It’s never good news when the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) cites your business for violations. But there’s bad news, and really bad news, and a recent case in South Florida illustrates the difference.
On February 8, 2012, OSHA announced that it cited Hialeah-based Bennett Electrical Services Co. Inc. for three safety violations after an employee was injured and hospitalized as a result of a defective truck-mounted crane. According to OSHA, while moving concrete traffic light poles with the crane, the boom of the crane separated from the truck, striking the operator in the head, which knocked him off the operator’s station and onto the ground.
OSHA cited the contractor for two serious violations and $8,400 in proposed fines for allowing modifications to be made to the truck-mounted crane without the written approval of the manufacturer and allowing the crane to continue to be operated despite known deficiencies. That was the bad news.
The really bad news was that OSHA also cited the contractor for a willful violation and a $42,000 penalty for failing to conduct annual inspections on a truck-mounted crane. OSHA contends that the employer was aware of safety concerns raised by OSHA based on previous citations issued in 2002 and 2006.
So what’s the difference between serious and willful violations?
Section 17 of the Occupational Safety and Health Act provides that “a serious violation exists where there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.” Serious violations carry a penalty of up to $7,000 for each violation.
A willful violation exists “where an employer has demonstrated either an intentional disregard for the requirements of the Act or a plain indifference to employee safety and health.” OSHA’s Field Operations Manual states that “[i]t is not necessary that the violation be committed with a bad purpose or malicious intent to be deemed ‘willful.’ It is sufficient that the violation was deliberate, voluntary or intentional as distinguished from inadvertent, accidental or ordinarily negligent.” Willful violations carry a penalty may of not more than $70,000, but not less than $5,000, for each willful violation.
Penalties for violations of the Act, including those classified as other-than-serious, are set forth at Section 17 of the Act. An employer’s right to negotiate and contest OSHA penalties will be discussed in future posts.
Please see the following links for the announcement and OSHA penalties: