Analyze the case of SeaWorld of Florida v. Perez, 2014 U.S. App. LEXIS 6660 (D.C. Cir.) located in your textbook on pp. 559-564, including the opinion of Judge Rodgers as well as the dissenting opinio
SeaWorld of Florida v. Perez
748 F.3d 1202 (D.C. Cir. 2014)
Opinion by Circuit Judge Rogers
SeaWorld of Florida, LLC, operates a theme park in Orlando, Florida, that is designed to entertain and educate paying customers by displaying and studying marine animals. Following the death of one of SeaWorld’s trainers while working in close contact with a killer whale during a performance, the Occupational Safety and Health Review Commission found that SeaWorld had violated the general duty clause of the Occupational Safety and Health Act of 1970 by exposing the trainers to recognized hazards when working in close contact with killer whales during performances, and that the abatement procedures recommended by the Secretary of Labor were feasible. SeaWorld challenges the order with respect to one citation. Concluding its challenges are unpersuasive, we deny the petition for review.
On February 24, 2010, SeaWorld trainer Dawn Brancheau was interacting with Tilikum, a killer whale, during a performance before a live audience in a pool at Shamu Stadium in Orlando. Ms. Brancheau was reclined on her back on a platform a few inches below the water surface. Tilikum was supposed to mimic her behavior by rolling over. Instead, the killer whale grabbed her and pulled her off the platform into the pool, refusing to release her. She suffered traumatic injuries and drowned as a result of Tilikum’s actions.
The Secretary of Labor issued three citations to SeaWorld after an investigation by an Occupational Safety and Health Administration (“OSHA”) compliance officer. Only the second citation is at issue. It alleged two instances of a “willful” violation of the general duty clause for exposing animal trainers to the recognized hazards of drowning or injury when working with killer whales during performances. The first instance related to animal trainers working with Tilikum being exposed to “struck-by and drowning hazards” by being “allowed unprotected contact with Tilikum” while conducting “‘drywork’ performances on pool ledges, slideouts and platforms.” In SeaWorld’s terms, when trainers are out of the pool or on submerged ledges called “slideouts” in water no deeper than their knees, their interactions with killer whales are called “drywork.” Any interaction in deeper water is “waterwork.” * * * The second instance concerned animal trainers working with killer whales other than Tilikum who were exposed to struck-by and drowning hazards when they were “allowed to engage in ‘waterwork’ and ‘drywork’ performances with the killer whales without adequate protection.” * * * The Secretary proposed a penalty of $70,000.
* * * Observing that OSHA has “no specific standard” regulating employees working in close contact with killer whales, and that the Secretary had presented no evidence SeaWorld had a “heightened awareness of the illegality of its conduct” or manifested “plain indifference to employee safety,” the ALJ found that violations were “serious,” not “willful,” and imposed a fine of $7,000. * * * SeaWorld petitions for review of the general duty violation.
The general duty clause of the Occupational Safety and Health Act, provides: “Each employer [ ] shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” “. . . [T]his clause enables the Federal Government to provide for the protection of employees who are working under such unique circumstances that no standard has yet been enacted to cover this situation.” * * *
“To establish a violation of the General Duty Clause, the Secretary must establish that:
an activity or condition in the employer’s workplace presented a hazard to an employee,
either the employer or the industry recognized the condition or activity as a hazard,
the hazard was likely to or actually caused death or serious physical harm, and
a feasible means to eliminate or materially reduce the hazard existed.”
Tempering the range of potential remedies that might be imposed upon finding a violation of the clause, the court explained: “. . . ‘the Secretary must prove that a reasonably prudent employer familiar with the circumstances of the industry would have protected against the hazard in the manner specified by the Secretary’s citation.’”
