Why Employers Might Want to Contest “Willful” OSHA Citations

A recent federal court decision in a case referred to as Dayton Tire v. Secretary of Labor, gives employers an even stronger basis from which to contest “Willful” OSHA citations.   Specifically, the recent decision holds that Willful OSHA violations require more than a showing of “mere negligence.”  What this means is that as long as an employer is acting in good faith to comply with OSHA regulations, 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.

By way of background, OSHA violations are classified as:  Willful, Repeat, Serious, or Other than Serious.  Willful and Repeat violations are the most severe and I usually cringe when clients come to me with Willful and Repeat violations because the fines associated with such violations are substantially greater than the fines associated with Serious or Other than Serious violations and, if the citation sticks, Repeat and Willful violations really put a black mark on the company.  Where the basis for classifying the violation as Willful or Repeat is questionable, Harmon & Davies has frequently counseled our clients to contest the classification of the violation and we have reached favorable results for our clients in terms of having the classification of the violation reduced.

As stated above, the decision in Dayton Tire v. Secretary of Labor gives employers even more grounds upon which to contest a Willful violation.  In challenging a citation, the law says that regardless of the classification of the violation, OSHA must be able to prove that the employer had knowledge of the violative condition.  This standard protects employers from the rouge employee who, despite the employer’s best efforts to create a safe and compliant workplace, violates an OSHA regulation without the employer having any knowledge of it.

Even though the employer’s knowledge of the violation is required for every level of citation, a Willful violation requires that OSHA not only show that the employer had knowledge of the violation, but that an employer committed the violation voluntarily with either an intentional disregard of or plain indifference to OSHA regulations.  To prove that the violation was properly classified as Willful, the Secretary of Labor must show that the employer was actually aware, at the time of the violative act, that the act was unlawful, or that the employer possessed a state of mind that if it were informed that it was violating an OSHA standard, the employer would not care.  In other words, it takes a lot to show that an employer was plainly indifferent.  Accordingly, in the Dayton Tire case, the U.S. Court of Appeals for the District of Columbia Circuit held that based upon the Secretary of Labor’s failure to cite to a single piece of evidence indicating that the company’s manager was actually aware that the company’s actions were unlawful, the Secretary of Labor could not prove that the violation was Willful.  Thus, the Court vacated the penalties assessed against the employer.

In so ruling, the DC Circuit court (a federal appellate court) remarked that findings of plain indifference have only been upheld where the evidence shows that a company made no effort to address repeated warnings from employees or OSHA that the company was in violation of safety standards.  The allegations involved in the Dayton Tire case failed to reach that level.  Rather, the evidence in Dayton Tire showed that one of the safety managers made an attempt to respond to safety concerns involving Lockout/Tagout procedures when such concerns were raised.  Although the safety manager might have done more, she did not utterly fail to act.  As such, the safety manager’s responses reflected negligence at most, which evidence is insufficient for a finding of a Willful violation.  Accordingly,under the precedence established in Dayton Tire, so long as employers act in good faith, even if they are wrong, , such employers should not be cited for Willful violations.

If you are an employer who has been issued an OSHA citation, the attorneys at Harmon & Davies are here to assist you with evaluating the merits of your citation and determining whether you should contest the citation.

This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.

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