Safety & Compliance News

Better if it's the employee’s choice

The commute must be “ordinary.” What makes a midday commute “ordinary” rather than compensable travel time between job sites can be that the employee, not the employer, decides to split the day with the commute in the middle. In some cases, the alternative schedule must be voluntary on the part of the employee; it must be for the benefit and convenience of the employee.

Put it in writing

To help ensure (and prove) that the decision is voluntary, employers should document, in writing, any employee requests for a split schedule. Employers are free to gather this documentation however they see fit, but it should be a valid record showing who actually proposed the schedule flexibility.

No work during the commute

During a midday commute, employees must be free to spend the travel time however they like. If employers expect employees to perform work during the commute, the time becomes hours worked, and employers must pay employees for it.

That means no calls, no texts, no expectation of availability during the drive. Having a policy indicating that employees aren’t on duty during a midday commute is a good start. But the policy is hollow (and risky) if managers or supervisors contact employees about a work issue during the drive.

Managers and supervisors should be well aware of this detail, so employers don’t end up with an unwanted wage claim.

Key to remember: Employers can take advantage of the DOL’s guidance, but must ensure some details are met.

A death classified as "Serious"

Last July, a worker entered a fuel storage tank at a petroleum services worksite and was fatally exposed to benzene and toluene. Federal investigators found the company had:

An injury classified as "Willful"

Compare that to a grain-handling company investigated the same season. A seasonal laborer suffered a serious but non-fatal foot injury after stepping through an unguarded sump hole onto a moving paddle-style unloading conveyor. Nobody died, but OSHA's response was significantly harsher with two willful violations, one serious violation, and three other-than-serious citations for:

• Failing to lock out and tag out machinery.
• Failing to protect workers from the sump hole hazard.
• Failing to provide grain-handling training.

The penalty totaled $276,407 in fines, more than four times the penalty for the fatal chemical exposure case.

Why does the gap exist

This is the part employers most often misunderstand. OSHA's classification system is not primarily a measure of how bad the outcome was. It's a measure of what the employer knew and chose to do about it. The five-tier system runs, roughly:

• De minimis — a technical violation with no direct relationship to safety, typically resulting in no penalty.
• Other-than-serious — a violation related to safety and health that probably wouldn't cause death or serious harm.
• Serious — a violation carrying substantial probability of death or serious physical harm, where the employer knew or should have known about the hazard but did not necessarily act with intent.
• Willful — a violation the employer committed intentionally and knowingly, or with plain indifference to the law. A classic example is knowingly exposing workers to hazardous chemicals without PPE after having already been warned.
• Repeat — a violation substantially similar to one the employer was already cited for within the past five years.

As tragic as the petroleum tank case was, it appears to reflect program failures OSHA could not establish as knowing or willful based on the evidence developed. The company lacked required programs, but investigators did not classify the violations as intentional disregard. The grain-handling case crossed that line because the specific failures such as bypassing lockout/tagout or leaving a known hazard unguarded read to investigators as choices rather than gaps.

What it could mean for your program

Severity of outcome and severity of classification are not the same axis. A near-miss with no injury at all can become a willful citation if an inspector believes you knew about the hazard and didn't act. A fatality can remain "serious" if the failures look more like systemic gaps than deliberate choices.

That means the conversation your safety team has after every incident should not just be "how bad was it?" It should be "what does our documented knowledge of this hazard look like and does our corrective action history support 'we didn't know' or contradict it?" Because once an inspector can show the second, the classification attached to your citation and the penalty attached changes dramatically.

Keys to remember: OSHA penalties are influenced not only by the severity of an incident, but also by what the employer knew about the hazard and the steps taken, or not taken, to correct it.