SeaWorld contests only the second and fourth elements regarding recognized hazard and feasibility. * * * First, SeaWorld contends that the finding that it exposed its employees to a “recognized hazard” is unsupported by substantial evidence. Second, it contends that “when some risk is inherent in a business activity, that risk cannot constitute a ‘recognized hazard.’” Third, . . . SeaWorld contends that the Secretary failed to prove feasible abatement methods (or that SeaWorld had already implemented these measures), and that the ALJ failed to consider evidence these abatement measures present additional hazards and erred because eliminating close contact changes the nature of a trainer’s job. * * *
Whether a work condition poses a recognized hazard is a question of fact. Substantial evidence supports the finding that “drywork” and “waterwork” with killer whales were recognized hazards. Tilikum is a 32-year-old male killer whale with known aggressive tendencies who in 1991 killed a whale trainer at a marine park in Vancouver, British Columbia. SeaWorld had established special protocols for Tilikum, which prohibited “waterwork” and, among other things, required non–killer whale personnel and guests to stay five feet behind pool walls or three feet from Tilikum’s head, indicating that SeaWorld recognized the possibility of harm to people standing outside of the pool on land. Although “drywork” with Tilikum continued, SeaWorld limited it to a team of experienced trainers who used extra caution. The caution with which SeaWorld treated Tilikum even when trainers were poolside or on “slideouts” in the pool indicates that it recognized the hazard the killer whale posed, not that it considered its protocols rendered Tilikum safe.
As to other killer whales, SeaWorld suggests that close contact with these whales was not a recognized hazard because all whales behave differently and its incident reports help SeaWorld improve training. But SeaWorld’s incident reports demonstrate that it recognized the danger its killer whales posed to trainers notwithstanding its protocols. At the time of Ms. Brancheau’s death, seven killer whales were at the Orlando park. Even though SeaWorld had not recorded incident reports on all of its killer whales, a substantial portion of SeaWorld’s killer whale population had at least one reported incident. The ALJ also relied on the many comments by SeaWorld management personnel, including corporate curators of animal training, who described the need for caution around killer whales generally, not only around certain killer whales. Killer whales bit trainers’ body parts on several occasions (although not generally puncturing skin) and in 2006 a killer whale pulled a trainer underwater by the foot and submerged him repeatedly for approximately 10 minutes. Although this incident occurred during “waterwork,” substantial evidence supports the finding with regard to “drywork” as well. On numerous occasions, trainers fell or were pulled into the water, as later happened with Tilikum and Ms. Brancheau, or killer whales lunged out of the water toward trainers. These incidents constitute substantial evidence to support the ALJ’s finding that “drywork” was also a recognized hazard.
SeaWorld’s position is that working with killer whales was not a recognized hazard because its training and safety program adequately controlled the risk. To train its killer whales, SeaWorld uses “operant conditioning” to reinforce desired behaviors with food or other rewards. It also trains its employees who work with killer whales to recognize particular behaviors that it calls “precursors,” which indicate that the killer whales may act aggressively, and keeps detailed incident reports of when its killer whales had behaved aggressively or otherwise undesirably toward trainers, including pulling trainers into the pool. The Secretary presented evidence that the killer whales posed a hazard in spite of SeaWorld’s safety measures. On multiple occasions, including the death of Ms. Brancheau, SeaWorld’s incident reports indicated that the killer whales showed no immediate precursors of aggressive behavior or ignored SeaWorld’s emergency procedures designed to make them cease aggressive behavior. Statements by SeaWorld managers do not indicate that SeaWorld’s safety protocols and training made the killer whales safe; rather, they demonstrate SeaWorld’s recognition that the killer whales interacting with trainers are dangerous and unpredictable and that even senior trainers can make mistakes during performances, and the managers repeatedly urged caution in working with the killer whales. The evidence thus supports the ALJ’s finding that a recognized hazard existed, even beyond the impact of SeaWorld’s safety protocols. * * *
The remedy imposed for SeaWorld’s violations does not change the essential nature of its business. There will still be human interactions and performances with killer whales; the remedy will simply require that they continue with increased safety measures. SeaWorld itself has limited human interactions. After Ms. Brancheau’s death in 2010, SeaWorld ceased “waterwork” with all of its killer whales. It also imposed distance between trainers and Tilikum during drywork and, to a lesser degree, between other killer whales and trainers during drywork. These self-imposed limitations are relevant to the assessment of which aspects of SeaWorld’s business are essential and indicate that the Secretary’s remedy will not eliminate any essential element. SeaWorld does not assert . . . that a public perception of danger to its trainers is essential to its business. Nor has SeaWorld ever argued that limiting interactions in the way that the remedy requires would have a detrimental economic impact on its profits. * * *
