was "so obvious" as to render "unreasonable" the employer's belief in its safety. The court stated: "This reasoning is patently flawed." Noting that the OSH Act requires a showing that the employer knew or "should have known" of a violative condition to prove non-willful violations, the court stated that to find willfulness because the employer should have known of hazardousness "would erase the distinction between violations that are willful and those that are not." On this point, it quoted another court of appeals: "A distinction between serious and wilful violations exists only if wilfulness means knowledge that the conditions violate the statute or regulations actual rather than imputed knowledge, for otherwise we are back to negligence."

The Commission Agrees with the D.C. Circuit: The Froedtert Hospital Case

The American Wrecking decision quickly made its mark on the commission. In Froedtert Memorial Lutheran Hospital Inc., OSHRC Docket No. 97-1839 (Jan. 16, 2004), the commission warned against blurring the distinction between willfulness and mere negligence. It first cited the D.C. Circuit's decision in American Wrecking for the proposition that a good faith but erroneous belief in the legality of one's conduct is not willfulness. It noted the Supreme Court's admonition in a Fair Labor Standards Act case that, where an employer believes in good faith (i.e., sincerely) that his conduct is lawful, any violation is not willful, even if the employer's belief is unreasonable, so long as it is not reckless. The commission also noted a statement by another court that "a negligent violation of the [OSH Act] is merely 'serious,'" not willful.

An employer faced with an accusation by OSHA that it committed a willful violation because it "should have known" or "must have known" that something was hazardous or illegal, or was "unreasonable" in believing that a condition was lawful or safe, should demand that the charge be withdrawn by OSHA or vacated by an administrative law judge. No longer should OSHA accuse employers of, or the commission find employers guilty of, willful violations by relying on wrongly-decided cases such as Capeway.

Contributing Editor Arthur G. Sapper is a partner in the Washington, D.C. office of McDermott, Will & Emery. He is experienced in all areas of occupational safety and health (OSHA) law and mine safety and health (MSHA) law, including inspections, litigation, rulemaking, counseling and lobbying. He litigates regularly before the Occupational Safety and Health Review Commission, the Federal Mine Safety and Health Review Commission, the federal appellate courts and various administrative bodies.

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