If inspectors do see a trench and stop, they are not limited to inspecting the trench—they may inspect the entire jobsite and issue citations for fall protection violations, electrical problems, saws without guards, or any other rule violation. And while OSHA doesn't have authority to order a work stoppage, it can ask the employer to voluntarily pull employees out of an unsafe situation like an unshored trench. “For the most part they do,” says Tomich—and if they don't, violations are likely to be termed “willful” and draw heavier fines.
In the case of a trench, the chain of responsibility for worker safety may be unclear, notes Tomich. “You could have an excavator's guy and a surveyor's crew down there with the plumber laying pipe. And each employer is responsible for their own people.” Employers have a valid defense if they can show that they did not create the condition and had no way to avoid it or to provide interim protection, says Tomich, but that's a hard case to make.
And Tomich has little patience for employers who he senses are not making a good faith effort. “A lot of people don't see what we see,” he says. “They'll say to me, ‘Why are you busting my chops? You are just too passionate about all this.' But I say, ‘You know, I have seen a lot of people die.' ” His office investigates a worker fatality, on average, once a month, says Tomich. “We have sat and watched people die in a trench while people were trying to rescue them. And we engage the family, we engage the co-workers. Those are the walking wounded. And so if I can annoy you, and rattle your cage, and be in your face to do the right thing, I will—because it may be your lucky day. Because by changing your attitude a little bit, and getting you to take that little extra time, I may save your life.”