To the extent SeaWorld maintains that close contact is integral to cleaning and caring for their animals (i.e., “husbandry”), and that it was arbitrary and capricious to find a recognized hazard in the performance context but not in the husbandry context, its position is unfounded. Contact during husbandry was not at issue before the ALJ or the Commission. Regardless, although some aspects of husbandry may require close contact, according to SeaWorld’s vice president for veterinary services, many procedures can be conducted in a medical pool with a lifting bottom that restricts the killer whale’s mobility, or can be performed from poolside behind a short wall. * * *
SeaWorld’s suggestion that because trainers “formally accepted and controlled their own exposure to . . . risks,” the hazard of close contact with killer whales cannot be recognized, contravenes Congress’s decision to place the duty to ensure a safe and healthy workplace on the employer, not the employee. This court has long held “this duty is not qualified by such common law doctrines as assumption of risk, contributory negligence, or comparative negligence.” * * *
The Secretary and the Commission could also reasonably determine that the remedy does not go to the essence of SeaWorld’s productions. SeaWorld has had no “waterwork” performances since Ms. Brancheau’s death in 2010, and it temporarily suspended “waterwork” after other incidents, such as the killing of a trainer by a killer whale in 2009 at a non-SeaWorld park in Spain. With distance and physical barriers between Tilikum and trainers during drywork, Tilikum can still perform almost the same behaviors performed when no barriers were present. The nature of SeaWorld’s workplace and the unusual nature of the hazard to its employees performing in close physical contact with killer whales do not remove SeaWorld from its obligation under the General Duty Clause to protect its employees from recognized hazards. * * *
[A]lthough this case is only about a single “entertainment show,” our [dissenting] colleague repeatedly characterizes this case as being about the “sports and entertainment industries.” No one has described SeaWorld’s killer whale performances as a “sport,” and a legal argument that the “sports industry” should not be regulated by OSHA can be raised when and if OSHA attempts to do so. * * * [O]ur colleague is simply wrong in saying that OSHA has “departed from tradition and stormed headlong into a new regulatory arena,” involving entertainment shows. In fact, this is hardly the first time that OSHA has regulated the working conditions of such shows. * * * Many traditional industries can be extremely dangerous to their employees: construction, metal pouring, logging, welding, firefighting, roofing, electrical power line installation, handling explosives. Yet these industries have been regulated pursuant to the Occupational Safety and Health Act, notwithstanding that employers could claim their employees were also “willing participants,” “even in the face of known physical risk,” or that the employees were taking part in “the ‘normal activities’ intrinsic to the industry,”
Our colleague’s main point appears to be that the Secretary and the Commission were arbitrary and capricious by failing to reasonably distinguish SeaWorld’s killer whale shows from the NFL and NASCAR. It’s all or nothing, the dissent suggests. Either OSHA must regulate SeaWorld’s killer whale shows and the NFL and NASCAR—or it cannot regulate any of the three because no rational distinction is possible. But SeaWorld offers nothing to show that it raised the NFL/NASCAR hypothetical before the Commission. * * * No principle of administrative law requires an agency to anticipate and distinguish a hypothetical that a party did not raise until its subsequent appellate briefs. Perhaps when squarely faced with that question OSHA will accept the dissent’s argument that . . . it cannot regulate sports regardless of statutory text because “Congress could not have intended” it. Perhaps OSHA will say . . . that physical contact between players is “intrinsic” to professional football in a way that it is not to a killer whale show. In any event, no principle of law requires a court, when reviewing a citation based on specific facts relating to one of several kinds of entertainment shows put on by a single employer, to reach beyond that citation and decide the hypothetical application of the statute to another industry. * * *
Furthermore, * * * had Congress intended all unsafe and unhealthy performances in the entertainment industry to be beyond the scope of employee protection, it could have included such an exemption in the Occupational Safety and Health Act, and it did not. * * * SeaWorld does not contest that it is an “employer” under the Act. Neither does SeaWorld point to anything in the Act or regulations that would require exemption of its shows, much less of all entertainment performances.
* * * Substantial evidence supports the ALJ’s findings that it was feasible for SeaWorld to abate the hazard to its employees by using barriers or minimum distance between trainers and killer whales, most notably because SeaWorld has implemented many of these measures on its own. When an employer has existing safety procedures, the burden is on the Secretary to show that those procedures are inadequate. The record evidence showed that SeaWorld’s training and protocols did not prevent continued incidents, including the submerging and biting of one trainer in 2006, the killing of a trainer by a SeaWorld-trained and owned killer whale in 2009 at an amusement park in Spain, and Ms. Brancheau’s death in 2010. SeaWorld employees repeatedly acknowledged the unpredictability of its killer whales. This record evidence supports the ALJ’s finding that existing protocols were inadequate to eliminate or materially reduce the hazard to SeaWorld’s trainer employees performing with killer whales.
