CIVIL AND CRIMINAL LIABILITY UNDER TOSHA
Under the Federal Occupational Safety and Health Act of 1970, the term “employer” is defined as “...a person engaged in a business affecting commerce who has employees, but does not include the United States or any State or political subdivision of a state.” For that reason, Tennessee municipalities are not directly subject to OSHA and OSHA standards. However, Tennessee Code Annotated, section 50-3-101 et seq., reflects Tennessee’s Occupational Safety and Health Act of 1972 (TOSHA), which does apply to municipal governments. A provision of TOSHA authorizes the Tennessee commissioner of labor to adopt occupational safety and health standards. Many of such regulations the commission has adopted are the various OSHA standards.
Definition of employee and employer
TOSHA’s definition of “employee,” includes “county, metropolitan and municipal government employees,” and its definition of “employer” includes “county, metropolitan and municipal governments.”
Local government option to be treated as “public” or “private” employer
On or before July 1, 1972 (or in the case of local governments created thereafter, within two years after their creation) each local government had/has the right to be treated as a private employer or to develop their own program of compliance. Many municipalities have adopted ordinances creating their own programs of compliance.
The distinction between “public” and “private” employer is contained in Tennessee Code Annotated, § 50-3-911:
No action shall be taken with reference to an employer which is a local government, other than the performance of inspections under §§ 50-3-101–50-3-306 performed for the purpose of determining the effectiveness of programs developed and registered by such employers under § 50-3-910, unless such local government has elected to be treated as a private employer.
The major distinction between public sector and private employees is that while both are subject to inspections and citations by the commissioner of labor for the violation of safety and
health standards issued by the commissioner of labor, the monetary penalties that apply to private employers under TOSHA do not apply to public sector employers.
Commissioner of labor authorized to issue regulations
The Commissioner of Labor under TOSHA is authorized to “develop and promulgate regulations which adopt occupational safety and health standards, ” including the federal standard related to the same issue. [Tennessee Code Annotated, § 50-3-201]
The Commissioner of Labor has adopted extensive occupational safety and health standards, which are contained in the Rules and Regulations of the State of Tennessee, Department of Labor, Chapter 0800. The Safety and Health Provisions for the Public Sector are found in Chapter 0800-1-5, and apply to those municipalities that have elected to be treated as public sector employees.
Duty of local governments
Local governments have the duty to their employees “to provide their employees with conditions of employment consistent with the objectives of this chapter [TOSHA] and to comply with the standards developed under § 50-3-201 [the regulations issued by the commissioner of labor.] [Tennessee Code Annotated, § 50-3-910]
Violations of TOSHA
Inspections. The commissioner of labor is authorized to inspect both municipalities that have elected to become public sector employers and municipalities that have elected to be treated as private employees, and the commissioner can issue citations for violations of the regulations issued by the commissioner disclosed by the inspection. [Tennessee Code Annotated, § 50-3-307] The municipality is required to post the violation.
Civil penalties. Private employees and public sector employees are treated differently when an inspection leads to a citation:
!Municipalities that have elected to be treated as private employers:
(1) In appropriate cases the commission is authorized to seek injunctive relief of conditions and practices that can be expected to cause death or physical injury before the imminence of such danger can be eliminated through enforcement process. [Tennessee Code Annotated, § 50-3-401]
(2) If the employer knows or has reason to know that an employment condition or practice seriously endangers the health or safety of its employees, and the condition or practice violates the TOSHA standards, a penalty of up to $7,000 for each violation can be assessed. Willful or repeated violations may draw a penalty of up to $70,000 for each violation.
!Municipalities that have elected to become public sector employees:
Tennessee Code Annotated, § 50-3-911 provides that: “No action shall be taken with reference to an employers which is a local government, other than the performance of inspections under §§ 50-3-301–50-3-306 performed for the purpose of determining the effectiveness of programs developed and registered by such employers under § 50-3-901, unless such local government has elected to be treated as a private employer.”
Municipalities that have elected to be treated as public sector employers are subject to being further cited for “failure to abate,” and to being reported to the governor and to the General Assembly. However, where the violation in question creates an imminent danger to employees, and the employer does not take immediate action to abate the danger, the commissioner can seek “compulsory process” under Tennessee Code Annotated, § 50-3-918. That statute authorizes the commissioner of labor “to issue an emergency stop order requiring the immediate alleviation of the condition.”
It is a Class C Misdemeanor:
For any person, without proper authorization, to give advance notice of an inspection under TOSHA. [Tennessee Code Annotated, § 50-3-501]
For any person to knowingly make a false statement, representation or certification in any application, record, report or other document filed or required to be filed or maintained under TOSHA. [Tennessee Code Annotated, § 50-3-502]
It is a Class A Misdemeanor for any employer to willfully violate any standard adopted by the commissioner when the violation causes the death of any employee. [Tennessee Code Annotated, § 50-3-503]
The Attorneys general in the various districts have the duty to assist the commissioner of labor upon his request to prosecute persons alleged to be subject to the above criminal penalties, and discrimination against employees who file complaints of TOSHA violations. [Tennessee Code Annotated, §50-3-905]
Case law on liability under TOSHA
Ellis v. Chase Communications, Inc., 63 F.3d 693, 1995 Fed.App. 263 (6th Cir. 1995).
