The OSHA “willful” mysteries
Often there is no explanation for the charges
Many of the OSHA cases that cite “willful” violations present mysteries. The mysteries are why the alleged violations were categorized as willful. These charges are not a mystery to OSHA, but they are mysteries to readers of citations. Since the penalty for a willful violation can be over $130,000, there should not be any mystery about such charges.
Some OSHA citations and notice of penalty present clear reasons for the charge of willful violations. Some citations give only a hint of OSHA’s thinking. They leave the reader to infer OSHA’s reasoning.
In too many citations, there is no explanation at all for the charge of willful. Such citations do not support what the area directors say in the press releases. For some of these cases, I asked OSHA area offices, regional offices, and public affairs for explanations. I did get responses, after multiple calls and emails. Who has the time for that? I couldn’t do it, if I hadn’t retired from OSHA several years ago.
A few offices required me to submit a Freedom of Information Act (FOIA) request. Most responded without a FOIA request. In every case, I was asking for explanations that are already provided in the good citations available on the OSHA site. Note that even most of the good ones are in PFD formats that do not permit their text to be searched or copied. That is a problem for people who need or want to capture information from citations.
One area director called me to say he would not provide explanation for the allegation of willful, because the case was being contested and I was no longer in OSHA. If all citations made clear why OSHA alleged the willful violations, perhaps fewer cases would be contested. Another A.O. told me the citation was not ready, but it had been mentioned in a press release.
Looking at some cases
Let’s examine some cases to see why an explanation of “willful” is important. Below are a few citations that support their willful charges.
Jax Utilities Management, Inc., Jacksonville, FL
The press release for this case quotes Brian Sturtecky, the OSHA Jacksonville area office director. He said, “This employer knowingly exposed employees to dangerous and potentially fatal hazards, and this injury could have been avoided if the employer had used required protective systems.” In this case, the citation backs up what Director Sturtecky said.
The citation charges a willful violation of 29 CFR 1926.651 (i)(3): Sidewalks, pavements, or appurtenant structures are undermined and a support system or another method is not provided to protect employees from the possible collapse of such structures.
It supports the charge of willful stating: “Jax Utilities Management Inc. was previously cited for a violation of this occupational safety and health standard 1926.651(0(3) which was contained in OSHA inspection number 940569, citation number 1, item number 4, and was affirmed as a final order on November 18, 2013, … in Jacksonville. FL.” It makes clear that Jax Utilities was aware of their obligations.
This statements clearly explain to the public, the company’s lawyers and employees, others in the business, and the media why OSHA charged a willful violation. The support for the second willful charge (see citation) hits even harder.
Florida Roofing Experts, Inc.
The Jacksonville A.O. does another good job in the citation against Florida Roofing Experts, Inc. It states: Travis Slaughter d/b/a Florida Roofing Experts, Inc. was previously cited for a violation of this occupational safety and health standard or its equivalent standard 29 CFR 1926.501(b)(13), contained in OSHA inspection number 1251412, Willful citation number 1, item number 1, and affirmed as a final order on October 23, 2017,…
My hat is off to the Jacksonville A.O. for the good examples. Now, we turn to a few mysteries.
Harco Construction and Sky Materials Corp.
An OSHA press release describes a New York fatality in a 14-foot-deep trench. The press release said that the general contractor, Harco Construction LLC of New York City, and subcontractor Sky Materials Corp., did not provide cave-in protection for the trench, and did not support or brace a section of undermined and unsupported sidewalk to prevent it from collapsing into the trench. OSHA cited both employers for two willful violations of workplace safety standards. The proposed fines were $140,000 for each company.
The press release quotes Kay Gee, OSHA’s area director in Manhattan as follows: “A willful violation is committed with intentional, knowing or voluntary disregard for the law’s requirements, or with plain indifference to worker safety and health.” Please take note of Gee’s good summary of the requirements. It sets out elements of willfulness the reader should find in the citations.
The release further quotes Kay Gee: “Managers from Harco and Sky Materials were aware of these deadly hazards and did not remove employees from the trench, even after warnings from project safety officials…” The citations can be viewed here and here.
However, these two citations do not explain why the violations were willful. The citations do not mention “warnings from project safety officials” noted in the press release. They say nothing about the managers’ awareness of the hazards or how OSHA knew of their awareness.
I know that Director Gee knew what she was talking about, because the district attorney successfully brought criminal charges against the two companies and against one foreman. (I didn’t see what happened to the other foreman.)
