As we have reported elsewhere, NRCA, along with four contractor co-plaintiffs, filed a motion in February for judicial review of the Occupational Safety and Health Administration's (OSHA's) new fall-protection rules, as well as a motion to stay the new rules' enforcement.
Before taking that action, we spoke with numerous NRCA members, nearly all of whom agreed with our need to do so. However, only a few are willing to have their names associated with the litigation. Why? Because they have heard too many OSHA enforcement horror stories and are afraid of retribution. That is a sad—tragic, even—comment on the state of affairs in Washington, D.C., these days.
One member reported getting fined $4,000 for not having enough paper cups near the water cooler on a job. The cups also were deemed to be the wrong type. Another member was cited for having a tied-off ladder 35, rather than 36, inches above the roof line. Still another member reported seeing an OSHA enforcement officer on the ground waiting for a hazard to emerge so he could issue a citation. His goal was not to warn the worker of an impending danger, mind you, but to find a reason to fine the employer.
These days, virtually all fall-related citations issued by OSHA are deemed to be willful. Why? Because, the OSHA logic goes, if there is someone in charge on the job, he or she is part of the company's management. And if a part of the company's management lets a fall-protection violation go unfixed, it can only be because it's a willful act of the employer.