Texas Wesleyan Law Review

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Recently, the Fourth Circuit Court of Appeals chose to remain in the minority on this issue with its holding in L.R. Willson & Sons, Inc. v. Occupational Safety & Health Review Commission. This Note supports the Fourth Circuit's Willson holding. The rule followed by the Fourth Circuit and the other minority Courts of Appeals is in harmony with both the spirit and the letter of the law in question. This holding also has some sensible policy underpinnings. The Courts of Appeals holding the majority view never truly attempt to reconcile their position on this issue with federal statutory law and have never communicated a viable policy argument for burdening the employer cited with a serious safety violation with proving this defense. Part I of this Note gives a detailed narration of the Willson case. Part II examines portions of the Occupational Safety and Health Act of 1970 applicable to this issue. In Part III, this Note explores sample cases from courts favoring the majority view on this issue ("Employer's Burden" Circuits) while Part IV studies important decisions of minority courts ("OSHA Burden" Circuits). Part V analyzes these two positions and reveals the superiority of the minority courts' decisions. Finally, Part VI concludes this discussion and recommends that the Willson decision on this issue be made the law of the land.



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