Labor & Employment Law Daily Wrap Up, SAFETY—8th Cir.: Employer denied review of general duty clause finding after fatal accident, (Oct 29, 2026)

By Ronald Miller, J.D.

The Secretary may prove the inadequacy of safety procedures by showing the employer did not follow them or properly communicate them to employees.

Substantial evidence on the record supported an administrative law judge’s conclusion that a trucking company violated the Occupational Safety Act’s general duty clause after an employee was fatally struck by a truck while moving an oil rig, ruled the Eighth Circuit. The employer argued that its existing safety measures were adequate and that OSHA failed to show a feasible abatement method. However, substantial evidence supported the finding that safety procedures were inadequately implemented, employees ignored alarms, high-visibility gear was not used, and no written struck-by-hazard policies existed. The appeals court agreed that an Internal Traffic Control Plan (ITCP) provided a feasible and effective means of reducing the hazard (Hall Trucking Inc. v. Secretary of Labor, No. 25-2769 (8th Cir. Oct. 28, 2026)).

Fatal workplace accident. The employer moves oil rigs. While moving a rig, a truck fatally struck an employee. OSHA cited the employer for violating the general duty clause. The citation said a feasible method of abatement was an internal traffic control plan (ITCP). An ITCP could include, among other things, plans to minimize interactions between employees and trucks; requirements that employees wear high visibility gear; and employee training. An administrative law judge (ALJ) concluded that the employer violated the general duty clause.

According to the employer, the ALJ’s decision was not supported by substantial evidence because the Secretary did not show (1) that the employer’s measures were inadequate, (2) the steps it should have taken to avoid citation, or (3) that an ITCP was feasible and effective.

General duty clause. The general duty clause requires that employers provide “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” For a violation of the general duty clause, the Secretary must prove: (1) an activity or condition in the employer’s workplace presented a hazard to an employee, (2) either the employer or the industry recognized the condition or activity as a hazard, (3) the hazard was likely to or actually caused death or serious physical harm, and (4) a feasible means to eliminate or materially reduce the hazard existed. At issue here was whether feasible means to eliminate or materially reduce the hazard existed.

To show feasible means, the Secretary must “specify the particular steps a cited employer should have taken to avoid citation, and... demonstrate the feasibility and likely utility of those measures.” “When an employer has existing safety procedures, the burden is on the Secretary to show that those procedures are inadequate.”

Existing safety measures. The employer argued that its existing safety measures were adequate. The Secretary may prove the inadequacy of safety procedures by showing the employer did not follow them or properly communicate them to employees.

The employer’s safety procedures did list back-up alarms, back-up cameras, employee training, high-visibility gear, and firing employees who did not follow safety rules. These procedures, however, were inadequate. During the incident here, the back-up camera had glare, the spotter had his back turned, and employees were not wearing high-visibility gear. Moreover, employees generally ignored back-up alarms. Further, the employer did not give employees written policies for struck-by hazards. Accordingly, substantial evidence supported the ALJ’s finding that the employer’s safety measures were inadequate.

Steps to avoid citation. Next, the employer argued that the Secretary did not show the steps it should have taken to avoid citation because an ITCP does not provide specific steps.

The Secretary can show specific steps to avoid citation by proposing a process in which an employer chooses between alternative means to abate a hazard.

According to the record here, developing an ITCP includes different options to reduce hazards, like plans to minimize interactions between employees and trucks, requiring high visibility gear, and employee training. Substantial evidence supported the ALJ’s finding that an ITCP provides specific steps to avoid citation.

Feasible ITCP. The employer countered that the Secretary did not present substantial evidence that an ITCP was feasible or effective because ITCPs are too rigid and are not an industry standard.

For purposes of OSHA, “feasible” means “capable of being done, executed, or effected.” A measure is “effective” if it “materially reduce[s] the hazard,” or “significantly reduce[s] the likelihood of the accident.”

The employer argued that ITCPs are not an industry standard. However, feasibility turns on “whether a precaution is recognized by safety experts as feasible, not whether the precaution’s use has become customary.”

The employer also claimed that ITCPs are too rigid to be effective because work site conditions would require the ITCPs to change 50 to 100 times a day. Because the record showed that ITCPs are flexible, account for site-specific conditions, and do not need continuous revision, the ALJ’s decision was supported by substantial evidence.

Expert witnesses. Finally, the employer argued that the ALJ’s rulings on expert witnesses were arbitrary and capricious because the ALJ: (1) ruled that the employer’s expert was unqualified, (2) excluded his opinions as legal conclusions but allowed similar opinions by the Secretary’s expert, and (3) made arbitrary and capricious credibility determinations.

The ALJ’s decision that the employer’s expert was unqualified was not arbitrary and capricious, according to the court. The ALJ ruled that the expert’s experience as an OSHA compliance officer did not make him an expert on hazardous conditions and workplace accident investigations. Thus, the ALJ’s ruling that this was not sufficient specialized knowledge about traffic control was not arbitrary and capricious. Since he did not analyze the evidence using scientific or technical knowledge, excluding his opinions as legal conclusions was not arbitrary and capricious.

On the other hand, the Secretary’s expert had specific experience in traffic control, so the ALJ’s conclusion that he was qualified was not arbitrary and capricious. The Secretary’s expert based his opinions on technical experience with ITCPs.

Accordingly, the employer’s petition for discretionary review was denied.

The case is No. 25-2769.

Judge: Benton, D.

Attorneys: Luke Austin Helms (Steptoe & Johnson) for Hall Trucking Inc. Edmund Baird, U.S. Department of Labor, for Secretary of Labor.

Companies: Hall Trucking Inc.

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