# Petition for Writ of Certiorari — Herman v. L. R. Willson & Sons, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1346%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1998 - **Citation:** 525 U.S. 962 ## Text Guess Cout, 0.8 PILED No. 4 8 18 § JUL e 7 5008 In the Supreme Court of the Units Baws OCTOBER TERM, 1997 ALEXIS M. HERMAN, SECRETARY OF LABOR, PETITIONER v. L.R. WILLSON AND Sons, INC. ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT PETITION FOR A WRIT OF CERTIORARI SETH P. WAXMAN Solicitor General Counsel of Record : EDWIN S. KNEEDLER M*RVIN KRISLOV Deputy Solicitor General Deputy Solicitor for . . EDWARD C. DUMONT N , Ope , ‘ ~ » . ational Operations Assistant to the Solicitor ALLEN H. FELDMAN General Associate Solicitor Department of Justice NATHANIEL I. SPILLER Washington, D.C. 20530-0001 Deputy Associate Solicitor (202) 514-2217 EDWARD D. SIEGER Attorney Department of Labor Washington, D.C. 20210 QUESTIONS PRESENTED Section 5(a)(2) of the Occupational Safety and Health Act of 1970, 29 U.S.C. 654(a)(2), provides that covered employers “shall comply with occupational safety and health standards promulgated under” the Act. Section 17(k) of the Act, 29 U.S.C. 666(k), classi- fies a violation of the Act as “serious” if it creates a substantial risk of death or serious physical harm, “unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.” The questions presented are: 1, Whether the Secretary must establish, as part of her affirmative case charging even a non-“serious” violation of Section 5(a)(2), that an employer knew or should have known of the existence of a violation. 2. Whether an employer’s claim that violation of an applicable standard resulted from “unpreventable employee misconduct” is an affirmative defense, as to which the employer must bear the burden of persua- sion. 3. Whether an employer’s claim that it did not know, and could not with the exercise of reasonable diligence have known, of the existence of a violation is likewise an affirmative defense to classification of a violation as “serious” under Section 17(k). (1) Il PARTIES TO THE PROCEEDING In addition to the parties listed in the caption, the Occupational Safety and Health Review Commission was named as a respondent in the court of appeals. See App., infra, 1a; see also id. at 14a. TABLE OF CONTENTS te hg gh IB CS SER OE NES CIR ean I ETE ONL TRS LA eee EL Statutory and regulatory provisions involved ............. PIN Sho cedshlaentdstitjapestieding cds hsscs cksnis céssieSsecceacss. 4 of decision (No. 93-1122, 1995). Compliance officers are given a wide latitude when inspecting outdoor activities, such as the construc- tion being performed by Willson. A construction site is not an area in which an employer has a reasonable expectation of privacy. According to the “open fields” doctrine: [AJn individual may not legitimately demand pri- vacy for activities conducted out of doors, in fields, except in the area immediately surrounding the home. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields. ; [Therefore,] the asserted expectation of privacy in open fields is not an expectation that “society CN Ee Te eR ee ee 5la recognizes as reasonable.” Oliver v. United States, 466 U.S. 170, 178-79 (1984), “An open field need be neither ‘open’ nor a ‘field’ as those term are used in common speech.” Jd., 466 U.S. at 180 n.11. See, é.g., United States v. Fahey, 769 F.2d 829 (1st Cir.1985) (“open fields” doctrine applied to mining site in open desert); [United States v.] Marbury, 732 F. 2d 390, 398 (doctrine applied to large tract of commercia! property, including gravel pits and roadways). ... See also Ackerman Enterprises, Inc. [10 BNA OSHC 1709, 1712, n.13] (“There is no violation of fourth amendment rights when a government agent’s observations occur in ‘the open fields’. . . even if the government agent trespasses on pri- vate property to make his observations”), Tri-State Steel, 15 BNA OSHC 1903, 1909-10 (Nos. 89-2611 and 89-2705, 1992), The videotape is admissible under the “open fields” doctrine.” * Although the Secretary also argued that Willson’s work- site was in “plain view,” Anderson’s inspection fails to meet the requirements of the “plain view” exception. There are two significant limitations to the “plain view” doctrine. . . . [TJhe “plain view” doctrine can only be applied when the OSHA inspectors make their “plain view” observations from a location where they are legally justified in being. . . . “The second limitation is that the discovery of evidence in plain view must be inadvertent. . . . [W]here the discovery is anticipated, where the police know in advance the location of the evidence and intend to seize 52a ALLEGED VIOLATION In order to establish a violation of an occupational safety or health standard, the Secretary has the burden of proving: (a) the applicability of the cited standard, (b) the employer’s