Our next two installments will be somewhat in the nature of a “review lesson.” We’ll look at several 2006 decisions of the Commission, as they underscore some of the issues addressed in recent columns here.

The Smoot Construction case is a straightforward reminder of issues and arguments I’ve presented in this space over the past year. A construction employer was cited for three “Serious” OSHA violations, two of them being the failure to fully plank a scaffold (29 C.F.R. ¬ß 1926.451(b)(1)), and failing to fully protect the side walls of a trench (29 C.F.R. ¬ß 1926.652(a)(1)).

Off the bat, we see that the violations in Smoot Construction relate to Public Enemies Nos. 1 and 2 in construction safety: fall hazards, and insufficiently protected trenches.

Scaffold platforms, of course, are required to be fully planked or decked between the front uprights and the guarded supports, each unit to be installed so that the space between adjacent units, and the space between the platform and uprights, is no more than one inch wide.

There is an exception where the employer can demonstrate that a wider space is necessary (such as to fit around uprights, when side brackets are used to extend the width of the platform).

A further exception is for “platforms used solely as walkways or solely by employees performing scaffold erection or dismantling.”

The OSHA inspector found a 9-1/2″ opening in the back of one scaffold on which carpenters were working in a stairwell. He found also a two-foot opening on a scaffold in a second stairwell.

The employer did not dispute that the platform openings existed, but sought refuge in the exception for platforms used for performing scaffold erection or dismantling. The employer acknowledged that its employees were performing form work while standing on the platforms, but argued that they were engaged also in the “fluid process” of erecting a scaffold: the form wall was erected, the scaffold was set, the second panel of the form was added and the scaffold was then raised to the next level.

Both the ALJ and the Commission rejected this argument. The exception, by the clear terms of the regulation, applies only where the platform is used solely to perform scaffold erection or dismantling (or solely as a walkway). I think it was an easy matter for the ALJ and the Commission to conclude that the dual use of the platforms — to do form work in addition to scaffold erection — precluded taking advantage of the exception.

This outcome recalls a remark I made here some months back: in litigating OSHA violations, I try to avoid legal defenses as flimsy as this one. When caught “dead to rights,” generally the client is better served by pursuing a quick settlement (and, perhaps, a reduction in the severity of the violation, or a reduction of the monetary penalties).

Usually, in the absence of fatalities or “willful” violations, OSHA’s monetary penalties are less than the legal fees incurred in contesting violations, and taking them to trial before an ALJ. Generally, in most instances in which it is worthwhile to incur the costs of a contest, it’s due to taking the long view, which takes into account the effect that potential future citations, in combination with the present ones, might have on your company’s eligibility for public work, insurability, and the like.

Putting OSHA to the trouble and expense of litigating a defense without a respectable legal basis (which category includes those that are contrary to the plain language of the regulations) will rarely benefit you in terms of your current citation — the ALJs aren’t stupid — and it can’t ingratiate you with OSHA, the ALJ or the Commission if (when) you have another citation, a year or two from now.

Every lawyer, as you know, wants to appear to be a hard-nosed fighter (and to earn a fee) but keep in mind that an OSHA contest is seldom a one-off affair. You, and your counsel, will likely be seeing OSHA —and possibly even the same ALJ — at some future time. I’m not urging lawyers to forego all legal defenses to OSHA violations as might be difficult or novel, but it’s a good idea to be judicious.

Certainly, you want OSHA to view you as a safety-conscious employer. As OSHA takes seriously its protective mission seriously, it’s in your interest (and your lawyer’s interest) that your lawyer be regarded by OSHA as a professional who is respectful of the agency and regulations, not one who will waste client funds and OSHA’s resources, in litigating issues that have minimal or no support.

The additional, trenching violation in Smoot Construction involved employees of a subcontractors working in a trench 9 feet deep, 8-1/2 feet wide at the top, and 3 feet wide at the bottom in the area in which the employees were working. The dimensions of the trench were not disputed; in unstable Type C soil, the trench would have had to have been 13 or 14 feet wide at the top to be properly sloped.

Smoot’s “defense” on this count was to allege that it had shifted to its subcontractor all responsibility for OSHA compliance for the excavation in question. If you remember my article some months back concerning the “Multi-Employer Rule,” you’ll recall that, where the general contractor could reasonably be expected to prevent or detect and abate the violations by its subcontractor, by reason of its supervisory authority and control over the worksite, it will be held liable for the violation, even if its own employees are not exposed to the hazard(s) in question.

Since Smoot’s subcontract authorized it to correct unsafe conditions created by its subcontractors (and to backcharge them for doing so) and its safety superintendent testified that, if anyone saw a safety infraction by a subcontractor “they come directly to me,” this defense likewise failed.

Having exhorted my readers to show respect for OSHA and its regulations, before closing this installment I should mention the recent case of Roy’s Construction, Inc. In that case, an employer at a jobsite in the U.S. Virgin Islands was issued 3 citations. The employer filed its notice of contest outside the 15 working day period specified by the Act, and sought relief from final judgment under a provision of the Federal Rules of Civil Procedure. The Chief Administrative Law Judge granted the employer’s request for relief, and ordered the Secretary of Labor to file a complaint within 20 days.

The Secretary, however, took the position that the Chief ALJ’s decision was clearly erroneous, and refused to file her complaint, arguing that such refusal was required, to preserve the right to appeal.

Under 29 C.F.R. ¬ß 2200.101(a), when a party fails to proceed “as provided by [the Commission’s] rules or as required by the Commission or Judge, he may be declared to be in default either on the initiative of the Commission or Judge,” after being afforded an opportunity to show cause why he should not be held in default. By refusing to file her complaint, the Secretary in Roy’s Construction failed to comply with rules of the Commission, and the ALJ’s order.

