The following is a guest post written by David B. Lever.
David B. Lever founded the law firm, David B. Lever & Associates, PLLC in 2014 and is the firm’s top legal strategist. He has fought for the rights of accident victims and consumers for over 24 years. His area of practice is Personal Injury-Plaintiff, which includes construction accidents.
In March 2013, Flintlock Construction was building a hotel at a Manhattan construction site known as the 325 Project. OSHA inspectors visited the site and delivered three separate scaffolding violations that added up to a total of $249,920 in OSHA fines. Flintlock Construction immediately filed an appeal and that appeal was heard in July 2015.
The result of the appeal was that the fines were upheld. It was determined that Flintlock did put its employees in a dangerous situation with their lack of attention to scaffolding laws. OSHA was created to look out for worker safety, and OSHA did submit a response to the appeal that was filled with nearly 40 pages of explanations for each violation. Flintlock is appealing again, but the evidence suggests that the final appeal will meet with the same fate as this most recent one.
The Details Of The Case
During a safety inspection, OSHA noted three separate major scaffolding violations at the 325 Project job site. These violations included scaffolding located near the:
- Southeast corner of the building
- North side of the building
- Building entrance where a plank walkway was considered unsafe
OSHA takes scaffolding violations very seriously and has laid out the rules for proper scaffolding in forms that are available to all contractors. The key component to all of these scaffolding laws is the overriding theme of worker safety. Scaffolding must be properly constructed, maintained, and secured before it can be used by employees. It is the initial complaint and subsequent appeal, where OSHA noted that the scaffolding in these three areas did not meet legal specifications.
The Depth Of The Problem
OSHA noted that these were "willful and serious violations" committed by Flintlock Construction. As we examine the fines given by OSHA, it is important to look at the wording OSHA uses when referring to these fines. The word "willful" stands out because it indicates how severe OSHA considers Flintlock's violations to be, and that explains the excessive amount of the fines that were levied.
In its appeal, Flintlock maintained that the discretions were not willful because the main principals of the company did not know that the violations were taking place. But the response given by OSHA to the appeal shows that there was communication between the field and Flintlock's corporate office and that communication did, on several occasions, try to warn the office of pending issues.
Analyzing The Appeal Decision
The written decision by OSHA regarding the appeal goes into explicit detail regarding the conditions leading up to the inspection, the communications between the field and corporate office, and the communications within the office itself. The most damaging evidence to Flintlock Construction is the field log of George DeCristoforo, who was the field supervisor for a subcontractor called Site Safety. Mr. DeCristoforo's logs explain the issues with the site scaffolding in great detail. The logs then go into comprehensive detail about the responses he got from Flintlock Construction management when he would voice his concerns.
The record shows that the project managers at every level in Flintlock Construction were made aware of the potential scaffolding issues, but they all chose to ignore the problems. One Flintlock supervisor went so far as to tell Mr. DeCristoforo that the supervisor was in "no mood to listen to concerns" about worker safety and potential scaffolding violations.
The Final Appeal Could Be Pointless
The worksite logs from the 325 Project and the interviews conducted with various members of the construction team that are all documented in the OSHA response to the appeal are difficult to ignore. The evidence shows that each level of Flintlock management was made aware of the issues, but yet no corrective action was taken.
In analyzing a situation like this, it is important to look at both sides of the equation. Flintlock supervisors are quoted in the OSHA decision as knowing that the scaffolding was unsafe, but they were attempting to reach a deadline set by the project owner. None of the Flintlock personnel that was interviewed denied cutting corners on worker safety to meet this deadline, and that is not going to help Flintlock in its final attempt at an appeal.
OSHA currently controls over 20 laws that protect workers who file safety complaints against their employer or other employees. In general, whistleblowers are protected against retaliation from their employer.
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The worst day on the job is when someone on site gets injured. The 2nd through 500th worst days are the legal battle that follows many of those injuries. Nobody expects accidents to happen, but it’s best to be adequately prepared if one does. That not only includes knowing how to react to injuries with a safety plan, but also making sure your company’s documentation is in order in case lawsuits start flying.