The Meaning of “Willful”

Dukane Precast v. Perez | 14-3156

June 2015

OSHA investigations are not usually the source of significant legal developments, but Dukane Precast v. Perez, 14-3156, bucks the trend. After a Dukane Precast worker was seriously injured, OSHA investigated and cited the company with three serious violations, and one willful violation of OSHA regulations, which an administrative law judge upheld. Dukane appealed the findings, arguing inter alia  that willful violation was not in fact “willful.” 

Judge Posner, writing for the Court, provides a brief but very substantive review of the meaning “willfulness” in the context of OSHA enforcement, as well as other contexts – distinguishing between civil law’s understanding of “willfulness” and the term’s use in criminal law. At the end of the day, the Court concluded that under the OSHA regulation at issue, “willfulness” meant simple “recklessness.” More broadly speaking, the opinion provides a good resource for distinguishing between willfulness, recklessness, and negligence as those terms are used in both civil and criminal law. When confronted with these type of issues, Dukane Precast would be a good starting point for understanding these concepts, as well as demonstrating the complexities involved in defining willfulness and its related mens rea standards.