This case sent a message: stiff fines from OSHA and criminal penalties in state court. But what about other cases with unexplained willful violations? How will the employees, the media, and the states attorneys see a clue to reckless endangerment or negligent homicide — if it is there?
Navy Contractors, Inc.
An OSHA press release states that OSHA charged the company for willfully exposing employees to fall hazards at residential construction sites in Royersford, Collegeville, and Center Valley, Pennsylvania. For violations at these sites, the company faces $603,850 in penalties.
The release quotes OSHA Allentown Area Director Jean Kulp as follows: “Knowingly and repeatedly ignoring fall protection requirements places workers at risk for serious or fatal injuries.” I looked for support of the willful charge in the citation for the Royersford site. The citation identifies and describes the violated standard. It says nothing to support the charge of willful. Not a word.
Atlantic Drain Service Company, Inc.
The citation for the case supports Citation 2 item 1: Willful, 29CFR 1904.40(a). It says the employer failed to provide copies of injury & illness records within four hours after they were requested both verbally and in writing. This assertion of verbal and written notice is a solid explanation for the willful charge.
This citation’s other items of willful violations present no explanation for the many willful charges. There was evidence of willful violations, because the Suffolk County, MA, district attorney’s office brought charges. Prosecutors alleged that the company and its owner were well aware of the extreme danger posed by a deep trench without cave-in protection because they had been cited twice by OSHA for failing to utilize them – first in 2007, when they were fined $15,000, and again in 2012, when they were fined $40,000. Why wasn’t this mentioned in the Citation and Notice of Penalties?
It’s not just OSHA: A California case
A Cal/OSHA press release says that Cal/OSHA fined Platinum Pipeline, Inc. $242,600 for failing to protect employees working in a trench at a construction site.
Note that the release states, “A willful violation is cited when the employer is aware of the law and violates it nevertheless, or when the employer is aware of the hazardous condition and takes no reasonable steps to address it.” So, I looked in the citation for any assertion that the employer was aware of the law or the hazardous condition.
The citation says that “competent” persons identified a hazardous condition which could cause a cave-in, but doesn’t say that the company knew of it. The “narrative description” (not the citation) gave further details of the incident, but does not state that the “competent” persons informed the supervisor. Neither does it say the supervisor was present while the work was being done.
The state charged the company with a “Willful-Serious Accident Related” violation of 8 CCR Section 1541(k)(2), that: “Where the competent person finds evidence of a situation that could result in a possible cave-in… exposed employees shall be removed from the hazardous area until… precautions have been taken to ensure their safety.”
The citation then states that: “…the employer failed to remove the employees from the hazardous area until necessary precautions were put in place to ensure their safety… Competent persons identified and acknowledged evidence of instability in excavated soil which could result in a possible cave-in; however exposed employees were not removed from the excavation.”
This seems to imply that the “competent” persons informed the supervisor of the hazard they saw. But neither the citation nor the narrative say that such workers informed the company’s supervisor of that hazard. One man died in the cave-in. (The narrative was provided to the writer by Cal/OSHA.)
Why I care and you should too
I stumbled upon the problem I raise here, while I was looking at cases with willful violations. I described what I saw to one OSHA field staffer. That staffer was surprised and said (roughly), “We have to document the charge of Repeat Violation, so I thought we were documenting Willful Violations.”
When federal OSHA and state plan states charge a willful violation, their reasons should be clear to: the employer, the employees, other businesses, the general public, the media, and the local district attorneys.
Six or seven years ago, a state prosecution of an employer for negligent homicide for a workplace death was a very rare event. Today, more states are bringing criminal charges against companies, managers, and supervisors for workplace deaths. The charges arise from knowingly disregarding occupational safety and health law, and from plain indifference to worker safety and health.
Some portion of workplace “accidents” are not accidents, they are negligent homicides. I served on the county grand jury for three months. Members were sensible and cautious. So, I trust my neighbors and yours to see the difference between an accident and a homicide, if they ever get such a case.
When we see five or six indictments a year for these cases, the number of deaths in trenches and silos, and from unprotected falls will decline. As a former U.S. attorney told me: People don’t like to pay fines, but they HATE going to jail.
Finally, to OSHA and state plan states, the fact that an employer is contesting your citation is not a reason to withhold it from the public. Please put citations on your websites promptly and in a format that can be searched and copied.