noncompliance with the standard’s terms, (c) employee access to the violative conditions, and (d) the employer’s actual or constructive knowledge of the violation (i.e., the employer either knew or with the exercise of reasonable diliyence could have known, of the violative conditions). Atlantic Battery Co., 16 BNA OSHC 2131, 2138 (No. 90-1747, 1994). it, the situation is altogether different.” Coolidge [v. New Hampshire, 403 U.S. 443, 469-470]. Tri-State Steel, 15 BNA OSHC at 1909. Anderson was legally justified in being on the roof of the Peabody Hotel, having received permission from the hotel’s director of safety. His viewing of the evidence was, however, anything but inadvertent. His supervisor sent Anderson to the Peabody Hotel for the express purpose of gaining a vantage point from which he could view the Center. Anderson arrived at the hotel equipped with a video camera in anticipation of taping Willson’s worksite. The videotape does not constitute a “plain view” inspection. 58a The Secretary alleges that Willson committed a willful violation of § 1926.750(b)(1)(ii).2 The citation reads: On buildings or structures not adaptable to tempo- rary floors, and where scaffolds are not used, safety nets shall be installed and maintained whenever the potenzial fall distance exceeds two stories or 25 feet. The nets shall be hung with sufficient clear- ance to prevent contacts with the surface of struc- tures below. In the alternative, the Secretary’s citation alleges a willful violation of § 1926.105(a), that states: Safety nets shall be provided when workplaces are more than 25 feet above the ground or water sur- face, or other surfaces where the use of :adders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical. a) Applicabili The applicability of § 1926.750 and § 1926.105(a) to fall hazards during steel erection has been exten- sively litigated before the Commission and the courts of appeals. The position now taken by the Com- mission, which is in line with that of the courts of appeals in four different circuits, is that § 1926.750 applies to falls to the interior of a structure during * § 1926.750(b)(1)(ii) provides: On buildings or structures not adaptable to temporary floors, and where scaffolds are not used, safety nets shall be installed and maintained whenever the potential fall dis- tance exceeds two stories or 25 feet. The nets shall be hung with sufficient clearance to prevent contacts with the surface of structures below. 54a steel erection, and that § 1926.105(a) applies to falls to the exterior of a structure during steel erection. See Brock v. Williams Enterp., 832 F.2d 567 (11th Cir. 1987); Brock v. L.R. Willson & Sons, Inc., 773 F.2d 1377 (D.C. Cir. 1985); Donovan v. Adams Steel Erec- tion, 766 F.2d 804 (8d Cir. 1985); Donovan v. Daniel Marr & Sons, 763 F.2d 477 (1st Cir. 1985); Bratton Corp., 14 BNA OSHC 1893 (No. 83-132, 1990). Willson does not dispute the applicability of § 1926.750(b)(1)Gi) to the present case. Willson argues, however, that § 1926.105(a) is inapplicable because any fall hazard to which its employees were exposed was to the interior of the structure. Anderson testified that during the time he observed Manley and McVay, they were exposed to fall hazards to both the interior and the exterior of the structure (Tr. 24). James Willson, Willson’s vice-president of field operations, stated that, based on his viewing of Exh. C-4, Manley and McVay would have fallen to the interior of the structure (Tr. 174). Manley, who was in the best position to know, stated that if he had fallen, it would have been to the structure’s interior (Tr. 83). Manley’s testimony is the most convincing on this issue. It is determined that Willson’s employees were not exposed to an exterior fall hazard. Therefore, § 1926.105(a) is inap- plicable to the present case. _ The record establishes that Willson’s employees were working on a structure not adaptable to tempo- rary floors, and that they were using no form of fall protection. Willson argues that the Secretary failed to prove that the potential fall distance exceeded two stories or 25 feet because Anderson did not measure 55a the distance (Tr. 44). This argument is without merit. Anderson estimated the distance to be more than 80 feet (Tr. 10). Manley estimated the potential fall distance to be approximately 75 feet (Tr. 90). Both witnesses were credible and appeared more than capable of determining whether or not a distance exceeded 25 feet. The lowest estimate was three times the distance that triggers the standard’s appli- cability. Based on the testimony of Anderson and Manley, it is concluded that the potential fall distance was between 75 and 80 feet. The Secretary has proven that Willson failed to comply with § 1926.750(b)(1)(ii). (c) Exposure It is undisputed that Manley directed McVay to accompany him to work in an area where the fall protection cable