This, the Commission found, had left the ALJ with only two choices: he could “bend to the will of the Secretary” and dismiss the employer’s notice of contest, or vacate OSHA’S citations against the employer. The ALJ chose the latter option, dismissed the OSHA citations, and the Commission on appeal upheld him, finding that the sanction of dismissal — against the government! — was not an abuse of discretion.

It’s a fundamental rule of law concerning administrative agencies such as OSHA that courts will give not uncritical, but nevertheless substantial, deference to the agency, as it is presumed to be highly knowledgeable in interpreting the regulations it is charged by law to enforce. The playing field, therefore, is not — and it’s not supposed to be — altogether level, on substantive regulatory matters.

As to the fairness of OSHA’S procedures, however, while no doubt bad decisions come down from time to time, the employer, litigating against a government agency, should not consider that it’s confronting a stacked deck. In Roy’s Construction, certainly, and probably in the great majority of cases before the ALJs, the government, no less than private employers, is required to show respect for the system Congress created, and to observe the procedural rules.

While no one, and no dispute resolution system, is without flaw, in nearly every case, whatever the outcome, it’s a fair expectation that the respect and the reasonableness I urge my clients to observe will be experienced as a two-way obligation.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.

Our last installment discussed the importance of, and techniques for, safety training for, the construction workforce that today includes large numbers of immigrants and workers for whom English is not their first language. The importance of effective safety training is underscored by a controversial recent decision by the Court of Appeals in Albany, which holds that undocumented aliens suffering personal injuries on the job are not barred (on account of their immigration status) from recovering damages in the nature of lost earnings.

Reported under the title of Balbuena v. IDR Realty LLC are two cases: that of Balbuena (in which the First Department in Manhattan had narrowed a lower-court holding, and restricted the alien’s lost earnings claims to what he might earn in his home country) and the Majlinger decision (from the Second Department in Brooklyn, which had reversed a trial-court decision which had forbidden the recovery of any lost wages). Balbuena, a Mexican, entered the United States unlawfully, and fell from a ramp while pushing a wheelbarrow on a construction site. He alleged that his injuries rendered him unable to work.

Majlinger, a Pole who overstayed his travel visa, was standing on a scaffold installing siding on the exterior of a building, when the scaffold collapsed, causing his injuries. Neither of these plaintiffs was authorized to work in the United States.

In Majlinger, the trial court granted summary judgment for the defendants, based on Hoffman Plastic Compounds, Inc. v. NLRB, a 2002 decision by the U.S. Supreme Court that held that an undocumented alien, who provided fraudulent papers to obtain employment, could not be awarded back pay for work not performed as a result of an employer’s unfair labor practice. The Appellate Division, Second Department, reversed, holding that New York tort law is not pre-empted by federal immigration law, because neither federal statutes nor the Hoffman decision prohibit an undocumented alien from recovering lost wages in a personal injury action.

In Balbuena, the trial court’s initial holding was essentially like that of the Appellate Division, Second Department, in Majlinger, but the Appellate Division, First Department, modified, to the extent of dismissing Balbuena’s claim for lost earnings, to the extent it sought damages based on wages he might have earned in the United States.

Having accepted appeals in both cases in order to resolve the conflict, the Court of Appeals recounted how Congress (after many years of essentially ducking the issue of unauthorized employment) had incorporated into the Immigration Reform and Control Act of 1986 (“IRCA”) employer sanctions but — although criminalizing the presentation of false documents to establish lawful status — otherwise did not make it a crime for undocumented aliens to be employed without authorization.

The Court of Appeals then discussed various types of “federal pre-emption,” or circumstances in which federal laws will take precedence over inconsistent state laws.

“Express” pre-emption clearly did not apply, as IRCA contained no statement that it intended to pre-empt all legislation by the states regarding workplace safety and the right of employees to recover lost wages. The defendants had argued for “field pre-emption,” or a finding that the expansiveness of the Congressional scheme left no room for state legislation. “Certainly IRCA and related statutes thoroughly occupy the spectrum of immigration laws. But there is nothing in those provisions indicating that Congress meant to affect state regulation of occupational health and safety, or the types of damages that may be recovered in a civil action arising from those laws.

The Balbuena opinions (both the majority and the dissent) therefore focused on the closer question of whether “conflict pre-emption” might apply, or whether an award for lost wages would conflict with or erode the objectives of IRCA sufficiently to surmount the general presumption against pre-emption.

The discussion of pre-emption in these cases led inevitably to the scope of the U.S. Supreme Court decision in Hoffman. The majority in the Court of Appeals (the vote was 5 judges in favor of permitting undocumented aliens to recover lost wages, and 2 against) stressed that the Hoffman decision had relied largely on the alien’s commission of a crime, in tendering false documentation to obtain legal work authorization status. By way of distinction, neither Balbuena nor Majlinger had committed any crime (although their employers may have done so, by failing to verify their employment eligibility).

Although the defendants in Majlinger pointed out that they were not the plaintiff’s employer, but merely the owners of the property, contractors or their agents (a distinction the dissenters found significant) the majority pointed out that Labor Law ¬ß¬ß 240(1) and 241(6) impose nondelegable safety duties, and that it would be impermissible to allow defendants to avoid paying damages on the ground that it was the employer who had violated IRCA.

Perhaps the most compelling argument by the majority was that Congress had “expressly indicated that IRCA was not intended to undermine existing statutory labor protections.” Limiting lost wages claims by undocumented aliens would, moreover, lessen employers’ incentive to comply with the Labor Law, and indeed make it more financially attractive to hire undocumented aliens.

