When Failure to Provide Fall Protection Becomes a Willful OSHA Violation

AJP Construction Inc. was the concrete subcontractor for a high-rise construction project in Hoboken, N.J. In response to a call reporting fall-related accidents and other safety hazards on the project, the Occupational Safety and Health Administration began an investigation of AJP’s safety practices. While the investigation was pending, an AJP employee, James Sherengo, fell to his death.

Sherengo and two other employees were working on an outrigger scaffold on the seventh floor. Such scaffolds consist of a platform that extends beyond the wall of the building. The platform is supported by two outrigger beams, which are secured inside the building. A crane hit construction materials hanging over the edge of the twelfth floor, and they fell onto the scaffold, causing Sherengo to fall.

In response, OSHA issued several citations to AJP for violations of regulations promulgated under the Occupational Safety and Health Act, 29 USC §651, et seq. OSHA found that AJP willfully violated regulations by allowing Sherengo to work without fall protection equipment and by allowing a scaffold without guardrails to be used. It found other regulations were violated because the construction materials on the twelfth floor were neither properly secured nor placed away from the edge of the building. OSHA also cited AJP for: failing to have a properly qualified supervisor present during erection of the scaffold; failing to construct the scaffold in accordance with a professional engineer’s design; allowing employees untrained in recognizing the hazards associated with this type of scaffolding to work on it; and failing to protect employees against the unguarded edge of the building.

OSHA citations are classified as not serious, serious or willful, with the penalties increasing with the severity. OSHA characterized AJP’s violations as willful, thus subjecting the subcontractor to substantial penalties.

AJP contested the citations before the Occupational Safety and Health Review Commission, which appointed an administrative law judge (ALJ) to conduct an evidentiary hearing. AJP did not dispute that the scaffold lacked guardrails or that the employees wore insufficient fall protection equipment. Rather, AJP argued that it lacked the level of knowledge required for a violation.

The citations were affirmed by the ALJ. AJP filed a petition for review with the Commission, which declined to review the decision. AJP then appealed to the U.S. Circuit Court of Appeals for the District of Columbia.

In its appeal, AJP challenged the ALJ’s decision with two arguments: Substantial evidence did not support the ALJ’s finding that the violations were willful and the safety regulations at issue failed to give AJP fair notice of impermissible worksite conditions, thus violating AJP’s Fifth Amendment due process rights.

The Court of Appeals affirmed. AJP Construction, Inc. v. Secretary of Labor, 357 F.3d 70 (D.C. Cir. 2004).

In challenging the willfulness determination, AJP argued that it lacked the level of knowledge necessary to sustain a violation and a finding of willfulness. It pointed to testimony by its employees that the workers on the platform had been issued fall protection equipment, had been told to use it and had followed these instructions except for the day of the accident. However, the court noted, an employee of the general contractor testified that he had warned AJP in writing and orally that its employees were working on scaffolds without adequate protection. Also, the two surviving employees from the scaffold told an OSHA inspector that when they asked their foreman about using fall protection equipment, he simply told them not to “go out too far” and to be careful. The Court of Appeals found AJP knew of the violations.

The court acknowledged that evidence of AJP’s knowledge was disputed but concluded that when such inconsistencies are resolved by an ALJ based on credibility determinations formed during administrative proceedings, those determinations must be respected unless patently unsupportable. Regarding willfulness, the court noted that prior cases held that willfulness could be established by showing actual awareness or by showing that “if [the violator] were informed of the rule, he would not care.” Brock v. Morello Bros. Construction Inc., 809 F. 2d 161, 164 (1st Cir. 1987).

In finding the requisite indifference, the court pointed to prior fall protection citations issued to AJP on this and another project and warnings issued to AJP on this project. The court rejected AJP’s claim that it had a stringent fall protection plan, noting that the four-page, handwritten plan was incomplete, ineffective and unenforced. Reviewing the record from the proceedings below, the court found the ALJ’s decision to be amply supported. It sustained the finding of willfulness, finding that AJP had the necessary state of mind for a willful violation.

AJP also argued that OSHA’s scaffolding regulations were broad and exceedingly vague and that they thus violated Fifth Amendment due process protections. The court found that the challenged regulations were sufficiently clear and even included an illustration of an outrigger scaffold, putting AJP on notice that the OSHA regulations applied to AJP’s scaffold. Due process guarantees are satisfied if a regulated party can identify with reasonable certainty the standards with which the agency expects it to conform, court held. It found that the illustration gave AJP fair notice of the regulations.

Wilcox is an attorney in the San Francisco office of Thelen Reid & Priest LLP. He can be reached at (415) 369-7760 or at jwilcox@thelenreid.com.

Was this article valuable?