OR-OSHA v. CBI Services, Inc. – Monitoring Workplace Safety

Far too many workers suffer on-the-job injuries because employers fail to obey the industry and legal standards for safety.
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In a recent lawsuit out of Oregon, the federal regulatory agency that oversees workforce safety sued a company for failure to exercise reasonable diligence to avoid a legal violation amounting to a safety hazard. The Occupational Safety & Health Administration operates throughout the country, and will at times take civil action against companies that break various labor laws, including the failure to follow rules that keep workers safe.

Unless a willful violation results in a worker’s serious injury or death, criminal action is usually not taken, but a company can be made to pay civil fines and penalties.

Unfortunately, as a 2012 report by the Center for Public Integrity found, federal and state agencies only collect about 40 percent of what’s initially assessed following workplace inspections – leaving about $1.3 billion unpaid.

But even when collected, none of that money goes to injured workers or surviving family members. Those fines are instead paid to the U.S. Treasury Department. People directly affected by these violations must seek redress by contacting an attorney and filing a workers’ compensation claim. OSHA can bring a claim regardless of whether any worker suffered an injury or not, so long as there was a violation that risked worker safety.

Our Anderson workers’ compensation lawyers know sometimes state laws can vary, but usually industry standards – particularly on construction sites – are relatively uniform.

In the case of OR-OSHA v. CBI Services, Inc., the employer was performing work on a water treatment tank under construction when an OSHA safety compliance officer arrived to conduct an inspection. The halfway-constructed tank had a wall that was more than 32-feet high, creating a circular enclosure with no roof. Roughly four feet below the top edge on the inside was a scaffolding to prevent worker falls. However, there was no such scaffolding on the outside.

While on site, the OSHA inspector noted a worker was sitting on the top rim of the tank, welding. He was not using any fall protection harness. He immediately contacted a supervisor and the worker was told to get down. While the supervisor was speaking with the OSHA officer, the officer noticed a second worker on the lift also working without the mandated fall protection. He was wearing both a harness and lanyard, but it was not attached to the lift. The worker had reportedly been working without proper fall protection for at least 10 minutes.

The employer was issued a citation and notification of penalty for two safety violations rated as “serious.” The employer disciplined the supervisor and both workers as a result. The safety rules were reportedly in place – including training – that would indicate such fall protection rules were required.

For this reason, the employer decided to fight the fine, moving to dismiss the citation on the grounds OSHA failed to prove the employer knew of the violations. Specifically, employer argued OSHA did not prove the supervisor failed to be reasonably diligent in monitoring workers and enforcing the rules on safety. OSHA was mistaken in assuming the supervisor had an obligation to constantly keep an eye on workers.

The administrative law judge (ALJ) denied the dismissal motion, finding supervisor had sufficient time to observe either or both workers at issue in the citation. At the hearing, the ALJ vacated the citation pertaining to the second worker, who was not very high up. However,the ALJ concluded supervisor could have known of the violation had he exercised reasonable diligence, based on his closeness to the worker and the amount of time the violation was carried on.

OSHA appealed on the vacating of the one citation, while employer appealed on the finding of the other. The court of appeals agreed with both and reversed, remanding for review.

OSHA then appealed to the state supreme court for review, arguing the appellate court erred in holding the agency had to prove the company “should have known” of a violation, rather than that the company “could have known.” Employer countered this would amount to an “unprecedented” strict liability rule.

The state supreme court affirmed the appellate court, holding that just because it was possible for a supervisor to have known of a violation doesn’t necessarily mean he failed to use due diligence if he did not discover it.

Thus, the case was remanded back to the workers’ compensation board for further review.

If you have been injured at work, contact the Lee Law Offices at 800-887-1965.

Additional Resources:
OR-OSHA v. CBI Services, Inc., Dec. 26, 2014, Oregon Suprem Court

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