C&W Facility Services, Inc. v. Secretary of Labor, No. 20-11789 (11th Cir. 2022)
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Norton operated a pressure washer on a Tampa Convention Center dock that had no guardrails or barricades and was surrounded on three sides by water. Norton fell into the bay while working and drowned. He was wearing rubber boots and was not wearing a personal flotation device. During an investigation, an OSHA officer did not identify any incidents of employees falling off the dock before Norton’s accident, but did learn that two employees who had pressure washed the same dock voluntarily wore personal flotation devices. OSHA issued a citation to C&W for its failure to provide and require the use of a personal flotation device and proposed a $12,675 penalty.
Eleventh Circuit precedents required proof either that the use of personal flotation devices was an industry custom or that C&W had “clear actual knowledge that personal protective equipment was necessary under the circumstances.” OSHA did not present any evidence of industry custom. An ALJ concluded that C&W had “clear actual knowledge" that personal protective equipment was necessary, given “an open and obvious hazard.” The Eleventh Circuit vacated the citation. The Commission misapplied the standard for actual knowledge in the absence of industry custom. A finding that C&W had actual knowledge of the requirement to provide and require the use of personal flotation devices for employees when they pressure washed the dock was not supported by substantial evidence.
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