In construction cases, often a question of vicarious liability arises when a supervisor, whose conduct and knowledge may generally be imputed to the employer as the employer’s agent, is himself or herself involved in the violative condition. Often, OSHA will issue citations for these types of violations as “willful” (which can place the employer under the “Severe Violator Enforcement Program” or, worse yet, impose criminal liability when a fatality occurs in connection with the violation).
This theory of imputed liability is also used by OSHA to reject the employer’s affirmative defense of unforeseeable employee misconduct, which the employer has the burden of proving. The elements of that defense are that the employer must have work rules that are communicated to the employees (usually proven by documented training and written rules), and the rules must be enforced (proven through documented discipline for safety infractions) … and the employer took all reasonable steps to discover noncompliance.
OSHA does not impose absolute or strict liability on employers for dangerous workplace conditions; instead, it focuses liability where harm can, in fact, be prevented. OSHA has the burden of establishing a prima facie case by showing that: (1) the regulation or standard applied to the cited employer; (2) it was violated; (3) an employee was exposed to the hazard that was created (within the previous 6 months, for the citation to be “serious”); and (4) the employer knowingly disregarded the requirements. Where the agency shows a supervisor had actual or constructive knowledge of a violation, the knowledge is generally imputed to the employer. It is worth noting that courts have held that OSHA can prove constructive knowledge of a violation based on an employer’s inadequate safety program, so having written, thorough, policies in hand can be your first line of defense!
A recent decision may be helpful to employers in defending against situations where a supervisor was involved, using the affirmative defense of idiosyncratic or unforeseeable behavior … at least, depending on where you are located. The U.S. Court of Appeals 11th Circuit (covering Alabama, Georgia, and Florida), in Comtran Group v. U.S. Department of Labor (2013) has joined the majority of the other circuits that have addressed this issue and held that where a supervisor is involved in the violative condition, OSHA may not rely solely on the supervisor’s misconduct alone to prove employer knowledge—which is a necessary criteria for proving serious and willful violations. Rather, the agency must prove that the employer knowingly disregarded the requirements.
In Comtran, where the employer was a communications utility contractor, a supervisor working with one helper was caught digging a 6-foot deep trench without protection from the 5-foot high spoil pile at the edge of the trench. Usually the company’s work involved directional drilling, rather than digging, and generally its trenches are not more than 3 or 4 feet deep. It was doing work on a county contract to relocate existing utilities, tie-in existing ducts to a new duct, and setting a new junction box. A fence had been constructed on the preceding day to restrain the spoil pile, but it was taken down on the day of the inspection, so the supervisor could dig back further to find the utilities. As the trench was expanded and deepened, the spoil came closer to the edge of the hole and grew taller, eventually creating an 11-foot wall of earth that was not sloped, benched, or otherwise properly supported. The supervisor was the only exposed employee in the trench.
On review, the Court of Appeals observed that the supervisor had knowledge of his own violative conduct; however, it held:
the Secretary does not carry her burden and establish a prima facie case with respect to employer knowledge merely by demonstrating that a supervisor engaged in misconduct. A supervisor’s “rogue conduct” cannot be imputed to the employer in that situation. Rather, “employer knowledge must be established, not vicariously through the violator’s knowledge, but by either the employer’s actual knowledge, or by its constructive knowledge based on the fact that the employer could, under the circumstances of the case, foresee the unsafe conduct of the supervisor [that is, with evidence of lax safety standards].” Without such evidence, a supervisor’s misconduct may be viewed as an isolated incident of unforeseeable or idiosyncratic behavior, which is insufficient, by itself, to impose liability under the Act. (citations omitted)
In overturning the Occupational Safety & Health Administration’s initial ruling in favor of OSHA, and remanding the case for the taking of further evidence, the Court of Appeals noted that although this was a question of first impression for the 11th Circuit, the Courts of Appeals for the 3rd, 4th, 5th, and 10th Circuits have also held that OSHA may not meet its burden of proving employer knowledge simply by imputing a supervisor’s involvement in the violative condition.
ISSUE OF MISCONDUCT
The issue of a supervisor’s misconduct and employer knowledge is different, and it is worth stressing this to OSHA if raising the defense during an informal settlement conference. At this point, the overwhelming weight of the case law from the federal court of appeals (only the 6th Circuit, which covers Michigan, Ohio, Kentucky, and Tennessee, has held to the contrary) is that something more than a single supervisor’s misconduct must be shown in order to sustain the government’s burden that the employer knew or should have known of the violation. There must be some other evidence of the employer’s lax safety standards.
When a corporate employer entrusts to a supervisory employee its duty to assure worker compliance with safety standards, it is often reasonable to charge the company with that supervisor’s knowledge, as the “eyes and ears” of the employer. But, as found in the Comtran case, it is different when the misconduct is the supervisor’s own misdeeds. ■
About The Author:
Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a ten-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
Modern Contractor Solutions, January 2014
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