Willful Violations Penalties In California

Years ago, the United States Supreme Court stated willfulness in the context of a regulatory statute imposing civil penalties does not imply a showing of evil purpose. Rather, the term "often denotes that which is 'intentional, or knowing, or voluntary, as distinguished from accidental,' and that it is employed to characterize 'conduct marked by careless disregard whether or not one has the right so to act.' . . . But it does not mean with intent to injure . . . or to inflict loss . . . because such intent on the part of the actor is hardly within the pale of actual experience or reasonable supposition. . . . We are persuaded that it means purposely or obstinately and is designed to describe the attitude of an actor, who, having a free will or choice, either intentionally disregards the statute or is plainly indifferent to its requirements." (U.S. v. Illinois Cent. R. Co. (1937) 303 U.S. 239, 242-243 58 S. Ct. 533, 535, 82 L. Ed. 773, 777.) California Occupational Safety and Health Act of 1973's federal counterpart, the Occupational Safety and Health Act of 1970, 29 United States Code section 651 et seq., also imposes penalties for willful violations without defining the term "willful." A majority of the federal courts of appeals, including the Ninth Circuit, have interpreted the term "willful" in that statute consistent with the Supreme Court's interpretation in Illinois Cent. R. Co. Hence, " ' "willful" means action taken knowledgeably by one subject to the statutory provisions in disregard of the action's legality. No showing of malicious intent is necessary. A conscious, intentional, deliberate, voluntary decision properly is described as willful, "regardless of venial motive." Citation.' " ( Nat. Steel, etc. v. Occupational S. & H. R. Com'n (9th Cir. 1979) 607 F.2d 311, 314-315, quoting Intercounty Const. Co. v. Occupational S. & H. R. Com'n (4th Cir. 1975) 522 F.2d 777, 779-780 (hereafter, Intercounty Construction Co.).) Other federal cases reaching the same conclusion include F. X. Messina Const. Corp. v. Occupational S. & H. R. C. (1st Cir. 1974) 505 F.2d 701; A. Schonbek & Co., Inc. v. Donovan (2d Cir. 1981) 646 F.2d 799; Georgia Elec. Co. v. Marshall (5th Cir. 1979) 595 F.2d 309; Empire-Detroit Steel v. Occupational Safety, etc. (6th Cir. 1978) 579 F.2d 378; Western Waterproofing Co., Inc. v. Marshall (8th Cir. 1978) 576 F.2d 139, cert. den. (1978) 439 U.S. 965 99 S. Ct. 452, 58 L. Ed. 2d 423; and Kent Nowlin Const. v. Occupational Safety and Health (10th Cir. 1979) 593 F.2d 368. The Third Circuit has imposed a more stringent definition, and the District of Columbia Circuit has refused to side with either position. (See Frank Irey, Jr., Inc. v. Occupational Safety & H. R. Com'n (3d Cir. 1975) 519 F.2d 1200, affd. on other grounds (1977) 430 U.S. 442 97 S. Ct. 1261, 51 L. Ed. 2d 464; Cedar Const. Co. v. Occupational Safety and Health (D.C. Cir. 1978) 587 F.2d 1303 190 App. D. C. 406.) The few state court cases reporting on this issue involve states that have adopted either the federal statute or the federal standard of willfulness, and each follow the Ninth Circuit's interpretation. (See OR-OSHA v. Roseburg Lumber Co. (1997) 151 Or. App. 236 949 P.2d 307; Northwest Metal Fab & Pipe, Inc. v. State Dept. of Labor & Industries (1996) 84 Wn. App. 1018; Div. of OSHC v. Ball, Ball & Brosamer (1992) 172 Ariz. 372 837 P.2d 174.) The federal courts reasoned "to require bad intent would place a severe restriction on the statutory authority of OSHA to apply the stronger sanctions in enforcing the law, a result we do not feel was intended by Congress. Rather, we agree with the Commission that willfulness is used in the mere cognitive sense in civil statutes, and connotes bad purpose only when an element of a criminal act." (Intercounty Construction Co., supra, 522 F.2d at p. 780.)