Increasingly, failure to take tower safety seriously could lead to jail

Tower owners and operators should make safety a priority simply because it’s the right thing to do. But if that’s not reason enough, they should do so in order to stay out of court, and perhaps jail, according to Edwin Foulke Jr., an attorney with Fisher & Phillips LLP, a nationwide firm that specializes in labor and employment law.

Foulke, who spoke on the topic last week during a webinar presented by the National Association of Tower Erectors (NATE), said that his firm is seeing more and more people being brought into litigation — both criminal and civil — as a result of safety violations. He added that while such actions traditionally have impacted only company officers, increasingly they are moving down the chain to the safety professional level.

According to Foulke, criminal and civil cases largely hinge on whether the tower owner/operator willfully violated OSHA standards and, as a result, created an unsafe environment for workers. Foulke cited a 1994 case, Georgia Electric Company v. Marshall, which defined “willful” as an “intentional disregard of, or plain indifference to, OSHA requirements.” But he added that this definition seems to be evolving.

“The problem for employers is that we might have a slightly moving target here,” said Foulke, who headed OSHA for three years during the administration of President George H.W. Bush, and chaired OSHA’s review committee during the Clinton administration. “What is considered ‘willful’ is becoming a little broader in definition than it was before. …  You don’t have to have any evidence of malicious intent in order to establish willfulness—you need not even show a lack of good faith to be able to prove a willful violation. So, OSHA’s burden of proof on these things is not that great, and it’s getting easier.”

Another problem is that federal and state agencies are working more cooperatively these days. He told of one case that involved workers at a manufacturing facility wading through contaminated wastewater. Once OSHA completed its investigation — which resulted in 38 citations, including one deemed willful — the EPA used the findings to bring criminal charges that resulted in the company’s CEO, a vice president and its plant manager, all receiving sentences that ranged from 46 to 108 months.

Should OSHA ever show up at your door, Foulke offered some simple advice: cooperate. Any sort of obfuscation — false statements, withholding of evidence, and the like — leads to nowhere good in such situations, he said.

“If you obstruct justice, by covering up, changing evidence, or destroying evidence, I promise you that you’re going to get a criminal referral,” Foulke said.