In rejoinder to the dissent’s view that it was “unseemly” in effect to permit parties to recover on the basis of illegal transactions, the majority stated that what they found “unseemly” was the notion that rewarding employers who fail to verify employees’ authorization to work in the United States, as required by IRCA, while at the same time denying relief to a worker injured as a result of a workplace violation of state labor laws.

This last remark suggests what is missing in the dissent: a frank recognition of the astounding ineffectiveness of IRCA (and its rarely-enforced employer sanctions) to curb the explosion in the number of unauthorized aliens employed in the United States. That defect notwithstanding, the dissent in Balbuena does make points that are not readily refuted.

Perhaps the strongest point of the dissent is that, however the same might be rationalized, the lost wages in question are undeniably the fruit of unlawful employment, and the courts have no business in aiding the purposes of illegal transactions. “The courts,” argued the dissent, “show insufficient respect for themselves and for the law when they help a party to benefit from illegal activity.”

The majority decision, while authorizing a jury to “consider immigration status as one factor in its determination of the damages” disapproved the First Department’s holding in Balbuena as would have limited lost wages to what the plaintiff could earn in his home country. The dissent, not unreasonably, equates this with telling juries that “a violation of the law is only as important as you want it to be” and that “the plaintiff’s damages depend on his chances of getting caught; the more likely he is to evade the authorities, the more damages you may award.”

The dissent also argues compellingly in reminding us that plaintiffs are required by law to mitigate their damages, which in the case of workplace injuries means working (if only in less strenuous activities) as one’s physical condition allows. As the plaintiff who fails to mitigate will suffer a reduction in damages, the dissent rightly asks:

Is a plaintiff in a case like these . . . required to mitigate by seeking alternative illegal employment? May he avoid a reduction in his damages by declaring that he has decided, belatedly, not to seek any job for which he may not lawfully be hired? It is surely unfair to defendants to hold that lost illegal wages may be recovered, but that only legal wages may be considered in mitigation; yet it also seems intolerable to hold that the law will punish a plaintiff for failing to violate the law.

Although the dissent argued that its foregoing rationale obviated the necessity to reach the pre-emption issue (and the scope of Hoffman) the dissenters would nevertheless hold that Hoffman should control, and that the distinction offered by the majority (i.e., that the injured plaintiffs, unlike the undocumented alien in Hoffman, had not committed a crime) was unpersuasive. Although there are instances, the dissenters allowed, in which a case in which a lesser offender is suing a greater one may qualify for an exception to the general rule that lawsuits based on illegal transactions will not be countenanced, the correct inquiry is not whether the plaintiffs before the court committed a crime, but whether awarding them lost earnings undermines IRCA’s policy that undocumented aliens may not be employed in the United States.

Hoffman, the dissenters in Balbuena pointed out, had specifically referred to both of the possible ways in which an undocumented alien can obtain employment:

Either the undocumented alien tenders fraudulent identification . . . or the employer knowingly hires the undocumented alien in direct contradiction of its IRCA obligations.

Accordingly, the dissenters concluded, permitting the plaintiffs to recover lost earnings “stands as an obstacle to the accomplishment of the full purposes and objectives of Congress” as expressed in IRCA, and New York’s labor laws (to the extent that they permit such an outcome) are pre-empted.

The majority and dissenting opinions in Balbuena underscore the courts’ difficulties in doing justice to injured workers, while striving to maintain some respect for laws that are not being enforced, and (it appears) are not going to be enforced, by and large, anytime soon. From your perspective, as a construction industry employer, even if you never directly employ undocumented workers, it’s entirely possible that your subcontractors can and do. Since injuries to undocumented aliens can result in liability to your business, a project-wide effort to effectively ensure that safety lessons are learned is essential.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements. 

Last month, we looked at the extent and consequences of drug and alcohol abuse in the construction industry, and concluded that if you don’t think this threatens your company, you’re probably wrong.

Your company needs a substance abuse program, which ideally should include: a drug-free workplace policy, supervisor training, education, testing, and employee assistance. It costs nothing to proclaim a policy, but drug testing (and employee assistance) can strain your budget.

Looking at broader efforts to curb drug use, one can’t help noticing that decades of spending hundreds of billions of dollars, exploding prison populations, and chest-beating about “zero tolerance” has produced only modest, and far from cost-effective, results.

What, then, about workplace drug testing? Is it effective? Economical? Should a construction employer — particularly, one for which the cost is significant — make that investment? What are the benefits and limitations?

Even if you’re skeptical about prohibition as an effective policy, you no doubt concur that your jobsite is a terrible place for people who are high. Even if you question whether weekend drinking or marihuana use should lead to the loss of employment, given the built-in hazards of running a construction site, you have an interest (maybe even an obligation) to discourage and detect the use of the most potent drugs, such as crystal meth, which have a high potential for addiction, impaired judgment, and disordered, or even violent, behavior.

If safety is your top objective, the legality of particular substances, or how their use is depicted by Hollywood and on TV, cannot be your primary concern. There are almost too many substances to keep track of, and they vary as to the impact that they have on the user’s ability to work safely; social and even medical awareness of them as a substance abuse problem; their capacity for compulsive use, and as causes of users’ becoming dependent (or increasing their use to dangerous levels); the ease and expense of testing for them; their availability; the likelihood that users will steal from the jobsite and fellow employees to purchase their drug of choice; and the reliability of existing tests in identifying them.

Thus, all substances that can be tested for are not created equal. A majority of the adult population uses alcohol, which is legal. Binge drinking in the 18-to-25 age group is a growing worry, and no street drug comes anywhere close to alcohol, in terms of negative public health and economic impacts.

