Enforcement and Inspection

Willful Violations: The Case of the Cavalier Attitude

When would a court support a “willful” citation? Find out how one federal appeals court ruled.

As a construction company began work on the shell of a three-story building, a representative of the local utility showed up and said, “You can’t continue working here with those power lines so close by. They have to be moved, deenergized, or insulated.”

Despite the warning, the construction company proceeded with the work without taking any steps to protect workers from the power line hazard.

In order to build the structure, workers hoisted rebar from ground level to the third floor through a second-floor window, and then through a hole between the second and third floors. The rebar was passed up through the hole lengthwise and then angled 45 degrees away from the power lines. Had the bars been standing straight, however, they could have touched the power lines.

A few days after the power company representative warned of danger, an outside electrician working on the site also warned the site supervisor that what they were doing with the rebar was extremely dangerous. If the rebar touched a power line, he said, someone could be electrocuted.

The site supervisor listened this time and halted work immediately. He expressed concern to the construction company’s management.

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Employee Electrocuted

Instead of dealing with the power line hazard, management decided that workers should lift the rebar on another side of  the building where the power lines crossed over only one corner. Annoyed with the supervisor for halting work, management also replaced him.

The new site supervisor did not follow management’s suggestion to lift rebar on another side of the building, however, and work continued as before. One day, as a 16-foot length of rebar was being lifted, it came in contact with the power line, and an employee was electrocuted.

OSHA cited the company for numerous safety violations, including a willful violation of the construction standard that prohibits employers from permitting employees to work too close to live electrical power circuits.

The construction company appealed the citation, claiming the site supervisor ignored its instructions to move the lifting operation to another side of the building. This was a case of employee misconduct, not a case of an employer intentionally subjecting employees to a hazard.

But a federal appeals court disagreed. In deciding that a willful violation had occurred, the court noted the company’s “cavalier attitude to the possibility of serious injury, including death.” The company made only a minimal effort to address the hazard despite repeated warnings and the requirements of an OSHA standard.

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