Seventh Circuit Affirms “Willful” OSHA Violation
By Ruder Ware Alumni
May 12, 2015
The Seventh Circuit Court of Appeals has issued a decision that is interesting for its discussion and analysis of what a “willful” OSHA violation means. A worker for a precast concrete manufacturer fell into a sand bin in which he became engulfed up to his neck. Fortunately, he survived, but the complicated five hour rescue caused serious injuries. Co-workers responded to the trapped worker’s screams; they were able to clear the sand from his neck to his waist. They were not able, however, to extract the victim on account of the sand that was pressing in on him. During the ordeal the trapped worker requested that a call be placed to 911. The plant manager was aware of the request, but for unexplained reasons that call was not made until after it became apparent the attempt by co-workers to dig him out of the sand would not be successful. OSHA cited the employer for a willful violation for having failed to immediately call rescue services.
The applicable regulation, 29 C.F.R. § 1910.146(d)(9) (permit required confined space program), requires the employer to develop and implement procedures for summoning rescue and emergency services, for providing necessary emergency services to rescued employees, and for preventing unauthorized personnel from attempting a rescue. The Seventh Circuit summarily determined that the employer had failed to develop and implement rescue procedures. The more difficult question was whether that violation was “willful.”
The Seventh Circuit began its discussion by noting that neither the OSHA statute nor the regulations that implement the statute define the term “willful.” Nor does the common law provide a standard definition. The Court noted that it may have “muddied the waters” as to the meaning of “willful” in a 2005 decision, in which it held that “an OSHA violation is willful if it is committed with intentional disregard of, or plain indifference to, the requirements of the statute.” Here, OSHA deemed the employer’s violation to have arisen out of “plain indifference.” The Court observed, however, that “plain indifference” merely duplicates the first alternative, “intentional disregard.” The Court added that its attempt to clarify “willfully” in a 2014 case “may not have been entirely successful.” There the Court said that “willfully” for purposes of civil law is conduct that creates “an unjustifiably high risk of harm that is either known or so obvious that it should be known.”
The statute that provides for civil penalties, 29 U.S.C. § 666(a), requires proof the employer was aware of the risk, knew that it was serious, knew that effective measures could be taken, and failed to take them. The Court equated this description to reckless conduct The Court stated that the conduct of the plant manager to delay making the 911 call “no doubt” acted “recklessly and therefore willfully within the meaning of section 666(a) and that his reckless behavior must be imputed to [the employer].” If the employee had died, a criminal penalty under 29 U.S.C. § 666(e) for a willful violation would have been applicable. In that circumstance, the statute requires proof “not only that the risk was known to the defendant, but also that he knew he was violating the law.”
While this case, Dukane Precast, Inc. v. Perez, 2015 WL 1967405 (May 4, 2015) does not change the existing law, it describes how the term “willful” in the context of OSHA violations has been interpreted in the Seventh Circuit. Accordingly, this case is a good place to start for assessing a challenge to a “willful” violation, especially if the violation arises out of the confined space entry program. Click here for a link to the case.
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