However, while most construction contracting company owners probably don’t use crystal meth or crack cocaine, many like a couple of beers after work, drinking together after work or at social functions is not just tolerated but expected, and most have used alcohol to excess now and then. Does widespread acceptance of alcohol reduce its status as a huge public health and workplace safety problem? No, but while you can certainly prohibit on-the-job drunkenness, you probably can’t insist that your entire workforce swear off alcohol entirely.

In addition to such difficulties as there be in fashioning policies that you and your employees will agree are in their interest, while treating the objectively more dangerous substances as such, there are the problems of prescription, “designer,” and off-the-beaten-track drugs.

Americans, as a group, are more highly-medicated than in times past. Many take mood-altering drugs by prescription, or even narcotics such as methadone, as part of a valid medical program to curb their addiction. It may be legally problematic to discharge a methadone patient — but since the substance much resembles heroin, and may indeed impact the patient’s safe performance of his job, should you encounter such a situation, you probably need your lawyer and your consulting doctor talking with your employee’s lawyer and physician.

Warnings not to combine some widely-prescribed medications with alcohol may be understated, to avoid harming the sales of (for example) some antidepressants and other drugs that carry little or no social stigma. One prescription sleep medication thought to be safe has lately come under suspicion, as having contributed to automobile accidents occurring the day following use. Can you test for that? You may know that steroids taken by athletes can damage joints and the liver, and cause an increased risk of heart disease, stroke, and some cancers. Did you know that steroids can also cause dizziness, mood swings, anger, depression, aggression and hallucinations?

Drug testing has a part to play in curbing the safety risks associated with substance abuse by people employed in construction. It’s a mistake, however, to think that if you test for drugs, and fire anyone who tests positive for anything, you will succeed in putting an end to substance abuse in your workforce.

Reality is, as usual, more complex. For example, while most drugs pass out of the system within 3 days or less, marihuana, being fat-soluble, leaves traces that can be detected for a much longer time. Thus, you may feel you’ve struck a blow for your drug-free workplace after firing Employee A following his positive test for marihuana, although he may have used it while on vacation two weeks before. Possibly, this employee worked for you for years, without once being “stoned” on the jobsite.

You could remain blissfully unaware that Employee B is on the road to becoming a chronic user of crystal meth (a highly dangerous and addictive drug associated with paranoia and violent behavior) because your drug testing company views meth as a problem only in other parts of the country, and doesn’t recommend that its New York clients test for it.

Employee C may present as bright-eyed and drug-free, but lately he’s been doubling up on his prescription anti-anxiety medications, and so has become unable to reliably and safely operate heavy equipment. The doctor who advises your testing company has routinely prescribed that medication for years, and enjoyed golf vacations at the expense of its manufacturer. He doesn’t see it as a problem. Employee D may have come close to causing a disastrous accident a few months ago while high on prescription painkillers, which he buys illegally at a bar. He doesn’t abuse this medication often, but is unaware that his binges involve dangerously high dosages. By chance, your company’s random tests have yet to disclose this user’s infrequent, but risky, binges.

For some months, Employee E, an operating engineer, and his girlfriend have taken gradually-escalating doses of GHB, a steroid and “club drug,” on the weekends. This drug may be unknown to your testing company, but can cause delusions, loss of reflexes, tremors, amnesia, vertigo, hallucinations, and coma. It’s also addictive, and withdrawal can be very unpleasant. Employee F is just 18, and hangs out with his younger brother’s friends from the local high school. Buying alcohol is still a problem for the younger guys, and they lack money to buy the pricier drugs, so this young employee joins them in “huffing” a variety of household chemicals (some of which cause brain damage) to get high. Some of these substances are rarely tested for, in part because most adults have trouble imagining that kids will be so dumb as to disregard boldface warnings of brain damage, death, etc. from deliberately inhaling the highly-toxic contents of various containers. Unfortunately, some will.

As you can see, it’s not so simple as calling in a testing lab to work a quick fix of your company’s drug problems. Indeed, there are lucrative business ties amongst pharmaceutical producers, some drug testing laboratories, and many ordinary physicians. Labs connected to prescription drugmakers may be hesitant to test for, and to risk stigmatizing as unsafe, drugs with bona fide medical uses that may nevertheless pose a hazard when abused.

In addition, while usually testing drives down over time (often dramatically) the numbers of employees who test positive, in some instances the high rate of detecting marihuana use presents a potentially deceptive picture. Arguably, it’s not a net gain for health and safety if “recreational” marihuana users switch to more potent and addictive drugs that are harder to detect in urine tests.

If you plan to test, consider whether an outfit vying for your contract is candid about the limitations of its product, or offers the false assurance that hiring them guarantees something close to an end to your company’s drug and alcohol problems.

As a “reality check,” consider transportation, in which the Omnibus Transportation Employee Testing Act of 1991 has for years made testing mandatory for many employees in trucking, aviation, and many other safety-sensitive transportation jobs.

In long-distance trucking, drug-testing has expanded, while regulations governing the drivers’ hours have been weakened, the enforcement of equipment safety rules has been de-emphasized, and government funds for that purpose have been cut.

You can rave until Kingdom Come about the virtues of testing and “zero tolerance,” but if truck drivers must routinely drive 18, or 24 hours or more to pay the mortgage, many of them are going to use amphetamines and other drugs, period.

And, if trucking companies won’t pay to properly maintain their equipment (and government cuts both enforcement and funds) it’s cynical to pretend that firing a handful of drivers who fail drug tests constitutes effective protection for the drivers or the public.

