On a morning in late March 2004, a crew of six workers was installing steel decking on the roof of a new high school gym in New Jersey. They didn't at first notice that an OSHA inspector was not only watching the project but also videotaping the men.

Employees were constructing the gym at West Orange High School when the inspector visited the site. The company's equipment truck had just left the high school to travel to another site. The inspector taped the workers, who included two foremen, working on the 30-foot-high gym roof without wearing personal fall protection. The OSHA steel erection standard requires workers to use protection whenever they work at least 15 feet above the ground.

Once the inspector had his footage, he approached the crew, learned that two were foremen, and interviewed each. When he was finished, he logged three citations against the company--all related to the lack of personal fall protection--and filed them with the Occupational Safety and Health Review Commission (OSHRC).

As is usual in such cases, the citations were handed over to an administrative law judge, who held a 5-day hearing the following year, in which the company's managers could testify. At the end of the hearing, the judge retained only one citation, but he fined the company $56,000 for that violation. OSHRC accepted the judge's findings without further question. The company appealed to the 3rd Circuit, which covers Delaware, New Jersey, and Pennsylvania.

Appellate judges first noted that they had jurisdiction to review OSHRC's findings. One of the foremen testified that he had miscalculated the height of the gym roof, but judges simply didn't believe that, based on the foreman's status and experience. Both foremen acknowledged when interviewed that the crew's harnesses and lanyards were not at the site, but on the equipment truck that had just left. The inspector had found that safety nets and guard rails were on the site--but they had not been erected. The foremen argued in court that there had been one or two harnesses, not the property of that crew, on the site, but that the workers had neither asked to use them nor hunted for them. Said judges, in effect, "It's the employer's duty to provide the equipment, not the employees' duty to look for it." So judges affirmed the OSHRC fine.