had not been strung. Manley and McVay were exposed to the hazard of falling. (d) Employer Knowledge Manley considered himself to be and identified himself to Anderson as a foreman for Willson (Tr. 26, 77). Since Manley was one of the employees observed working without fall protection, he had actual knowledge of the standard’s violation. “The actual or constructive knowledge of the employer’s foreman or supervisor can be imputed to the employer.” Jersey Steel Erectors, 16 BNA OSHC 1162, 1164 (No. 90-1307, 1993). Willson argues that, despite Manley’s designation as a foreman, he was not a supervisory employee and that his knowledge cannot be imputed to the company. Willson claims that Manley was actually “more of a leadman” assigned to lead his crew of three men every 56a day. Manley was paid the same as the other iron- workers and had no power to hire or fire employees (Tr. 151-152). “General foremen,” which Willson says are the real supervisory employees, are paid a higher hourly wage than the other ironworkers and are given company trucks. Willson had not given Manley a truck (Tr. 182-183). The criterion for being considered a foreman under the Act is not stringent. “An employee who had been delegated authority over other employees, even only temporarily, is considered to be a supervisor for the purposes of imputing knowledge to an employer.” Tampa Shipyards Inc., 15 BNA OSHC 1533, 1537 (Nos. 86-360 and 86-469, 1992). Even though Manley was not accorded all the privileges and responsibili- ties of Willson’s general foremen, he did wield author- ity over his crew. Counsel for Willson questioned James Willson regarding Manley’s duties (Tr. 151-153): Willson: Randy had three guys and himself that he was to work with on certain areas. Q.: What, besides directing the employees on instructions you gave him, authority did he have with respect to the crew? Willson: Well, being the leadman, he determined how he was going to do his work in the area and when he was supposed to do it. Q.: Any other? Willson: Pertaining to? 57a Q.: Supervising these individuals. Willson: Yes. He would have certain respon- sibilities to follow company policies and procedures. Q.: What, if any, employees were not re- sponsible for enforcing company policy? Willson: Well, the average ironworker wasn’t. They were responsible for their own personal protection. Randy would be to enforce to his limits, if he had a problem. Then it would be my overall responsibility. Willson delegated the authority to Manley to in- struct his crew in its work assignment each day. Manley felt the duty to keep his men busy and planned ahead “so they never had to stop [work]” (Tr. 78). He told them where and how to perform their assigned duties. He had responsibility to enforce company policy on his crew, a responsibility in which his crew did not share. “It is the substance of the delegation of authority that is controlling, not the formal title of the employee having this authority; an employee who is empowered to direct that. corrective measures be taken is a supervisory employee.” Dover Elevator Co., 16 BNA OSHC 1281, 1286 (No. 91-862, 1993). The Secretary has established that Manley was a supervisory employee within the meaning of the Act. Therefore, his knowledge that he and McVay were working at least 75 feet above the ground with no fall 58a protection is imputed to Willson. Willson had knowl- edge of the violation. The Secretary has proven that Willson committed a violation of § 1926.750(b)(1)(ii). WILLSON’S UNPREVENTABLE EMPLOYEE MISCONDUCT DEFENSE Willson asserts the affirmative defense that any violation it committed was the result of unpreventable employee misconduct. In order te prove the affirma- tive defense of unpreventable employee misconduct, an employer must prove that: (1) it had established work rules designed to prevent the violation; (2) the work rules had been adequately com- municated to its employees; and (3) it had taken steps to discover violations, and had effectively enforced the rules when violations had been discovered. Falcon Steel Co., 16 BNA OSHC 1179, 1193 (No. 89-3444, 1993). (1) Established Work Rules Willson had an established work rule requiring its employees to tie off at heights above 10 feet (Tr. 143). Anderson testified that Willson had a good written ~~ safety program (Tr. 70). Lawrence Falck, an area director for OSHA, testified that Willson’s safety rules were adequate as written (Tr. 119). ‘ This is more stringent than the OSHA standard, which requires employees to tie off at heights of 25 feet. 59a Falck also testified that Willson adequately com- municated its safety rules to its employees (Tr. 119). Willson held weekly safety meetings which empha- sized the use of fall protection (Tr. 84). (3) Effective Enforcement The only element of the defense that the Secretary disputes is whether Willson effectively enforced its work