Consider one report from a State Police agency in the western U.S. Despite widespread drug-testing in the long-haul trucking industry, one test of 373 trucks entering the State (and their drivers) found 9.3 percent of the drivers with drugs in their systems (chiefly, cocaine, methamphetamines, marijuana and prescription painkillers). A fourth of the trucks had bad brakes, bald tires, cracked wheels, and other significant problems.

There, in a nutshell, there you have the “bad” news about drug testing — the “silver bullet” remains to be found. Still, there is good news to report concerning drug testing as well.

First, testing methods are becoming more accurate, less intrusive (e.g., saliva collected with a cheek swab) and less costly. Whereas not long ago most tests were for just a handful of substances (marihuana, cocaine, heroin) today companies are increasingly sophisticated about what drugs are widely abused, and they can recommend tests accordingly. The turnaround time on tests has improved, as well.

Second, while sharp drops in the number of employees testing positive may result in part from drug users switching to substances harder to detect, or not tested for, accompanying reductions in absenteeism, employee turnover, and workers’ compensation claims are another matter. These are real benefits, and often they are dramatic. Is testing perfectly effective, or a cure-all? No. Is it more useful and cost-effective than 5-10 years ago? Properly done, yes.

Those of us who are middle-aged and have raised children know that use of drugs and alcohol amongst the young remains a huge problem, and a few who have not become chronic users will suffer tragic consequences from their experimentation. Most parents and drug-treatment professionals would agree, however, that there is a correlation between resistance to substance abuse amongst young people, and their perception that their elders care about what happens to them.

As an employer you’re not your workers’ mom or dad, but if you look around your jobsite, you’ll probably see that many of your employees are young, and few (if any) are hard-core addicts. Testing (and, probably more importantly, spending 40 hours a week working shoulder to shoulder with responsible adults who disapprove of drug and alcohol abuse, and look out for each other) can have a significant positive impact. Even if some stray now and then from the straight and narrow path, by reducing the frequency and severity of your workers’ drug and alcohol escapades, you can greatly reduce the odds of a serious drug-related jobsite event.

Perhaps most importantly, although occasional, “recreational” users of many drugs that can impair safe job performance may escape detection, it’s those who can’t or won’t limit their use — despite knowing that random testing is a daily possibility — who pose the gravest danger. Can you afford not to identify these users? Does it benefit them to delay detection, and having to face up to their problem?

So long as you are aware of the limitations of drug-testing, and can live with success in less than absolute terms, you will probably find testing to be worthwhile.

As builders, engineers, and lawyers, we live by identifying problems and applying solutions. Drug and alcohol abuse, however, is one of those chronic problems that won’t be solved simply, or once and for all. Since ignoring the problem can’t be an option, your choice is to wrestle with it wisely, or ineffectively. How you address it can result in lives saved or lost, and will probably have a great impact on the profitability, or even the survival, of your company. Therefore, get the best — and most disinterested — professional advice you can afford, set a good example, and listen to the feedback that your workers can provide.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.

You have probably heard the term “competent person” used in connection with accident avoidance and OSHA compliance. Having employees who are fully qualified as “competent persons” should be a key part of your company’s safety and compliance program.

One reason for this is that failure to provide a “competent person” is one of the most frequently cited OSHA violations. Another is that, in terms both of legal compliance and avoiding jobsite accidents, it must not be assumed that experience and common sense equal “competence.” Thus, it’s critical to know the definition and qualifications of the “competent person.”

No less than eighteen sub-parts of 29 C.F.R. ¬ß 1926 (OSHA’s construction standards) and six subparts of the ¬ß 1910 general industry standards, require a “competent person.” Overall, in the ¬ß 1926 construction standards, there are more than 120 references to a “competent person.” The needs of a particular employer, of course, in providing “competent persons” will vary according to the trade and the exact activities carried on by that employer.

As an example, if your company supplies concrete products, you need to review, and may be required to comply with, “competent person” requirements under the following rubrics:

• Section 1926.20, General Safety and Health;
  
• Section 1926.53, Ionizing Radiation;
  
• Section 1926.101, Hearing Protection;
  
• Section 1926.103, Respiratory Protection;
  
• Section 1926.251, Material Handling;
  
• Section 1926.404, Electrical (assured grounding);
  
• Section 1926.450-454, Scaffolds;
  
• Section 1926.500-503, Fall Protection;
  
• Section 1926.550, Cranes and Derricks;
  
• Section 1926.552, Material hoists, personnel hoists and elevators;
  
• Section 1926.705, Concrete and Masonry (lift slab operations);
  
• Section 1926.800-803, Underground construction; and
  
• Sections 1926.1053 and 1926.1060, Ladders and Stairways.

The foregoing checklist shows that any construction job may — and most large jobs will — demand not merely a safety director, but several “competent persons,” each having specialized knowledge concerning hazards associated with particular conditions and activities at the site.

Management is well-advised, therefore, to consider the actual qualifications required for “competent persons” against every relevant standard. However, while the incremental knowledge required of the truly-qualified “competent person” can literally be a matter of life and death, in most areas that increment can be acquired with a few days (or even hours) of specialized training.

What, then, is a “competent person”?

The basic definition appears in 29 C.F.R. ¬ß 1926.32(f): A “competent person means one who is capable of identifying existing and predictable hazards in the surroundings and working conditions which are unsanitary, hazardous or dangerous to employees, and who has the authorization to take prompt corrective measures to eliminate them.”

The definition has two main parts: (1) the ability to identify existing and predictable unsafe conditions; and (2) the authority to take prompt corrective measures.

Note two potential problems with the definition: (1) it fails to describe (or even require) formal instruction, as will establish “competence;” and (2) it mentions “authorization” to take corrective action, without expressly imposing a duty on the competent person to actually take the action.

