b'being aware of the risk, knowing that it was severe, and knowing that it could take effective measures to avoid it, but did not take those measures.best protect employees based on the condition oflatter definition is significantly less stringent than the the soil. On the day of the inspection he did his soilstandard applied in most other circuits. test, entered the data, but he did not complete theEmployers in Wisconsin, Illinois and Indiana bottom part of the form which identified the methods(recognizing that Indiana is a state OSHA program available for the type of soil. The bottom portion evenstate) need to be aware of this standard for willful indicated that for type B soil, the maximum slopecitations.This means that when you see a serious allowed was 45 degrees.safety hazard you need to take immediate action The Court applied the same test that it developedto neutralize it to protect your employees. Do not in Dukane; proof of willfulness requires proof onlydecide to get to it later. As workplace safety gains that the defendant was aware of the risk, knew thatimportance and penalties increase more courts and it was serious, and knew that he could take effectivestates maymove into a similar broad definition of measures to avoid it, but did not. In this case thewillful.Review Commission reviewed the administrativeThere was one other interesting point made by the law judges decision before the Court did. TheCourt in the Stark case. Stark asserted that it makes Commission concluded that although the supervisora good faith effort to comply with safety rules and testified that he was in a hurry and was not payingthat the effort should negate willfulness.But, Starks attention, the evidence showed that he knew or at leastcompliance mechanism for its safety rules could deliberately avoided knowing that the slopes of twonot be used to establish an unpreventable employee the walls exceeded 45 degrees by a wide margin. Somemisconduct defense and/or be used to argue good faith additional testimony by the supervisor did not help thecompliance. The Commission and the Court found employers position in this matterhe testified that hethat Stark routinely disregarded its enforcement policy. usually got into trouble because he took too much timeIn fact, in a two year period Stark had only issuedmaking sure the ditches were correct. thirty-three tickets (safety violation write-ups) for I think we can see from these decisions that theviolations and that in one office no safety tickets had 7th Circuit has moved away from a standard forever been issued. willful violations of intentional disregard of, or plainSo why are these cases important? Well, first on indifference to, the requirements of the statute tothe willful side, we have the increased fines for a being aware of the risk, knowing that it was severe,willful violation from a maximum fine of $70,000.00 and knowing that it could take effective measuresto a maximum fine of over $127,000.00, so the cost to avoid it, but did not take those measures. This www.mrca.orgMidwest Roofer 37'