Abatement is “feasible” when it is “economically and technologically capable of being done.” After Ms. Brancheau’s death, SeaWorld required that all trainers work with Tilikum from a minimum distance or behind a barrier, and “waterwork” ceased with all of its killer whales. . . . [I]mplementing the ordered abatement is feasible because it would involve extending these practices to all killer whales and into the future. As the ALJ noted, SeaWorld had not argued the Secretary’s proposed abatement was not economically or technologically feasible and had already implemented abatement for at least one of its killer whales and needed only to apply the same or similar protective contact measures it used with Tilikum to other killer whales. Consequently, the Secretary was not required to specify the precise manner in which abatement should be implemented. That the ALJ subsequently granted SeaWorld’s request for a six-month extension of the abatement deadline, in view of SeaWorld’s difficulty in scheduling two consulting experts, does not undermine the substantial evidence that SeaWorld could feasibly abate the hazard. SeaWorld does not dispute that the Secretary’s abatement measures would materially reduce, if not eliminate, the hazard killer whales pose to its employees during performances. * * *
Dissenting Opinion by Circuit Judge Kavanaugh
Many sports events and entertainment shows can be extremely dangerous for the participants. Football. Ice hockey. Downhill skiing. Air shows. The circus. Horse racing. Tiger taming. Standing in the batter’s box against a 95 mile per hour fastball. Bull riding at the rodeo. Skydiving into the stadium before a football game. Daredevil motorcycle jumps. Stock car racing. Cheerleading vaults. Boxing. The balance beam. The ironman triathlon. Animal trainer shows. Movie stunts. The list goes on.
But the participants in those activities want to take part, sometimes even to make a career of it, despite and occasionally because of the known risk of serious injury. To be fearless, courageous, tough—to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk—is among the greatest forms of personal achievement for many who take part in these activities. American spectators enjoy watching these amazing feats of competition and daring, and they pay a lot to do so. * * *
The broad question implicated by this case is this: When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves—that the risk of significant physical injury is simply too great even for eager and willing participants? And most importantly for this case, who decides that the risk to participants is too high?
In the first instance, the sports and entertainment industries regulate themselves, often through collaboration between management and participants, to ensure that the risks are at least known to all. * * * Sometimes Congress, state legislatures, or state regulators jump into the fray by prohibiting or otherwise regulating certain sports or entertainment activities. State tort law also looms as a significant constraint in most jurisdictions, particularly for allegedly known but unwarned-of risks to the participants, as the NFL has recently experienced. * * * But the Department of Labor, acting with a fair degree of prudence and wisdom, has not traditionally tried to stretch its general authority under the Act to regulate participants taking part in the normal activities of sports events or entertainment shows.
In this case, however, the Department departed from tradition and stormed headlong into a new regulatory arena. The Department issued a citation to SeaWorld that effectively bans SeaWorld from continuing a long-standing and popular (albeit by definition somewhat dangerous) show in which SeaWorld trainers play with and interact with whales. * * * Whether SeaWorld’s show is unreasonably dangerous to participants and should be banned or changed is not the question before us. The question before us is whether the Department of Labor has authority under current law to make that decision. . . . * * *
In the leading Pelron case, the Department of Labor had issued a General Duty Clause citation to Pelron Corporation, a manufacturer of liquid specialty chemicals, following a chemical explosion at one of Pelron’s manufacturing facilities. The Department alleged that the mere “accumulation” in Pelron’s facility of a potentially dangerous chemical constituted a recognized hazard that Pelron had failed to eliminate. But the Occupational Safety and Health Review Commission vacated the Department’s citation. In explaining why the mere presence of a dangerous chemical could not constitute a recognized hazard, the Commission stated: “Obviously, some industrial activities are by their very nature dangerous. To permit the normal activities in such an industry to be defined as a ‘recognized hazard’ within the meaning” of the General Duty Clause is “to eliminate an element of the Secretary’s burden of proof and, in fact, almost to prove the Secretary’s case by definition, since under such a formula the employer can never free the workplace of inherent risks incident to the business.” Pelron means that some activities, though dangerous, are among the “normal activities” intrinsic to the industry and therefore cannot be proscribed or penalized under the General Duty Clause. * * *
In the sports and entertainment fields, the activity itself frequently carries some risk that cannot be eliminated without fundamentally altering the nature of the activity as defined within the industry. Tackling is part of football, speeding is part of stock car racing, playing with dangerous animals is part of zoo and animal shows, and punching is part of boxing, as those industries define themselves. * * * Here, SeaWorld has decided that close contact between SeaWorld trainers and whales is an important aspect of its shows. * * *
Under the current statutory scheme, Pelron precludes the Department of Labor from entering the arena and altering the activities of the participants in those competitions or shows, whether it be the NFL or NASCAR or SeaWorld. The Department of Labor can no more tell the participants in a sports event or entertainment show that their activities are simply too dangerous to perform than it could tell the Pelron Corporation that its chemicals were simply too dangerous to produce. * * *
I take no position here on whether SeaWorld—or for that matter the NFL or NASCAR—should be subject to more stringent government regulation or liability, or otherwise should voluntarily make its activities safer. That policy question is not before us. My legal disagreement with the majority opinion boils down to one basic question: Who decides? Under current law, it is not the Department of Labor. I respectfully dissent.
