Recently, we wrote that an Occupational Safety and Health Review Commission ruling could make it more difficult for OSHA to get willful citations to stick. Now, a lawyer specializing in OSHA citation appeals has expressed the same opinion, and we have anecdotal evidence that this is already happening.
In May, the OSHRC reclassified 99 violations against Dayton Tire from willful to serious.
The fines stemmed from an October 1993 incident in which a Dayton Tire employee in Oklahoma City died from injuries he suffered when a machine activated unexpectedly.
What had been $1.975 million in fines regarding lockout/tagout dropped to $197,500, a 90% reduction.
The U.S. Court of Appeals, DC Circuit, had ordered the commission to reconsider the gravity of the fines. Reason: The court said Dayton Tire made some effort to comply with the OSHA LO/TO regulations, so the violations weren’t willful.
OSHA fines are categorized as willful when the company committed the violation with either an intentional disregard of or plain indifference to OSHA regulations.
“It takes a lot to be plainly indifferent,” the DC Circuit Court wrote in its opinion.
Now, in a blog post, attorney Shannon Young of Harmon & Davies writes this decision “gives employers an even stronger basis from which to contest willful OSHA citations.”
“What this means is that as long as an employer is acting in good faith to comply with OSHA regulations,” Young writes, “even if OSHA later determines that the employer’s actions fell short of what was required under OSHA regulations, the employer should not be cited for a willful violation.”
The difference in financial penalties for companies can be huge. The maximum allowed for a willful violation is $70,000. The maximum for a serious citation is $7,000.
And there’s anecdotal evidence the district court’s ruling may be affecting OSHRC decisions already.
In a case involving trenching, an OSHRC administrative law judge ruled a willful citation issued to a construction company should be reduced to a serious violation because the supervisor at the trench site was “inexperienced, uninformed and confused about how to protect employees.”
“The facts of this case do not establish that [the supervisor] possessed a state of mind that, if he were informed of the [OSHA] standard, he would not care.”
In other words, he wasn’t indifferent.
Legislators, seeking to give OSHA more teeth, have re-introduced, every two years, bills that would increase the maximum allowable fines for safety and health violations.
However, given these rulings based on definitions in the Occupational Safety and Health Act, perhaps OSHA reform needs to focus on the definitions of certain types of violations.
What do you think? Let us know in the comments below.