OSHA dealt setback in 18-year dispute over alleged willful violations

In a case that took a stunning 18 years to resolve, a federal appeals court has limited OSHA’s ability to impose willful violations, which carry heavier potential penalties than standard violations.

The case stemmed from a citation personally served in 1994 by then-Secretary of Labor Robert Reich against Dayton Tire alleging 100 willful violations and proposing a penalty of approximately $7.5 million. Federal law defines willfulness as occurring when an employer intentionally disregards the Occupational Safety and Health Act or acts with plain indifference to that law.

An excellent article by Willis J. Goldsmith and Jacqueline M. Holmes of Jones Day and published by the Washington Legal Foundation, describes the tortured path of the case, which included a 13-year delay at the Occupational Safety and Health Review Commission.

The case centered on Dayton’s lockout-tagout procedures and whether it provided a proper level of training to employees. After the citation was issued, the case went to an administrative law judge and then to the Review Commission. Thirteen years later, the Review Commission ruled that the violations were willful. Among other things, the Commission pointed to Dayton Tire’s alleged failure to act on views expressed by OSHA inspectors about its lockout-tagout program.

In its recent ruling overturning the willful citation, the U.S. Circuit Court of Appeals for Washington, D.C., said that disagreeing with OSHA’s position was not sufficient evidence of willfulness. As Goldsmith and Holmes point out, if disagreeing with OSHA constitutes willfulness, then an employer could never contest a citation without danger of being cited for willfulness.

The Appeals Court said taken together, all the evidence cited by the Review Commission was not sufficient justification for a finding of willfulness because “it takes a lot to be plainly indifferent.”

While employers who truly are indifferent to safety deserve extra punishment, this ruling demonstrates yet again that OSHA has been throwing the baby out with the bathwater.

Subscribe to Jim Stanley’s OSHA blog and have new post sent automatically to your mailbox or reader.