Some studies have shown that, in many construction contexts, persons designated as “competent” often lack formal training in the relevant standards. Not surprisingly, safety experts find a correlation between such lack of formal training, and jobsite conditions that do not fully comply with OSHA requirements.

The “competent person’s” true authority is where the rubber meets the road regarding management’s support for employee safety. It’s problematic to designate an employee as a “competent person,” if there’s an understanding (express or implied) that stopping work, or blowing the whistle on a dangerous condition, will subject the “competent person” to browbeating (or reprisals).

It’s neither fair, nor effectively self-protective, for an employer to hang its “competent person” out to dry, once the employer is cited by OSHA. If denied proper training and/or genuine authority, the “competent person” whose legs have been cut out by management will probably be unable — and none too eager — to protect his employer, if exposed to harsh cross-examination, and public humiliation, following a fatality or serious injury.

And, while the risk to the employee is appreciable, the employer’s risks are potentially much greater, and may include fines, settlements, or even criminal liability (and, or course, legal fees).

Accordingly, the advisability of formal training should be inferred as an extension of the requirements of 29 C.F.R. ¬ß 1926.21(b)(2), which provides: “The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.”

An abundance of resources is available to equip “competent persons” with the knowledge they need to effectively carry out their responsibilities. Your employees’ union, if there is one, can be a resource. In all events, it’s relatively easy to find moderately-priced training, in most pertinent areas, by searching online.

A review of the topics taught in one course for “competent persons” on the trenching and excavation standards should show that, while “competency” usually will require some expertise beyond that gained by jobsite experience, it’s seldom “rocket science.” Here’s the syllabus for a half-day course:

• Introduction to the applicable regulations;
  
• Different types of excavations (trenches as a sub-species of excavations, sloped excavations, maximum allowable slope);
  
• Excavation hazards, e.g., cave-ins, falls (both persons and equipment); water accumulation and standing water, electric shock, structural instability, and hazardous atmospheres;
  
• Different types of soils (competent and incompetent soils, stable rock, Types A, B and C soils, layered soils) and identifying procedures;
  
• Shoring systems (when required; identifying the right types of materials);
  
• Using shielding in excavations;
  
• Removal of support systems;
  
• Disposing of spoils;
  
• Responsibilities of the “competent person” and others;
  
• Inspection requirements;
  
• Safe work procedures, including how to cross trenches; proper entry and exit from excavations; exposure to vehicles and to falling loads; warning systems, and emergency response.

The dangers of failing to give the “competent person” training to acquire the modest incremental knowledge needed to effectively discharge his duties are shown by the recent case of Secretary v. EMCON/OWT, Inc.

That case involved a crew of men working in an excavation at a Florida landfill.

Landfills are laid out in cells lined with high density polyethylene. As cells fill up and the garbage in the cell deteriorates, methane gas is produced. The methane must be collected by wells located around the landfill, and vacuumed into gas headers to a central location, where it is burned off.

Perforated clean-out lines are installed beneath layers of gravel and sand in each cell prior to garbage being deposited. Leachate (rainwater falling onto the accumulating garbage) percolates through the sand and gravel into the perforated collecting lines, which drain it to the landfill’s sump area.

The 5-man work crew at the landfill had excavated a trench, exposing the leachate clean-out pipe that they needed to cut into. One worker, Seaborn, tried to cut the pipe, using a gasoline-powered chainsaw. The pipe released an odorous gas, and the chainsaw stopped working. Seaborn left the trench, and went to retrieve an electric saw to use instead.

Returning, Seaborn noted a foul odor, and exited the trench. The crew foreman, Diloreti, entered the trench to make the cut, but likewise hesitated because of the odor. Warne, a third crew member, expressing impatience with his co-workers, entered the trench, bent over the pipe to make the cut, but stood up and said, “Whew.” A fourth worker, Garno, jumped into the trench, bent over the pipe, stood up, said “Something is not right,” and passed out. Seaborn went to assist Garno. Diloreti tried to assist Warne, but passed out himself. All four crew members were removed to hospital, but Warne died en route, or shortly after arrival.

The employer was cited for three violations, one of which was a failure to inspect the area by a “competent person” following a “hazard-increasing occurrence,” 29 C.F.R. 1926.651(k)(1).

Meier, the supervisor (and only crew member not present when the workers were overcome) had inspected the excavation on the morning of the occurrence. The ALJ rejected the employer’s depictions of Meier as its “competent person,” and this required inspection as constituting compliance with the standard.

In addition to the required daily inspection, the ALJ found, an additional inspection must be made “after every rainstorm or other hazard increasing occurrence.” The Secretary considered Diloreti, the foreman, as the true “competent person,” and asserted that cutting into the leachate pipe was a “hazard-increasing occurrence.”

The ALJ agreed with the Secretary that three incidents, over a 20-minute span, gave notice of likely employee exposure: (1) the stoppage of the gas-powered chainsaw, indicating a shortage of oxygen; (2) a strong, unpleasant odor arising from the pipe; and (3) the immediate physical discomfort experienced by the crew members upon entering the trench to make the second cut.

Faced with these unusual incidents, the ALJ found, Diloreti (as the acting foreman) ought to have tested the atmosphere with a gas meter, available in the crew’s truck. He did not do so.

Diloreti had worked for the employer for 10-1/2 years, and had risen from laborer to technician to operator to foreman. He had never received “competent person” training, and only vaguely understood what the term meant. Although plainly conscientious and stricken by the death of his co-worker, Diloreti testified that it had not occurred to him to test the excavation with a gas meter, after the crew cut the pipe.

