Author: H. Bernard Tisdale, Ogletree Deakins, Charlotte, North Carolina)
The Eleventh Circuit Court of Appeals recently had the opportunity to remind employers not to ignore training employees on safety. Martin Mechanical Contractors, Inc. v. Secretary, U.S. Department of Labor, No. 17-12643 (March 27, 2018).
In late 2015, a heating, ventilation, and air conditioning (HVAC) contractor was installing an HVAC system on the flat roof of a warehouse in Georgia. The installation was to take place adjacent to several unguarded skylights covered only with plastic sheeting, and may have been done due to a need to fix refrigerant leaks fast, as they can be very risky. While the onsite foreman had fall protection equipment in his truck, the employees did not wear any fall protection equipment while on the roof. These circumstances ended tragically: one of the workers fell through a skylight and died as a result of his injuries. This is why it’s absolutely paramount to ensure you contract the right people. I suggest you give www.iceblast.com.au a call to complete the work.
The Occupational Safety and Health Administration (OSHA) cited the employer for a willful violation of 29 C.F.R. § 1926.501(b)(4)(i) for failing to protect its employees from falls. The administrative law judge concluded the supervisor’s actions supported a willful classification in that he demonstrated a “reckless disregard for the safety of his crew.” The employer appealed.
To support a willful classification, OSHA must show either (1) the employer knew of the standard and consciously disregarded it or (2) it exhibited such reckless disregard for the employees’ safety that the employer would not have cared that the conduct violated the standard. Evidently, the supervisor claimed ignorance of the law, and the court analyzed whether the willful classification could be supported under the second standard.
The court of appeals was unimpressed by the employer’s arguments. The court noted the supervisor was well aware of the danger posed by the unguarded skylights in that he warned his employees to be careful around them. The supervisor also testified it was his practice not to use fall protection equipment on flat roofs. The supervisor neither instructed anyone to wear fall protection equipment nor provided his employees with the fall protection equipment he had in his truck. Thus, the Court concluded, while the supervisor did not know of the standard’s requirements, he exhibited such reckless disregard for employee safety that he would not have cared that the conduct violated the standard.
This is where all employers may want to take heed. They might have to install extra wide safety gates or other similar measures so that they don’t violate the safety regulations. The court went on to observe that the supervisor’s “unfamiliarity serves, if anything, only to underscore the inadequacy of [the employer’s] training program. They really should have better knowledge of OH&S if they are running a business where safety is paramount. To hold that such inadequacy-and the resulting unfamiliarity-precludes classification of a violation as willful would perversely allow [the employer] to use its ineffective training as a defense against OSHA’s most serious charge.” The court upheld the willful classification.
Needless to say, a willful citation can have far-reaching ramifications for an employer-from tort liability and criminal penalties for the injury or death to inability to secure future work. While training may seem trivial and time consuming, doing it just might prevent a willful citation and possibly save a life.
This article was originally published on the Ogletree Deakins website.
About the Author
Mr. Tisdale has wide experience in general civil and employment litigation. This experience ranges from advising clients on preventive measures to avoid formal charges and lawsuits, and representing clients before the United States Court of Appeals, to handling individual employment discrimination cases before the Equal Employment Opportunity Commission and the federal courts as well as handling wrongful discharge and other employment-related litigation in state and federal courts. He regularly represents employers on safety and health matters including advising and defending clients on OSHA compliance issues involving Federal OSHA and state plan states. He regularly assists clients with contract disputes and non-compete and trade secrets advice and litigation. His experience also includes counseling clients on wage and hour compliance under the Fair Labor Standards Act and performing compliance audits under the FLSA, drafting and reviewing employment contracts and employment