OSHA Violations: What Does ‘Willful’ Really Mean?
Which violations rise to the level of “willful” in the eyes of OSHA? According to the OSHA Field Inspection Reference Manual, a willful violation of OSHA standards occurs whenever the evidence shows either an intentional violation or “plain indifference” to the requirements of the regulations.
OSHA will consider that an employer has committed an intentional and knowing violation if the employer:
- Was aware of the requirements of the Occupational Safety and Health Act, or the existence of an applicable standard, and was also aware of a condition or practice in violation of those requirements, and did not abate the hazard.
- Was not aware of the requirements of the Act or standards, but was aware of a comparable legal requirement (e.g., state or local law) and was also aware of a condition or practice in violation of that requirement, and did not abate the hazard.
OSHA will consider that an employer has committed a violation with plain indifference to the law whenever:
- Upper management was aware of an OSHA requirement applicable to the company’s business but made little or no effort to communicate the requirement to lower level supervisors and employees.
- Company officials were aware of a continuing compliance problem but made little or no effort to avoid violations (for example, repeat violations for the same or similar condition).
- An employer was not aware of any legal requirement, but was aware that a condition or practice was hazardous to the safety or health of employees and made little or no effort to determine the extent of the problem or to take the corrective action. (Knowledge of a hazard may be gained from such means as insurance company reports, safety committee or other internal reports, the occurrence of illnesses or injuries, media coverage, or, in some cases, complaints of employees or their representatives.)
In particularly “flagrant” situations, says OSHA, willfulness can be found despite lack of knowledge of either a legal requirement or the existence of hazard if the circumstances show that the employer would have placed no importance on such knowledge even if it had possessed it, or had no concern for the health or safety of employees.
According to the Field Manual, “It is not necessary that the violation be committed with a bad purpose or an evil intent to be deemed ‘willful.’ It is sufficient that the violation was deliberate, voluntary or intentional as distinguished from inadvertent, accidental or ordinarily negligent.”
Additional factors that can influence a decision about whether violations are willful include:
- The nature of the employer’s business and the knowledge regarding safety and health matters which could reasonably be expected in the industry
- The precautions taken by the employer to limit the hazardous conditions
- The employer’s awareness of OSHA requirements and of the responsibility to provide safe and healthful working conditions
- Whether similar violations and/or hazardous conditions have been brought to the attention of the employer
- Whether the nature and extent of the violations disclose a purposeful disregard of the employer’s responsibility under law
When would a court support a “willful” citation? Here’s how one federal appeals court ruled.
As a construction company began work on the shell of a three-story building, a representative of the local utility showed up and said, “You can’t continue working here with those power lines so close by. They have to be moved, deenergized, or insulated.”
Despite the warning, the construction company proceeded with the work without taking any steps to protect workers from the power line hazard.
In order to build the structure, workers hoisted rebar from ground level to the third floor through a second-floor window, and then through a hole between the second and third floors. The rebar was passed up through the hole lengthwise and then angled 45 degrees away from the power lines. Had the bars been standing straight, however, they could have touched the power lines.
A few days after the power company representative warned of danger, an outside electrician working on the site also warned the site supervisor that what they were doing with the rebar was extremely dangerous. If the rebar touched a power line, he said, someone could be electrocuted.
The site supervisor listened this time and halted work immediately. He expressed concern to the construction company’s management.
Instead of dealing with the power line hazard, management decided that workers should lift the rebar on another side of the building where the power lines crossed over only one corner. Annoyed with the supervisor for halting work, management also replaced him.
The new site supervisor did not follow management’s suggestion to lift rebar on another side of the building, however, and work continued as before. One day, as a 16-foot length of rebar was being lifted, it came in contact with the power line, and an employee was electrocuted.
OSHA cited the company for numerous safety violations, including a willful violation of the construction standard that prohibits employers from permitting employees to work too close to live electrical power circuits.
The construction company appealed the citation, claiming the site supervisor ignored its instructions to move the lifting operation to another side of the building. This was a case of employee misconduct, not a case of an employer intentionally subjecting employees to a hazard.
But a federal appeals court disagreed. In deciding that a willful violation had occurred, the court noted the company’s “cavalier attitude to the possibility of serious injury, including death.” The company made only a minimal effort to address the hazard despite repeated warnings and the requirements of an OSHA standard.
Willful violations are not just expensive- they can mean serious jail time for employers. The Hamlet, North Carolina food processing plant fire, at the Imperial Foods processing plant on September 3, 1991, is a good example. Twenty-five employees were killed and 54 injured in the fire, trapped behind locked fire doors. In 11 years of operation, the plant had never received a safety inspection. Investigators believe a safety inspection might have prevented the disaster.
Imperial’s operators usually kept the doors of the food processing plant padlocked and the windows boarded, to prevent theft, vandalism or other criminal acts. Some workers were made nervous by the locked doors but did not voice their concerns for fear of losing their jobs.
A federal investigation was launched, which resulted in the owner being convicted of non-negligent manslaughter and receiving a 20-year prison sentence. The company paid a fine of $808,150, the highest fine in the history of North Carolina.