Case Questions
What are the legal issues in this case? What did the appeals court decide?
What things must be shown to establish a violation under the general duty clause of the OSH Act? How are each of these elements satisfied in this case?
This case involves an unusual hazard faced by employees in a business that produces a unique form of entertainment. Legally speaking, should any of that matter? Should OSHA be able to regulate safety in the entertainment industry in the same manner as any other industry? Why or why not? If so, should this authority also extend to the realm of professional sports? Why or why not?
An undercurrent in this case is the claim that the regulation of safety by OSHA is interfering with the basic business model and product of SeaWorld. Is that true? Why or why not? In general, should OSHA be able to ban activities, substances, or work processes because they are too dangerous even if they are widely used in an industry? Order the closure of inordinately dangerous facilities? Why or why not?
Do you agree with the court’s decision? Why or why not?
Just the Facts
In February 2014, shooting began for Midnight Rider, a film based on the lives of the Allman brothers. The film was never completed. As the film crew set up to shoot a scene on an active train trestle owned by CSX Transportation, a freight train barreled through, killing a 27-year-old camera assistant and seriously injuring several other film crew members. The director and producers in charge of the film knew that the railroad tracks were in active use and that CSX had refused permission to film on the tracks. Film crew and cast members were not informed that CSX would not be on site and would not be controlling train traffic while they were filming on the tracks. Did the film company violate the OSHA’s general duty clause? Why or why not? Were the director and producers criminally responsible? Why or why not?
The Changing Workplace Ergonomic Hazards
Ergonomics deals with the fit between the physical demands of jobs and the physical abilities of people. Work tasks, equipment, and surroundings can pose hazards to employees when they entail such things as frequent use of force, lifting of heavy loads, repetitive motions, awkward postures, excessive standing in one place, vibration, and exposure to cold temperatures. These ergonomic risk factors can result in a variety of musculoskeletal disorders (MSDs), also referred to as repetitive stress injuries or cumulative trauma disorders. Particular types of MSDs include carpal tunnel syndrome, rotator cuff syndrome, epicondylitis (an elbow problem), trigger finger, low back pain, sciatica, and tendonitis. These conditions range in severity but can be painful and debilitating. MSDs constitute the lion’s share of recorded occupational illnesses (in contrast to injuries) and account for a significant proportion of workers’ compensation claims. Laborers, firefighters, freight handlers, nurses, nursing assistants, stock clerks and order fillers, production workers, and delivery drivers are among the occupations with the highest incidence of MSDs. A study by NIOSH of one particular type of production worker—poultry processing workers—found that fully 42 percent of the workers at a plant in South Carolina showed evidence of carpal tunnel syndrome. Not all MSDs are caused by work activities, but substantial evidence exists that many MSDs are work related and that ergonomic interventions in workplaces can reduce the incidence of MSDs.
