b'Garys CornerupdateGary Auman, MRCA Legal CounselNew Willful Definition and otherPerez. 811 F. 3d 922 (2016). OSHA Developments The accepted standard for a willful classification F or those who have been working in the safetyhas been evidence that the employer acted with arena for a few years you are very familiarintentional disregard or plain indifference to the with what a willful violation is and therequirements of the statute. Lakeland Enterprises of penalties that are associated with it. Well, things areRhinelander, Inc. v. Chao, 402 F. 3d 739, 747 (7th Cir., changing. Willful violations have always been issued2005). The Court in the Dukane and Stark cases does to the BAD employers. Most of us have considerednot accept this restrictive language. It appears that the that when a willful citation was issued the employerCourt has taken us to a recklessness test for a willful. on the receiving end had really done something veryLets briefly examine the facts of the Dukane case. wrong. In fact, the employer probably was seen to haveIn this case an employee entered and became trapped willfully violated the .Act.in a permit required confined space. The hazard in the OSHA always bears the burden of establishingspace was one of engulfment. The employee became a citation. Other than serious and serious relatetrapped in sand, which gradually rose to his neck. primarily to the potential seriousness of the injury thatHe cried out and several employees came to his aid. may be suffered by an employee because of the allegedAt risk to their own lives they entered the confined violation. Repeat violations require OSHA to provespace and tried to dig the entrapped employee out. that the employer has, in the past, violated a standardThey got him free to his waist but could not go any substantially similar to the current alleged violation.deeper. The plant manager was told about the accident With a failure to abate, OSHA must prove that thewithin about ten minutes of its occurrence. He felt employer has not corrected a violation which hasthere was no emergency and that the employee was in become part of a final order of the Occupational Safetyno danger because fellow employees were working to and Health Review Commission. Finally we have thefree the trapped employee. He was told by the rescuers willful violation. that they thought they could get the employee free. In 2015 and again in 2016 the Seventh CircuitEventually the trapped employee asked his fellow Court of Appeals, which encompasses Wisconsin,rescuers to call 911, but no one did. Finally, after the Illinois and Indiana, has redefined what it considersplant manager was told of this request he called 911. By this time the employee had been trapped for over ninety minutes. standard for a willfulOSHA cited the employer for a willful violationof classification has1910.146(d)(9) for not having a procedure to summon rescue personnel. Here the employer got into a battle been evidence that theof semantics with OSHA. The standard requires employer acted withthe employer to develop and implement a plan to summon rescue. The employer felt that the standard intentional disregard referred to developing a plan and maintainingit while OSHA contended that implement means to apply a willful act by an employer.In these decisions thethe plan. The Court disagreed with the employers Court has broadened the criterion that is consideredinterpretation. by OSHA when considering a willful classification. The Stark case follows this theme. In Stark we are One decision was issued in 2015 with a seconddealing with an excavation situation. The supervisor decision this spring. The first case is Dukane Precast,always examined every trench or excavation before Inc. V. Perez, 785 F. 3d 252 (2015) and the secondanyone entered it. He did a penetrometer test, decision was rendered in Stark Excavating, Inc. v.recorded the results and then determined how to 36 www.mrca.orgMidwest Roofer'