The Occupational Safety and Health Review Commission vacated an Occupational Safety and Health Administration (OSHA) General Duty Clause citation of a security firm following a mass shooting at a Boise, Idaho, shopping mall. In the February 5 decision, a review commission administrative law judge (ALJ) concluded that the Department of Labor (DOL) didn’t establish the necessary evidence for a violation under the General Duty Clause of the Occupational Safety and Health (OSH) Act.

The ALJ’s decision became a final order of the commission.

During the mass shooting on October 25, 2021, at Boise Towne Square Mall, a mall patron shot and killed two people, including a mall security guard employed by Professional Security Consultants, Inc. (PSC), and injured several others. An OSHA compliance safety and health officer (CSHO) began an investigation the next day.

OSHA cites employers using its authority under the General Duty Clause when no established federal standard applies. There’s no federal standard for workplace violence.

OSHA cited PSC on April 25, 2022, alleging the employer failed to protect its security guard from a recognized workplace hazard and proposing a $14,502 penalty.

The ALJ conducted a trial in Boise from January 29 to February 2 and from May 15 to 17, 2024.

In his decision, ALJ Brian A. Duncan cited review commission precedent established in the commission’s Integra Health Management, Inc. decision. In Integra, the commissioners established their framework for evaluating General Duty Clause citations for workplace violence hazards.

In that case, a company service coordinator in Tampa, Florida, was killed while visiting the home of a client suffering from cardiovascular disease and schizophrenia. During the home visit, the service coordinator was repeatedly stabbed by the client, who had a history of criminal, violent behavior.

The review commission concluded in Integra that the violent conduct of a third party constituted a recognized hazard within the scope of the General Duty Clause. The commissioners affirmed OSHA’s citation and its recommended abatement measures, which included determining the behavioral history of the company’s clients and providing employees with reliable means of summoning assistance.

The commission uses a four-prong test for reviewing General Duty Clause violations. The DOL must show that:

• “A condition or activity in the workplace presented a hazard.”
• “The employer or its industry recognized this hazard.”
• “The hazard was likely to cause death or serious physical harm.”
• “A feasible and effective means existed to eliminate or materially reduce the hazard.”

PSC’s security guards had encounters with the mall patron before the October 25 shooting. The shooter repeatedly carried a firearm into the mall in violation of the mall’s posted “Code of Conduct.” Idaho allows open carry without a permit, but the mall’s owner has a clear no-firearms policy, which PSC’s security guards must enforce almost weekly. Guards ask patrons carrying firearms to leave the mall or secure their firearms in a locked vehicle before returning.

On the day of the shooting, a PSC supervisor approached the patron. Following a discussion, the patron began walking away, then turned, drew his firearm, and shot and killed the PSC supervisor. He ran into a department store and shot several other people, killing a mall patron and wounding several others. He ultimately shot and killed himself.

The DOL’s citation hinged on the employer’s identifying the individual patron as a recognized hazard. The ALJ concluded that based on earlier encounters with the man, PSC couldn’t have known he would become violent.

Citing an employer for the hazard posed by a mass shooter is beyond the scope of the agency’s authority under the OSH Act, Duncan concluded.