Chase Communications owned a tower in Shelby County, Tennessee. Chase contracted with Nationwide Tower Company to clean and paint the tower. Nationwide subcontracted the job to Charles Raines. The contract between Nationwide and Raines provided that Raines would furnish all labor, materials and equipment, and supervision, and that the work would be performed in accordance with applicable OSHA rules and regulations. Ellis, an employee of Raines, fell 985 feet to his death while working on the tower. Ellis’ survivors sued Chase, alleging, among other things, that (1) Chase owed Ellis a nondelegable duty to protect him against harm caused by inherently dangerous work, and (2) Chase failed to comply with Tennessee’s OSHA (TOSHA) standards. With respect to (1), the employer owed no such duty to the employees of an independent contractor (citing Johnson v. EMPE, Inc., 837 S.W.2d 62 (Tenn. Ct. App. 1992). With respect to (2), the question, the Court said, is whether Chase was an employer within the meaning of the duty of employers to protect their workers under OSHA standards. No, answered the court, reasoning that independent contractors did not fit in that class. It also pointed out that even if an OSHA violation was evidence of Chase’s negligence, or conclusive evidence, in the case of negligence per se, “Chase must owe a duty to Ellis under a theory of liability independent of OSHA, as OSHA does not create a private right of action. OSHA regulations can never provide a basis for liability.”
Dempsey v. Correct Manufacturing Corp, 755 S.W.2d 798 (Tenn.. App. 1988).
Fayetteville Electric System is owned and operated by the City of Fayetteville. Correct Manufacturing Corp. manufactured a truck-mounted boom. James Carter, d/b/a Tennessee Alabama Line Maintenance had a tree trimming contract with the Fayetteville Electric System. Dempsey was an employee of James Carter. Dempsey was working on the ground helping to grease the cables on the truck-mounted boom, when it contacted a high voltage overhead conductor owned by Fayetteville Electric System. Dempsey, who was touching the truck, was electrocuted. Dempsey’s survivors sued the City of Fayetteville (among other defendants), alleging that the City had breached its duty to furnish Dempsey a safe place to work, and had violated various standards regarding the transmission of power under the National Electric Safety Code, OSHA Safety and Health Regulations for Construction, American Standards for Vehicle-Mounted Elevating and Rotating Aerial Devices, and American National Standards for Tree Operation. The essential element of Dempsey’s survivors was that the city had a nondelegable responsibility for safety concerning the operation and maintenance of the electrical system, and that tree trimming was part of the maintenance of the system. The city defended on several grounds, including the ground that (1) it was immune from suit under the TTLA (T.C.A. § § 29-20-201 et seq.), (2) that the plaintiff had not given it proper notice under the TTLA (T.C.A. § 29-20-301, 302 and 303), and (3) that the amount of recovery of the plaintiffs was limited by the TTLA (T.C.A. § 29-20-311 et seq.). The plaintiff produced an affidavit filed by a self-employed professional forensic engineer which cited and linked OSHA, TOSHA and certain OSHA construction standards for the proposition that the City of Fayetteville “is prohibited from the transfer of responsibilities for compliance with the various codes above, such as OSHA codes and the National Electrical Safety Code. Without mentioning the TTLA, the Court rejected that proposition, reasoning that:
Plaintiff argues that provisions of regulations regarding prime contractors and subcontractors are applicable to this case, but this Court does not agree. A general contractor is one who contracts with the owner of property to perform a complete schedule of construction or other work, and a subcontractor is one who is engaged by the general contractor to perform a part of the work undertaken by the general contractor. In the present case, the [Fayetteville Electrical] System was not a general contractor. It was the owner who contracted with Carter, the sole contractor to perform tree and vegetation trimming.
Thus, the statutes or regulations obligating general contractors to responsibilities for safety are inapplicable to the present case.
The Court also rejected the theory that tree trimming was part of “maintaining a power system.” It drew a “distinction between (1) the design, location, erection and servicing of the components of a power system which conducts dangerous electrical energy and (2) the auxiliary activities which are desirable for the convenience, appearance and preservation of various properties of the system, such as painting buildings, replacing roofs, maintaining laws and cutting vegetation .” Safety regulations for the former could not be delegated to others, but the latter could be delegated to independent contractors. For that reason, the safety regulations for truck mounted cranes used in cutting vegetation under contract with an electrical system do not render the contacting system liable for the violation of safety regulations of the tree-trimming contractor.
Mize v. Conagra, Inc., 734 S.W.2d 334 (Tenn. Ct. App. 1987).
The survivors of employees killed in a dust explosion in a grain facility sued Conagra. They conceded that the Workers’ Compensation Law is the exclusive remedy for all accidental injuries in Tennessee. However, they argued that Conagra was guilty of an intentional tort, and for that reason, the Workers Compensation Law was not the exclusive remedy for such injuries. . In support of their argument they pointed to Conagra’s violation of TOSHA regulations for allowing a dangerous level of dust to accumulate under conditions that Conagra knew or should have known that an explosion might occur. Following the explosion, Conagra had been fined $1,000 for violating TOSHA.
The Court rejected their argument, declaring that, “Our cases have established a breach of an employer’s duty to provide a safe place to work is not equated with an actual intent to injure nor intentional tortious conduct.” Citing an earlier case and a treatise on workers’ compensation law, the Court continued:
Since the legal justification for the common-law action is the nonaccidental character of the injury from the defendant employer’s standpoint, the common law liability of the employer cannot be stretched to include accidental injuries caused by the gross, wanton, wilful, deliberate, intentional, reckless, culpable, ormalicious negligence, breach of statute, or other misconduct of the employer short of general intentional injury... [The court’s emphasis].