OSHA’s efforts to develop an ergonomics standard are another classic illustration of the highly contentious and politicized standard-setting process. The agency started out in the mid-1980s by offering ergonomics training to employers. It issued voluntary guidelines for the meat-packing industry in 1990. In 1992, OSHA announced that it intended to develop an ergonomics standard (it issued an “advance notice of proposed rule making”). A draft standard was released in 1995, and as former OSHA head Charles Jeffress put it, “all hell broke loose.” OSHA made revisions and held numerous public hearings, but industry prevailed on its allies in Congress to attach riders to OSHA’s budget appropriations, prohibiting it from adopting an ergonomics standard. OSHA eventually issued an ergonomics standard in November 2000, requiring the establishment of ergonomics programs covering employees in manufacturing and manual handling jobs, and other jobs when an MSD was reported by a job occupant. Congress responded in early 2001 by invoking the then never-before-used Congressional Review Act of 1996 to repeal the ergonomics standard. The end result is that there is currently no specific OSHA standard addressing this major workplace safety and health hazard. However, OSHA has issued voluntary guidelines for preventing MSDs in a number of settings, including nursing homes, retail grocery stores, meat-packing plants, poultry processors, beverage distributors, foundries, and shipyards.
In the absence of an ergonomic standard, OSHA must rely on the general duty clause to address ergonomic hazards. However, despite the prevalence of MSDs, OSHA has issued only a handful of citations for ergonomic violations. In 2014, a poultry producer was cited for ergonomic violations, including subjecting workers to excessive force, repetitive motions, and awkward postures during the deboning process. The incredibly fast pace of the work—facilities are allowed to process as many as 140 birds per minute and are pressing the Agriculture Department to remove speed limits altogether—and the adverse conditions under which poultry processing workers labor (think cold, wet, slippery floors and sharp knives) no doubt contribute to the high rates of injury in this industry.
In an ergonomics case involving health-care workers, OSHA argued that the lifting and moving of patients was a workplace hazard that resulted in high rates of lower-back injuries among the employees of a nursing home chain. The Occupational Safety and Health Review Commission (OSHRC) agreed that this was a “recognized” hazard. Even though the chain’s work practices were similar to those found throughout the industry, it had unusually high injury rates relative to the already high rates in the industry, a large body of scientific evidence existed pointing to the lifting of patients as a hazard, management was aware of and clearly concerned about the large number of workers’ compensation claims that stemmed from such injuries, and the chain had adopted measures intended to lessen the problem. The OSHRC also ruled that the ergonomic injuries suffered by these employees—injuries that were often long lived and debilitating—constituted the type of “serious physical harm” needed to invoke the general duty clause. However, the case was remanded to determine whether feasible means of abating the hazard existed. While the case was on remand, the parties settled. The nursing home chain agreed to provide more training to employees and to purchase more mechanical lifting devices, but it did not admit to a violation of the OSH Act.
How Is the OSH Act Enforced?
Unlike most other employment laws, the OSH Act is enforced not only by responding to employee complaints of violations but also by OSHA going out to workplaces on its own initiative and conducting inspections to determine whether employers are complying with the law. At the same time, enforcement is not effective without the active involvement of employees or their unions bringing hazards to OSHA’s attention, participating in the inspection process, and occasionally taking enforcement into their own hands.
Inspections and Citations
OSHA has limited resources. In fiscal year 2017, federal OSHA conducted 32,396 inspections. State safety and health agencies conducted an additional 43,551 inspections. If this sounds like a sizable number of inspections, consider that U.S. workplaces number in the millions. OSHA has to carefully prioritize when selecting sites to inspect. In order of priority, OSHA inspects workplaces where it has reason to believe there is imminent danger of death or serious physical harm to employees where it is investigating a catastrophe or fatal accident (such as the cases described in the following “Clippings” feature), where it has received employee complaints of alleged violations, where the workplace was selected as part of a planned effort to conduct inspections in dangerous industries (“programmed inspections”), and where the agency wants to determine whether prior violations have been corrected (follow-up inspections).
Most OSHA inspections are unannounced. When OSHA inspectors (compliance officers) arrive at workplaces, they first locate and present their credentials to the owners or other people in charge. The OSH Act empowers OSHA inspectors to enter workplaces without delay and at reasonable times to examine records, inspect conditions, and question individuals. However, the Supreme Court has determined that the Fourth Amendment rights of employers to be free from unreasonable search and seizure permit them to refuse entry to OSHA inspectors without a search warrant. This right of refusal does not apply if a clear emergency exists, the hazard in question is in plain view, or an authorized party consents to entry (even though a co-owner disagrees). Refusing entry is at best a delay tactic. OSHA can generally obtain a warrant from a court by establishing probable cause of a violation (e.g., the fatalities that occurred or credible employee complaints) or by showing that selection for a programmed inspection was based on reasonable administrative criteria (e.g., located in a dangerous industry). An employer with a long history of antagonism toward OSHA and multiple previous violations was slapped with a civil contempt of court penalty and required to pay the government’s legal fees when it refused to allow OSHA to fully inspect its facility despite the agency having obtained a warrant to do so.