rule. In its defense, Willson asserts that it has a disciplinary program by which employees are repri- manded for safety infractions (Exhs. R-12, R-13). Willson hired a safety consultant periodically to in- spect its worksite to ensure compliance with safety standards (Tr. 153). Willson fired ironworkers at the Center worksite for not using fall protection (Tr. 130). Well, we going to get right down to it, if OSHA was on the job, yes. If OSHA wasn’t on the job, it’s a completely different story. . . . Because OSHA’s on the job, we all got radios in our hand, _telling you right where they’re going tobe. SERRE every section. Every time they walk around the corner, somebody’s on the radio telling us right where they’re at. “I got something. They’re on the corner,” hollering at us up on the radio, “All right, they’re coming in your area. Make sure al] your people is tied off. Make sure everything is safety there.” 60a This admission provides insight into Willson’s atti- tude towards enforcement, especially coming from a supervisory employee. Where a supervisory employee is involved, the proof of unpreventable employee misconduct is more rigorous and the defense is more difficult to establish since it is the supervisor’s duty to protect the safety of employees under his supervi- sion . .. . A supervisor’s involvement in the misconduct is strong evidence that the employer’s safety program was lax. Archer-Western Contractors Ltd., 15 BNA OSHC 1013, 1017 (No. 87-1067, 1991). What Manley described implicates Willson’s employees throughout its work- site. Willson did not contradict or discredit Manley’s description of what occurs during an OSHA inspec- tion. Manley stated that he expected to be disciplined only if OSHA was on the site. Willson failed to estab- lish that its work rules were effectively enforced. Therefore, its unpreventable employee misconduct defense must fail. WHETHER THE VIOLATION WAS WILLFUL The Secretary alleged that Willson’s violation of $1926.750(b)(1)(ii) was willful. A willful violation is one committed with intentional, knowing or voluntary _disregard for the requirements_of the—Act, or with plain indifference to employee safety. A willful violation is differentiated from others by an employer’s heightened awareness of the illegal- ity of the conduct or conditions and by a state of mind, 7.e., conscious disregard or plain indiffer- ence for the safety and health of empioyees. Logically, then, a willful charge is not justified if 6la an employer has made a good faith effort to comply with a standard or eliminate a hazard, even though the employer’s efforts are not entirely effective or complete. Falcon Steel Co., 16 BNA OSHC at 1181. The Secretary asserts the following reasons in his post-hearing brief for classifying the charge as willful: e The violation occurred over a period of 45 minutes. e Manley and McVey were working at heights in excess of 75 feet. * Manley chose to work rather than waiting for safety cables to be sent up. e Manley was a supervisory employee. ¢ Willson was aware that it was having ongoing problems concerning the use of fall protection at its site. Of these five factors, only the last two have any bearing on whether Willson’s violation was willful or not. The first three items are factors in establishing that Willson committed a serious violation. They do __not_tend to show that-Willson-acted-with-intentional-—— disregard or plain indifference to employee safety. The fact that Manley committed a violation of the Act even though he was supervisory employee could dem- onstrate a tendency for an intentional disregard of the Act’s requirements. The strongest evidence the Secretary has of willful conds-t is Willson’s awareness of problems relating 62a to fall protection prior to the violation at issue. The Secretary had issued a citation for failure to use fall protection approximately two months before the inspection that gave rise to the present case. Even though the Secretary subsequently withdrew the citation, Willson was on notice that one of its em- ployees had violated its safety rules. A few days before Anderson’s inspection in the present case, CKH notified Willson that one of its ironworkers had been observed working without fall protection (Exh. C-5; Tr. 175).® Despite the evidence of these prior incidents, the Secretary has failed to establish that Willson’s violation of §1926.750(b)(1)(ii) was willful. The record does not demonstrate that Willson exhibited either intentional disregard for the Act, or plain indifference to its employees’ safety. Willson has a good written safety program. It holds weekly safety meetings. Frank McDaniel, CKH’s safety manager for the Center, testified that Willson was a safe steel erector “as ironworkers go” (Tr. 129). He stated that most of the problems Willson had with getting employees to tie off came from employees who had not been with the company for very long® “Of the group or the individu- als who seemed to constantly violate the standards, 5 Although arguing that the Secretary failed “to prove” the CKH notification referred to a Willson employee, James Will- son testified that he believed it to be “a Willson safety violation and [the notice was meant] to make sure we're reviewing it with our men, which we did” (Tr. 175). § Willson’s contract for the Center specified that Willson was required to hire a certain percentage of local workers for the job. James Willson estimated that 80% to 90% of Willson’s employees at the Center were local (Tr. 148). 