The ALJ held that Diloreti was unqualified to act as a “competent person;” that he had failed to identify a recognizable hazard; that an inspection required after a hazard-increasing occurrence was not made; that Diloreti’s knowledge of the foul smell, and his crew members’ reactions, would be imputed to the employer, and the employer had failed to be reasonably diligent in training its employees. Accordingly, a “serious” violation was found, and a significant penalty imposed.

This occurrence would probably have been avoided and a life saved, had Diloreti had the modest incremental knowledge that would have led him to retrieve a gas meter, and test the atmosphere in the trench.

The main lessons from the EMCON/OWT case are that experience must not be assumed to equal “competence,” and modest investments in “competent person” training afford employers serious “bang for the buck,” and a sharp reduction in the likelihood of avoidable, and preventable, employee injury.

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.

U.S. passenger vehicles have come equipped with seat belts for more than forty years. During that time, seat belt use on U.S. roadways is believed to have saved some 200,000 lives.

Despite decades of public service announcements urging seat belt use, it may surprise you to learn, as recently as 1994, seat belt use by U.S. motorists was only about 58%. In the decade since, “Click It or Ticket” laws have pushed that number up to about 80%, but even today, an estimated 6,000 traffic fatalities each year are attributed to the failure to use seat belts.

As millions of American drivers risk death and dismemberment daily by operating automobiles on highways without using seat belts, it will come as no surprise that construction workers, operating heavy equipment off-road and at low speeds, sometimes fail to “Buckle Up for Safety.”

Construction industry employers know, or certainly should know, that they are required by OSHA (29 C.F.R. ¬ß 1926.602) to provide seat belts for offroad vehicles, and equipment that meets the requirements of the Society of Automotive Engineers’ standard, “Seat Belts for Construction Equipment” (J386-1969).

While clearly employers must provide seat belts on off-road construction equipment, a further question is whether the employer violates OSHA, if it fails to ensure that employees actually use the seatbelts. If an OSHA compliance officer happens to spy one of your employees operating a piece of equipment without an available seat belt being fastened, will you have to prove “unavoidable employee misconduct” to avoid being cited for an OSHA violation?

As an employer, of course, your objectives are to minimize jobsite risks to your employees and to avoid OSHA citations altogether (which is better than prevailing in the Court of Appeals, based on subtle legal arguments). As a practical matter, therefore, it’s certainly not a bad idea to have, and to enforce, rules requiring the use of seat belts.

Curiously, however, as a legal matter it appears less than certain that the employer, technically speaking, violates OSHA if it provides the seat belts, but fails to ensure the belts’ actual use by its employees.

In addition to explaining why I believe this to be so, I want to mention that OSHA regulations and enforcement are intended to promote workplace safety, and like most laws and regulations concerning safety (building codes are a prime example) OSHA regulations are based on currently-accepted assumptions. Unavoidably, they sometimes lag behind advances in technologies, practice, and materials, and current understandings about what really works in promoting safety, and what doesn’t.

OSHA compliance officers sometimes cite construction companies for failing to assure actual seat belt use, but while there are plausible arguments in support of such citations, they are something of a stretch. For example, one basis cited in support is the requirement that employers assure the use of “Personal Protective Equipment.” A DOL interpretation letter from 2004, for example, states that seatbelt use (enforced by the employer) is sometimes mandated under 29 C.F.R. ¬ß 1926.28(a), which reads:

The employer is responsible for requiring the wearing of appropriate personal protective equipment in all operations where there is an exposure to hazardous conditions and where this part indicates the need for using such equipment to reduce the hazards to the employees.

However, while the “Personal Protective Equipment” rules have been cited as justification for requiring seat belt use, this particular interpretation letter addressed whether operators of mobile cranes with operator cabs are subject to a seat belt requirement. The conclusion was that the crane was a “motor vehicle” when being driven or used to transport employees from one place to another (including off-road transportation) but that the regulations’ definition of “motor vehicles” did not embrace the same piece of equipment when used in lifting operations. Indeed, this interpretation letter opined that, if used exclusively in lifting operations, the crane would even not be required to have a seat belt.

Although we did not find a case giving a definitive answer to the question, there are at least one or two older cases in the OSH Review Commission that suggest that the use of seat belts on construction equipment may be required under OSHA’s “General Duty Clause,” 29 U.S.C. ¬ß 654(a)(1).

In the absence of a clear rule, whether in the regulations or in the case law, a substantial (if legalistic) argument can be made that seat belt use is not required on the construction jobsite, as follows.

Generally, the General Duty Clause will not apply where a specific OSHA standard can be shown to govern the issue in question. OSHA has a seat belt standard specific to the construction industry, as mentioned — plus three others applicable to logging operations, high-speed gantry cranes used in marine terminals, and tractors used in agricultural operations.

The agricultural and logging seatbelt standards, significantly, both require not just that belts be available, but that the employer ensure that the employees actually use them and, indeed, that they tighten them properly. The construction industry standard specifies neither that the employer must ensure use of the belts, nor that it ensure the correct use of the belts.

OSHA regulations are generally construed by the same rules that apply to legislative enactments. Although cynics may be horrified by the notion that the legislature is presumed to know what it is doing, in fact the law requires precisely that presumption. Enactments on the same subject matter, even if adopted years apart, are required to be read together and — except where the result is clearly absurd — construed and harmonized, as though they were a unitary enactment.

Thus, if (1) OSHA adopts several, industry-specific seatbelt standards; and (2) it provides in certain of them that the employer must (in addition to merely providing seat belts) take care that employees buckle themselves in, and fasten their seat belts properly, while (3) omitting any such requirements in the others, then, by the rules of interpretation just mentioned, there’s a respectable legal argument that OSHA must be deemed to have left the additional requirements out of the construction regulations advisedly.

