by Mark A Lies, II, James L. Curtis, Adam R. Young, and Craig B. Simonsen
Seyfarth Shaw LLP is an IMA Member
A contractor’s employee fell 36 feet while working at a warehouse construction site and not using fall-protection equipment. Following a bench trial before the District Court, the Defendant contractor DNRB, Inc. was convicted of a Class B misdemeanor for willfully violating two safety regulations (29 C.F.R. § 1926.760(a)(l) and (b)(l)), and causing the employee’s death. The Eighth Circuit upheld the conviction.
- Willful Fall Protection Citation Based on Fatality Leads to Criminal Prosecution.
OSHA commonly cites construction employers whose employees fail to use fall protection. In fact, 29 CFR § 1926.501 (Fall Protection in Construction) is the most frequently cited regulation by federal OSHA. Employers who fail to provide and enforce the use of fall protection do so at their own peril, as OSHA will cite employers with willful violations, dramatically increasing the civil penalties. In the event of a fatality a willful citation can then lead to a criminal prosecution by the Department of Justice.
- Presence of Fall Protection Equipment Does not Negate Criminal Intent.
United States v DNRB, Inc., No. 17-3148 (8th Cir. July 17, 2018), is an example of just this kind of prosecution, where OSHA cited the employer for a willful violation of the fall protection standard for steel erection rules, 29 C.F.R. § 1926.760. The Contractor was also criminally prosecuted, convicted, and sentenced to the maximum penalty.
On appeal, the employer challenged the sufficiency of the evidence, several evidentiary rulings and the sentence imposing the statutory maximum fine of $500,000. It argued that the Department of Justice failed to prove the three elements necessary to find a criminal conviction (29 CFR § 666(e)): (1) that the company violated an applicable standard, (2) that it did so willfully, and (3) that the violation caused an employee’s death.
Principally, the employer argued that its conduct was not willful because it provided fall protection and anchorage points, and the employee was wearing a harness. The Court countered that while the employee had a personal fall-arrest harness and connectors, he was not using them to secure himself to an anchorage point on the warehouse’s frame. The Court explained that “the regulations state that employees ‘shall be protected’ by appropriate equipment, not that they merely be provided with or possess such equipment” (emphasis added).
- Court Relies on Past Citation and Prior Warning to Establish Criminal Intent.
The Eighth Circuit then noted that the Contractor had a previous citation for violating the same standard (§1926.760), and so concluded that the Contractor was aware of its requirements. “Moreover, a supervisor’s knowledge can be imputed to his employer, and there was evidence supporting a conclusion that [the employee’s] supervisor … intentionally disregarded the safety requirements here.” In fact “a crane operator stated that he expressly warned [the supervisor] about [the employee’s] failure to use fall-protection equipment.”
Finally, the Court found that the employee would not have fallen to his death had he been connected to an anchorage point, and that the employer’s failure to make him use required fall-protection equipment was a “but-for cause” of his death. In addition it determined that the fall was “a foreseeable and natural result” of working more than 30 feet above the ground without using fall-protection equipment.
- Employers Must Enforce Safety Rules and Contest Unfounded Citations.
Employers may draw numerous lessons from this case. Foremost is the absolute importance of providing fall protection, supervising employees who are exposed to fall hazards to ensure they use the equipment, and enforcing the employer’s safety rules. Only then will employers be able to prove the affirmative defense of employee misconduct when an employee fails to use his assigned fall protection equipment. United States v DNRB, Inc., shows the perils for employers who fail to enforce safety rules and fail to respond to reports of noncompliance by an employee. This case also illustrates how accepting and settling citations may set-up an employer for a willful citation in the future, and even a criminal prosecution in the event of a fatal accident. Employers should consult with legal counsel regarding an OSHA fall protection citation and ensure that any defensible citations are contested and vacated.
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