63a either the Willson safety program or OSHA in gen- eral, they seemed to be local hires predominately. I really cannot remember of any time that I had to write up an actual Willson employee who had been with the company for any length of time” (Tr. 130).’ McDaniel said that he knew of ironworkers that Willson had fired for failing to use fall protection (Tr. 130). The fact that the problem employees were ones more recently hired does not excuse Willson’s violation of the cited standard. It is the employer’s responsibility to enforce the OSHA standards with respect to all of its employees. But it is significant that Willson’s long term employees exhibited none of the recalcitrance of the recently hired employees in using fall protection. This indicates that the com- pany did emphasize fall protection and that the vet- eran employees had absorbed this ethos. The viola- tion is properly classified as serious. PENALTY DETERMINATION “Section 17(j) of the Act, 29 U.S.C. § 666(j), re- quires that when assessing penalties, the Commis- sion must give ‘due consideration’ to four criteria: the size of the employer’s business, gravity of the violation, good faith, and prior history of violations.” Hern Iron Works, Inc., 16 BNA OSHC 1619, 1624. Willson employed approximately 130 employees at the time of the inspection. On the center project itself Willson had reduced its workforce to 30 em- ployees by that date (Tr. 154). Willson cooperated ? Manley had worked for Willson for less than a year at the time of Anderson’s April 1994 inspection (Tr. 77). 64a with the inspection and demonstrated good faith in its dealings with the Secretary (Tr. 73). The Secretary had previously cited Willson for violations of the Act (Exh. R-1). The gravity of the violation is the most significant factor to be considered when assessing a penalty. “The gravity of a particular violation depends upon such ma:ters as the number of employees exposed, the duration of the exposure, the precautions taken against injury, and the likelihood that any injury would result.” Jd. In the present case, two employees were exposed for the extended period of 45 minutes. They took no precautions against falling. They were exposed to a fall hazard of at least 75 feet, which would have resulted almost certainly in death had they fallen. The gravity of the violation is extremely high. Basec upon these factors, it is determined that a penalty in the amount of $7,000.00 is appropriate. FINDINGS OF FACT AND CONCLUSIONS OF LAW The foregoing constitutes the findings of fact and conclusions of law in accordance with Federal Rule of Civil Procedure 52(a). ORDER Based upon the foregoing decision, it is hereby Oe A eaten Seniatiniedeede eta 65a Item 1 of Citation No. 1, alleging a violation of $1926.750(b)(1)(ii), is affirmed as serious, and a penalty of $7,000.00 is assessed. /s/ NANCY J. SPIES NANCY J. SPIES Judge Dated: May 25, 1995 66a APPENDIX F UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 97-1492 94-1546 L. R. WILLSON AND SONS, INCORPORATED, PETITIONER v. OCCUPATIONAL SAFETY & HEALTH REVIEW COMMISSION , RESPONDENT [Filed: March 27, 1998] ON PETITION FOR REHEARING WITH SUGGESTION FOR REHEARING IN BANC The government’s petition for rehearing and sug- gestion for rehearing in banc were submitted to this Court. As no member of this Court or the panel requested a poll on the suggestion for rehearing in banc, and As the panel considered the petition for rehearing and is of the opinion that it should be denied, 67a IT IS ORDERED that the petition for rehearing and suggestion for rehearing in banc are denied. For the Court, /s/ PATRICIA S. CONNOR CLERK 68a APPENDIX G STATUTORY AND REGULATORY PROVISIONS 1. Section 5 of the Occupational Safety and Health Act of 1970, Pub. L. 91-596, 84 Stat. 1598, 29 U.S.C. 654, provides as follows: § 654. Duties of employers and employees (a) Each employer— (1) shall furnish to each of his em- ployees employment and a place of employ- ment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees; (2) shall comply with occupational safety and health standards promulgated under this chapter. (b) Each employee shall comply with occu- pational safety end health standards and all rules, regulations, and orders issued pursuant to this chapter which are applicable to his own actions and conduct. 