The Occupational Safety and Health Review Commission, prodded by an emphatic decision of the U.S. Court of Appeals for the District of Columbia Circuit, has just held what should have been obvious all along--that an employer who commits an OSHA violation through negligence has not committed a "willful" violation. In recent years, OSHA has alleged that violations were "willful" if the employer "should have known" that his conduct was unlawful. Decisions by the independent commission had approved of this notion. The commission's most recent decision, and the forceful language used by the D.C. Circuit, should put an end to such prosecutions and decisions.
The Occupational Safety and Health Act (OSH Act) has a staggered penalty structure. For "other-than-serious" and "serious" violations, the maximum penalty is $7,000. For "willful" violations, the minimum penalty is $5,000 and the maximum penalty is $70,000.
An employer accused of a "willful" violation faces more than just high penalties. It faces a public relations nightmare, for OSHA will frequently issue a press release studded with quotes from OSHA officials accusing the employer of having willfully violated OSHA requirements. The allegation can disqualify an employer from being able to bid on public and private contracts. It can also strip the employer of insulation from tort suits by injured employees; the willfulness allegation can be used as evidence that the harm was "intentional" and thus bring the suit within "intentional harm" exceptions to workers' compensation exclusivity. A "willfulness" charge can also raise the possibility of federal criminal prosecution if a fatality occurred.
The Wages of Vagueness: Negligence As Willfulness
With so much riding on the term, one might think that either the OSH Act would define it, or that the case law would prescribe a clear and narrow test for it. Unfortunately, neither is the case. The OSH Act contains no definition of "willful," and the case law sets out widely varying interpretations. For example, one common test is whether the employer had an "intentional disregard of, or plain indifference to, OSHA requirements."
The chief problem with such tests is their amorphousness: They permit undisciplined accusations of willfulness by OSHA, and provide no clear or predictable yardstick for decision by the commission. As a result, some commission decisions found willfulness on grounds that amounted to mere negligence--for example, because the employer "should have known" that it was required to comply with an OSHA standard, or "should have known that its policy was incorrect." Examples of this are Capeway Roofing Systems Inc., 20 BNA OSHC 1331, 1342 (No. 00-1986, 2003), in which a violation was found willful because employer "should have known" that an exception did not apply, and Atlantic Battery Co., 16 BNA OSHC 2131, 2161 (OSHRC 1994), in which a violation was found willful because the employer "should have known" of incorrect policy.
Although the commission likely knew the much-stated notion that negligence does not amount to willfulness, it seemed in its earlier cases not to realize that by employing phrases such as "reasonable" and "should have known," it was doing what the case law forbade--finding willfulness on the basis of negligence. Congressional testimony in 2003 sharply protested this trend in the case law. …