The Occupational Safety and Health Administration (OSHA) defines a "willful" violation as one where the employer either knowingly failed to comply with a legal requirement or acted with plain indifference to employee safety. It is based on an employer’s knowledge and state of mind.
A willful OSHA violation will have one or both of these characteristics:
- Intentionality: The employer intentionally disregarded an OSHA standard or requirement. This could involve deliberately ignoring safety protocols, refusing to address known hazards, or providing misleading information about safety measures.
- Indifference: The employer demonstrated a plain indifference for the safety of their employees. This might involve knowingly exposing workers to serious hazards without taking necessary precautions or failing to take any action to address reported safety concerns.
Examples Of Willful Violations:
- Ignoring repeated complaints from employees about safety hazards.
- Falsifying safety records to conceal known hazards.
- Failing to provide required safety training to workers.
- Exposing workers to known dangerous chemicals without proper personal protective equipment (PPE).
- Continuing to operate unsafe equipment after being notified of potential dangers.
Willful Vs. Other OSHA Violations
OSHA classifies violations into different categories based, in part, on the employer's state of mind when the violation occurred. A willful violation is the most serious category of violation issued by OSHA. An employer can be criminally prosecuted if it commits a willful violation that results in the death of an employee.
OSHA classifies violations into these categories:
- Other-Than-Serious: These are violations that involve minor deviations from OSHA standards and are unlikely to cause serious physical harm or death. Examples may include minor recordkeeping errors, lack of minor safety signage, or faulty electrical cords not in immediate use.
- Serious: These violations involve significant deviations from OSHA standards that could lead to serious physical harm or death but are not imminent threats, such as inadequate guarding on machinery, fall protection violations, and lack of proper respiratory protection in hazardous environments.
- Willful: These are the most severe violations, involving intentional disregard for OSHA standards or plain indifference to worker safety. These violations carry the highest penalties and may even lead to criminal charges.
- Repeat Violation: A violation of any standard, regulation, rule, or order where, upon re-inspection, a substantially similar violation is found.
- Failure to Abate Prior Violation: The employer failed to correct a previously cited violation within the specified abatement period.
Should You Contest A Citation For A Willful Violation?
As of January 2024, an employer can be fined a maximum of $161,323.00 per willful or repeated violation. The maximum penalty amount for both a Serious and Other-Than-Serious violation is $16,131.00. OSHA penalty amounts are adjusted annually for inflation.
For a small business, the financial penalty alone could impact your business’ ability to survive.
Additionally, there are other costs beyond the OSHA penalty:
- The cost of abatement;
- Reputational harm that could impact your ability to work for certain customers or your ability to be considered for public works or governmental projects;
- Increased oversight and inspections not only from OSHA but also other regulatory authorities, such as the Environmental Protection Agency (EPA) and U.S. Food and Drug Administration (FDA);
- Enrollment in OSHA’s Severe Violator Enforcement Program (SVEP);
- Civil lawsuits related to liability, workers’ compensation, personal injury or wrongful death lawsuits, or indemnification proceedings; and
- Potential criminal charges – including arrest – and fines against individuals and the company if there is a willful violation that results in the death of an employee.
You have 15 working days from the date you receive citations to hold an informal settlement conference with OSHA and/or file a written Notice of Intent to Contest with the OSHA area director. Speak to an OSHA defense attorney for help navigating this process.