That argument is worth considering if your get cited by OSHA because your employee has been caught not wearing a seatbelt. Nevertheless, larger issues are obviously implicated.

Some relevant concepts can be found in a 1979 OSH Review Commission decision, Secretary of Labor v. Royal Logging Co. In that case, a logger working in Montana was killed when his ROPS-equipped crawler (tracked) tractor with a front (bulldozer) blade overturned, pinning him beneath the ROPS. This bulldozer-equipped tractor, or “cat,” was used to create initial trails, to mark the area within which trees are to be cut, and later to clear debris, smaller trees and felled timber.

At the time of the fatal accident, the operator had been cutting strips on a “35 to 40 percent” grade. Experts testified that a “20 percent” grade (or about 18 degrees) might cause a “cat” to roll over; that the equipment was nevertheless routinely operated on grades as steep as 36 degrees, and that (as of 1975, when this fatality occurred) deaths due to rollovers were common events in the logging industry.

“Cat” operators were resistant to using seat belts, as they considered the risk of being thrown out and crushed by the ROPS or the cat itself to be lower than the risks posed by tree branches which, when placed in tension and then released by the passage of the cat, can sweep along and into the side of the cab, injuring the operator, or may break off or catch, and fling rocks and dirt at the operator. Many cat operators shunned wearing seat belts due to these “sweepers.” A kindred hazard, the “jillpoke,” is a branch with a sharp broken end, which may be thrust into the cab with sufficient force to tear the seat. These hazards are encountered perhaps a dozen times a day, and operators often jump out of the cabs of their cats to avoid them.

Although apparently no loggers had been killed or seriously injured by “jillpokes” or “sweepers” since a death from a jillpoke some 30 years before, the consensus in the industry (as the employer’s expert testified) was that seat belts should not be worn by cat operators.

Although a specific use-of-the-seatbelt requirement was later adopted for the logging industry, at the time of the Royal Logging Co. case none was in effect, wherefore the Secretary cited the employer under the “Personal Protective Equipment” clause related to the construction industry, and the “General Duty Clause.”

The ALJ found that, although the decedent had not been engaged in construction operations, the equipment he was operating was identical to a kind used in construction, and indeed was more susceptible to rolling over in logging operations than in construction operations, because of the terrain. In addition, the ALJ found that, in the logging industry, the failure to wear a seat belt in ROPS-equipped earthmoving equipment was a recognized hazard.

The upshot of the preceding discussion is that a means of abating a hazard (wearing a seat belt) may be challenged as “infeasible” not only if the method of abatement proposed is impracticable, but if it would expose employees to equivalent or greater hazards. Thus, construction employees may be justified in not wearing seat belts, when using equipment and when engaged in operations in which using the belt is shown to be riskier than not wearing it. The employer, to be sure, has the burden to show that this is the case.

Case results — including cases in which OSHA reduces or eliminates penalties before litigation, based on the legal uncertainty of its position regarding an actual citation — may bring about change or clarification in the regulations themselves, complementing more formal rulemaking procedures.

Notwithstanding some degree of uncertainty regarding whether OSHA can penalize an employer’s failure to ensure seat belt use by construction equipment operators, such use should be required (and appropriate rules communicated to employees and enforced) absent something like a consensus amongst operators of specific kinds of equipment, used for specific purposes, that countervailing safety considerations (e.g., the need for agility, visibility, or the ability to evade objects intruding into the cab) render seat belt use more dangerous to the operator than leaving the seat belt unused.

Where strict adherence to an OSHA standard fails to further OSHA’s purpose — to protect the lives, health and safety of employees in the workplace — often it will be worth it to, first, try to negotiate away the citation, and then (perhaps) to contest it, even if technical noncompliance is clear. Although every case is different (consult your lawyer!) OSHA, the Commission, and the Courts, while dismissive of arguments that are clearly pretextual, are usually receptive to reasonable, good-faith arguments that, under the circumstances, strict enforcement should be excused as counterproductive to OSHA’s primary aims.

A notable caveat, of course, is that an employer with a poor history of OSHA violations will probably have both a credibility problem, and possibly a greater risk of a finding of “willfulness,” and the repercussions that can result from such a finding. In a given case, however, a well-supported argument that seat belt use is counterproductive in the specific context for which the employer has been cited may succeed or, failing that, result in a reduction of penalties. And, if your contest helps to bring about changes in the regulations that clarify precisely what is required of employers and/or bring OSHA more in line with workplace safety realities, that will be a worthwhile side effect of your efforts.

Again, consult OSHA counsel and, in the meantime, fasten that seatbelt before you put your car into drive.

_________________________________________________

1The requirement applies to “scrapers, loaders, crawler or wheel tractors, bulldozers, off-highway trucks, graders, agricultural and industrial tractors, and similar equipment.” There is a related standard that applies in the case of agricultural and light industrial tractors.

2 Apparently, this testimony meant a grade of about 31.5 to 36 degrees.

3 Note that, sometime after the Royal Logging Co. decision, OSHA seatbelt rules for the logging industry were made more stringent, overruling the loggers’ judgment that “sweepers” and “jillpokes” were more dangerous than rollovers.

_________________________________________________

Thomas H. Welby is a licensed professional engineer, as well as an attorney and managing partner of Welby, Brady & Greenblatt, LLP, a construction law firm with its main office in White Plains. Articles in this series are for general guidance only, and should not be relied upon as providing all information necessary for compliance with OSHA and other legal requirements.