Douglas Ehlke Douglas Ehlke

Trends Observed After a Season of Litigation

February 1, 2017

OSHA citation appeals and discriminatory-termination claims kept me in court and depositions much of last year. Among them were citations and penalties related to fatality machine guarding and lockout-tagout (LOTO). Along the litigation paths, I observed some trends which might prove helpful to progressive compliance programs in avoiding willful citations and penalties, and for preventing or resolving disability discrimination claims.

On the OSHA Front

In resolving and favorably settling OSHA citations, metalformers should take the time to identify and list the extra abatement or compliance steps taken, even including steps, program or training efforts not directly related to the inspection or citation items. If the cited standard was inapplicable, raise that defense early and work with OSHA to develop a best-practices safety/health-compliance program that can be used to educate the industry and avoid similar accident or fatality causes. Bring PMA and other association safety leaders into negotiations to remove inaccurate, invalid or vaguely worded citations.

When preparing to talk to OSHA personnel at the informal conference, know the history of prior contrary agency enforcement under the same standard, and research agency acceptance of prior legal rulings where the same standard was held to be inapplicable or infeasible to comply with. And, have managers read (for background, to avoid willful indifference to safety) the U.S. Court of Appeals for the District of Columbia Circuit 2012 decision in Dayton Tire v. Secretary of Labor, 671 F.3d 1249 (D.C. Cir., 2012). The D.C. Federal Court of Appeals clarified a clearer legal standard of identifying (and avoiding) what employer conduct constitutes “willful” violation of OSHA standards. The Appeals Court stated that the definition of “willful” is a narrow one, requiring that an act be committed “voluntarily with either an intentional disregard of, or plain indifference to, the Act’s requirements.” To make out a “willful” violation, the Secretary of Labor (OSHA) must be able to demonstrate that “the employer was actually aware, at the time of the violative act, that the act was unlawful, or that [the employer] possessed a state of mind such that if it were informed of the [OSHA] standard, it would not care.”

The D.C. Appeals Court further clarified that “it takes a lot to be plainly indifferent,” and based on the secretary’s failure to “cite a single piece of evidence indicating that [the manager] was actually aware…that the act was unlawful,” the Court vacated the penalties assessed.

The factual background of this case started in 1989, when OSHA promulgated the LOTO standard. Dayton Tire operated a manufacturing facility in Oklahoma, but all service and maintenance at the facility was performed by an outside contractor. Dayton Tire’s safety managers determined that its employees were only “affected” employees, whose required training in LOTO was considerably less stringent than that of “authorized” employees under OSHA’s standard. After a 1993 fatal injury to a Dayton Tire employee, caused by unexpected machine startup, OSHA inspected the facility and issued 107 “willful” violations, 98 of which were for alleged “willful” failures to train 98 different employees to the “authorized employee” level.

Dayton Tire contested the citations and a Review Commission administrative law judge affirmed the violations and assessed a penalty of $518,000. He ruled that even though Dayton Tire’s actions were “consistent with a good faith belief and effort to comply with the LOTO standard throughout the Oklahoma City plant,” 37 of the alleged violations were “willful” because Dayton Tire had knowledge that its parent corporation had previously been cited for similar violations of the LOTO standard.

The case was appealed to the Occupational Safety and Health Review Commission, which issued its opinion in 2010 (more than 12 years after the 1998 decision). The commission’s opinion upheld all of the violations as “willful” and increased the penalties to nearly $2 million (Secretary of Labor v. Dayton Tire, No. 94-1374 (2010)). The commission’s determination of “willfulness” was not based on the parent corporation’s prior violations, but rather on the original findings by Dayton Tire’s first safety manager: Only the outside maintenance-contractor’s employees were LOTO-authorized employees, which the commission found to be “plainly erroneous.”

The Review Commission also found that when the subsequent safety manager relied on her predecessor’s safety assessment, she “either knew that her predecessor’s LOTO analysis was incorrect or chose to avoid such knowledge by refusing to conduct her own assessment.”

The D.C. Circuit overturned the commission’s decision based on the “plain indifference” path to willful, noting that past commission findings of plain indifference have only been upheld where an employer has made no effort to address repeated warnings from employees, or OSHA stating that they were in violation of safety standards. In the Appeals Court’s view, the incidents presented by OSHA at trial and referenced by the Review Commission failed to reach that level. According to the D.C. Circuit, the original safety manager’s actions showed that she at least attempted to respond to concerns that were raised—“while [she] could have done more, she did not do nothing.” The manager’s “responses evince negligence at most,” which is insufficient for a filing of willful.

For a more objective fact of employer good faith (helping but not sufficient by itself), strive in your safety program to maintain your company workplace-injury (workers’-compensation) experience modification factor under 0.80. At least one state-OSHA decision views this as part of a good-faith employer-safety effort and a defense factor against willful citations.

Discriminatory Termination or Hostile Worker Environment Claims

When workers file or present workers’ compensation claims related to an injury at work, even if filed late the claim should be processed promptly and without a supervisor belittling or criticizing the claimant upon his return to work. Work closely with the carrier or workers’ compensation agency in the claim-processing stages, and know the documented medical restrictions of the worker and the availability of light-duty jobs or activities. If the department or crew enters a period of layoff or slowed production and other workers are recalled when business picks up, avoid excluding those on pending or complicated workers’ comp claims who possess similar job-description abilities and medical capacity to perform the work. Managers and supervisors engaged in personnel selection or discipline should be trained on anti-discrimination, workers’ compensation statutory discrimination and termination prohibitions, and on recall procedures or policies.

To defend against mega-damage claims, check into post-injury periods where there might be a refusal to return to gainful work or even an application to work for other employers. Subpoenaing applications or personnel files from subsequent employers can provide significant information, as can a good private detective when suspicions of fact claims arise. Arbitration clauses may have to be enforced or utilized.

And, remember that in these types of disability-discrimination statutory claims, plaintiffs can request and often obtain attorneys’ fees, in rare cases with a multiplier, following even a low-damages award. MF

Industry-Related Terms: Case
View Glossary of Metalforming Terms

Technologies: Safety


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