2. Section 17 of the Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, 84 Stat. 1606, as amended, 29 U.S.C. 666, provides as follows: § 666. Civil and criminal penalties (a) Willful or repeated violation Any employer who willfully or repeatedly vio- lates the requirements of section 654 of this title, any standard, rule, sr order promulgated pursuant to section 655 of this title, or regulations pre- scribed pursuant to this chapter, may be assessed a . 69a civil penalty of not more than $70,000 for each violation, but not less than $5,000 for each willful violation. (b) Citation for serious violation Any employer who has received a citation for a serious violation of the requirements of section 654 of this title, of any standard, rule, or order promulgated pursuant to section 655 of this title, or of any regulations prescribed pursuant to this chapter, shall be assessed a civil penalty of up to $7,000 for each such violation. (ec) Citation for violation determined not serious Any employer who has received a citation for a violation of the requirements of section 654 of this title, of any standard, rule, or order promulgated pursuant to section 655 of this title, or of regula- tions prescribed pursuant to this chapter, and such violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to $7,000 for each such violation. (d) Failure to correct violatiou Any employer who fails to correct a violation for which a citation has been issued under section 658(a) of this title within the period permitted for its correction (which period shall not begin to run until the date of the final order of the Commission in the case of any review proceeding under section 659 of this title initiated by the employer in good faith and not solely for delay or avoidance of penalties), may be assessed a civil penalty of not more than $7,000 for each day during which such failure or violation continues. 70a (e) Willful violation causing death to employee Any employer who willfully violates any stan- dard, rule, or order promulgated pursuant to section 655 of this title, or of any regulations prescribed pursuant to this chapter, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months, or by both; except that if the conviction is for a violation committed after a first conviction of such person, punishment shall be by a fine of not more than $20,000 or by imprisonment for not more than one year, or by both. (f) Giving advance notice of inspection Any person who gives advance notice of any inspection to be conducted under this chapter, without authority from the Secretary or his designees, shall, upon conviction, be punished by a fine of not more than $1,000 or by imprisonment for not more than six months, or by both. (g) False statements, representations or certification Whoever knowingly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this chapter shall, upon conviction, be punished by a fine of not more than $10,000, or by imprisonment for not more than six months, or by both. (h) Omitted Tla (i) Violation of posting requirements Any employer who violates any of the posting requirements, as prescribed under the provisions of this chapter, shall be assessed a civil penalty of up to $7,000 for each violation. (j) Authority of Commission to assess civil penalties The Commission shall have authority to assess all civil penalties provided in this section, giving due consideration to the appropriateness of the penalty with respect to the size of the business of the employer being charged, the gravity of the violation, the good faith of the employer, and the history of previous violations. (k) Determination of serious violation For purposes of this section, a serious violation shall be deemed to exist in a place of employment if there is a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. (1) Procedure for payment of civil penalties Civil penalties owed under this chapter shall be paid to the Secretary for deposit into the Treasury of the United States and shall accrue to the United States and may be recovered in a civil action in the name of the United States brought in the United States district court for the district where the 72a violation is alleged to have occurred or where the employer has its principal office. 3. The occupational safety standard involved in this case, 29 C.F.R. 1926.750(b)(1)(ii), provides as fol- lows: § 1926.750 Flooring requirements. * * * * * (b)(1)(ii) On buildings or structures not adaptable to temporary floors, and where scaffolds are not used, safety nets shall be installed and maintained whenever the potential fall distance exceeds two stories or 25 feet. The nets shall be hung with sufficient clearance to prevent contacts with the surface of structures below. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_1346%3A1. Public record. Not legal advice.