Compliance Magazine Email Report
Legal Update

Date: May 04, 2004

Legal Update - Links to Key Court Decisions
By David Sarvadi, CIH, JD, and Jeremy W. Brewer, Keller & Heckman LLP,

Commission Rules on Contractor vs. Employee Status
Secretary of Labor v. Froedtert Memorial Lutheran Hospital Inc.; OSHRC Docket No. 97-1839 (Jan. 15, 2004)

The Occupational Safety and Health Review Commission (OSHRC) recently upheld citations charging an employer with violations of the OSH Act relating to contractors who worked at the employer's hospital on referral from temporary staffing agencies. After conducting a legal analysis of the employment relationship, the OSHRC determined that the contractors were employees of Froedtert under the OSH Act. Citing Supreme Court precedent, the OSHRC acknowledged that the day-to-day control an employer exercises over a temporary or contract worker remains a "principal guidepost" in determining the common law meaning of "employee." Because the temporary staffers were deemed to be Froedtert's employees, the OSHRC affirmed the hospital's violations of the OSH Act even though the workers were temporary/contract employees.To view the full case, go to http://www.oshrc.gov/decisions/pdf_2004/97-1839.pdf.

Employers' Intention Defines Willful Violations
American Wrecking Corp. v. Secretary of Labor, 351 F.3d 1254 (D.C. Cir. 2003)

The United States Court of Appeals for the District of Columbia Circuit recently held that a "willful" violation is differentiated from lesser violations by an employer's intentional or conscious disregard for an OSHA standard or employee safety. Specifically, the court stated that employers who commit an OSHA violation through negligence have not committed a "willful" violation under the OSH Act. This decision reversed an Occupational Safety and Health Review Commission (OSHRC) decision and held that the Secretary of Labor had not sufficiently established the employer's state of mind, showing that the employer intentionally or consciously violated the loose materials standard when an employee was killed on the worksite. The argument that the employer should have known of the unlawful condition is insufficient in upholding a "willful" violation.To view the full case, go to http://www.ll.georgetown.edu/federal/judicial/dc/opinions/02opinions/02-1379a.pdf.

Court Decides on Case Involving Overlapping Standards
Secretary of Labor vs. Weirton Steel Corp., OSHRC Docket No. 98-0701 (July 31, 2003)

OSHA cited Weirton Steel Corp. for an alleged willful violation of the Respiratory Protection Standard for allowing employees to work near dangerous levels of carbon monoxide without respiratory protection. Weirton argued that the citation was improper in light of the Air Contaminants Standard, which specifically sets a permissible exposure limit (PEL) of 50 parts per million (ppm) carbon monoxide, based on an eight-hour time weighted average exposure. While OSHA established "ceiling limits" for certain substances, it did not do so for carbon monoxide. Weirton's position was that as long as the company complied with the specific PEL for carbon monoxide, it could not violate the more general Respiratory Protection Standard.The trial court rejected this argument, and the Occupational Safety and Health Review Commission (OSHRC) upheld its reasoning. The trial court held that the Air Contaminants Standard did not preempt the Personal Protective Equipment (PPE) Standard. It reasoned that the PPE standard addresses immediate health threats, while the Air Contaminants Standard addresses dangers associated with long-term exposures.To view the full case, go to http://www.oshrc.gov/decisions/pdf_2003/98-0701.pdf.