Clippings
OSHA cited Ajin USA, an auto parts supplier for Hyundai and Kia, for 20 alleged willful violations of the OSH Act and proposed $2.5 million in fines. In a horrific incident, a 20-year-old woman was killed on the job just two weeks before her wedding day. She was inside of a robotic machine clearing a sensor fault when the machine restarted and she was crushed. Many of the alleged violations at the plant involved inadequate lockout/tag-out energy control procedures. These procedures are used to prevent precisely the kind of event that took the life of this employee by ensuring that dangerous equipment cannot be restarted while maintenance or repairs are being performed. The OSHA director opined that the company’s main customers, Kia and Hyundai, shared responsibility for safety problems at the plant, insofar as their high production demands resulted in excessive hours of work and led this supplier to “cut corners on safety, at the expense of workers’ lives and limbs.”
SOURCE: Chris Marr. “Alabama Auto Factory Faces $2.5M Fine after Worker’s Death.” Labor Relations Week 30 (December 21, 2016), 2191.
Trench collapses during construction and excavation, although “completely preventable” if contractors follow OSHA procedures, remain all too common and often result in fatalities. In June 2016, a 33-year-old Ohio man was killed in a trench collapse, one of twenty-three such incidents nationally during the year. In this case, the employee had survived a partial trench collapse earlier that day, and another collapse a month earlier at a different construction site run by the same company. OSHA cited the company for failing to provide proper protection and training for employees working in and around trenches. It proposed a fine of $274,359.
SOURCE: Christopher Brown. “Trench Deaths Bring Renewed Focus to Excavation Hazards.” Labor Relations Week 30 (November 30, 2016), 2081.
An inspection typically begins with an opening conference, in which the circumstances of the inspection are explained by the OSHA compliance officer. An employer representative is entitled to accompany the compliance officer during a workplace inspection, but employers are prohibited from intimidating or interfering with compliance officers as they perform their jobs. While touring workplaces, compliance officers might write down observations, take photographs, take instrument readings, and ask questions of employees. Apparent violations are pointed out. Although some violations can be corrected on the spot, this does not necessarily preclude issuance of citations for those violations. At a closing conference, the compliance officer goes over the observed violations and the OSHA appeal process.
Citations or fines are not levied by inspectors. Instead, the directors of OSHA area offices issue citations and penalties after reviewing inspection reports. Citations for safety violations indicate the nature of the violations, the OSHA standard(s) violated, the monetary penalties associated with the violations, and the amount of time that the employer has to correct the problems (the abatement period). Fines vary according to how severe the violations are and whether they are deemed willful (intentional). Although the OSH Act provides for limited criminal penalties (a maximum of $20,000 in fines and one year in jail, regardless of the number of violations) in cases where employers willfully violate standards and these violations result in employee deaths, criminal penalties are only rarely sought. In one of those rare cases, the former president of a chemical company pleaded guilty to violating the OSH Act by failing to protect workers from exposure to the poisonous gas hydrogen sulfide (two drivers died in just a matter of months) and was sentenced to a year in jail. Stronger enforcement may require OSHA to team up with other federal agencies, particularly the Environmental Protection Agency (EPA), that have the capability to impose more severe criminal sanctions against employers. Employers that subject their employees to serious workplace hazards are often equally poor stewards of the environment.
Clippings
Faced with an impending OSHA inspection, MP Global Products, a Nebraska flooring products manufacturer, tried an interesting ploy. According to OSHA’s area director in Omaha, Jeff Funke, the employer “shut down an entire production line, turned the lights off and herded employees into the back room where they were instructed to remain quit during OSHA’s inspection. . . . This was a willful attempt to prevent inspectors from discovering numerous machine safety violations in the plant.” Needless to say, OSHA was neither amused nor deterred. Its inspection found numerous machines that presented amputation hazards due to the lack of safety guards, inadequate training, obstructed aisles, and numerous electrical safety hazards including exposed wires. OSHA cited the company for twenty different violations and proposed a fine of $244,000.
SOURCE: Christopher Brown. “Plant Hid Workers But Hazards Apparent, OSHA Says.” Daily Labor Report 170 (September 2, 2015), A-12.
Copies of citations received must be posted in the workplace near where the violations occurred and for three working days or until the violations are corrected, whichever is longer. Employers have the right to challenge the existence of violations, penalties, and/or the length of abatement periods. Employers have fifteen days following the receipt of a citation to contest the citation (i.e., file a written Notice of Contest with the OSHA area director who transmits the case to the OSHRC). Although all violations should be corrected promptly, employers are not legally required to correct alleged violations until their appeals have been heard and the OSHRC has issued a final order. Besides appealing to the OSHRC (and sometimes, subsequently, the courts), employers can petition OSHA to modify abatement schedules or meet with OSHA area directors to discuss settlements. The ability to put off fixing dangerous conditions until the OSHRC appeals process is completed provides employers with considerable leverage when negotiating with OSHA over citations.
Employee Role in Enforcement
Because OSHA visits only a minuscule number of workplaces at its own initiative, employee reports of potential hazards are critical to enforcement. Not surprisingly, some employers take a dim view of such complaints. OSHA does not reveal the identities of employees who make safety complaints, but it does inform employers when inspections are prompted by complaints and provides copies of written complaints (with names deleted). In one case, a machine operator complained to coworkers and her boss about a chemical spray emitted by her machine. She then filed a formal complaint with OSHA, prompting an inspection. The employer pressed the OSHA compliance officer for the identity of the complainant and expressed annoyance when it was not divulged. Three days later the complainant was fired. The company said that the termination was for tardiness, but it had ignored violations by other employees. The court concluded that the employee was retaliated against in violation of OSHA. It was not necessary to show that the employer had certain knowledge of the identity of the complainant to establish a causal connection between engaging in protected activity and suffering adverse employment consequences. Employers are prohibited from retaliating against employees for making complaints about safety problems, contacting OSHA, filing complaints with OSHA, speaking with inspectors, or otherwise participating in the enforcement process.
Clippings
OSHA filed a retaliation lawsuit on behalf of a receptionist at a hair salon. The woman was fired after she informed her coworkers that a hair straightener used in the salon contained formaldehyde and gave them an OSHA fact sheet on the hazards of formaldehyde exposure. The salon eventually settled the lawsuit, agreeing to provide back pay and compensatory damages, and to expunge the termination from the employee’s personnel file.
SOURCE: U.S. Occupational Safety and Health Administration. “Bronx Hair Salon Must Pay $165K to Fired Employee Who Warned Co-workers of Formaldehyde Hazards.” OSHA Regional News Release, Region 2 (December 1, 2015) (www.osha.gov).
Employees’ lives, health, and well-being are at stake in dangerous workplaces. Under the best of circumstances, there is delay between when OSHA is informed of potential hazards and when any inspections occur. Employees who refuse to work under dangerous conditions have some legal protection from termination or other punishment for their refusal to work. For one thing, walking off the job because of serious safety problems can constitute protected concerted activity under the National Labor Relations Act (NLRA). Also, a section of the NLRA specifically permits employees to stop work because of “abnormally dangerous” conditions without being in violation of contractual no-strike clauses. The nonretaliation provisions of the OSH Act have been interpreted as protecting refusals to engage in very dangerous work, and the Supreme Court has concurred with this interpretation. However, such refusals are protected only where the hazard poses a threat of serious injury or death, the threat is too immediate to rely on the normal enforcement process, and the employer has been informed but has not corrected the hazard. Employers should take employee safety complaints seriously and must not punish employees for refusing to work under conditions that pose a serious and imminent threat to their health.
An employee representative must be allowed to participate in the opening conference and to accompany the compliance officer during an inspection. The employee representative must not be chosen by the employer. As a practical matter, this right is most often exercised when employees have union representation. However, OSHA inspectors are supposed to confer confidentially with a “reasonable number” of employees when there is no employee representative available to participate in an inspection. Employees can request informal reviews in cases where OSHA declines to issue citations, but only the amounts of time that employers are given to fix problems can be formally contested by employees. Employees are responsible under OSHA for following health and safety rules, although employees who fail to do so are not subject to any type of enforcement action. The reason is that employers already have available the means of obtaining employee compliance (e.g., discipline, training, supervision).
