• Courts Provide Balance to OSHA’s Emphasis on Enforcement
  • August 6, 2013 | Author: Daniel R. Flynn
  • Law Firm: Leech Tishman - Lisle Office
  • It is no secret that OSHA has focused on using a stick instead of a carrot to bring the regulated community into compliance with the hundreds of workplace safety and health standards. Even if your company has been fortunate enough to have avoided OSHA’s flexed enforcement arm, you have likely heard stories from your less-fortunate colleagues.  This is not merely a perception. OSHA has recently touted its enforcement efforts by describing its significant enforcement action against BP as an example of how “enforcement works.” Recent court decisions, however, have cut against this culture of enforcement and have provided employers with strengthened defenses against citations that are not factually or legally sufficient.

    Legal Framework of Contested Citations

    Employers have the right to contest an OSHA citation and have a legal hearing on the case in front of an Administrative Law Judge (“ALJ”) of the Occupational Safety and Health Review Commission (“Review Commission”) or state equivalent. At the hearing, OSHA must put on its case first and prove the citation. If OSHA is able to offer proof of the citation, employers then have the opportunity to put on various defenses (which attack the sufficiency of OSHA’s case) and affirmative defenses (which argue that even if OSHA can prove its case, the employer is not legally liable).

    OSHA’s Initial Burden to Prove Employer Liability

    In order to sustain a citation, OSHA must be able to prove the following elements by a preponderance of factual evidence at the hearing:

    (1)  The regulation applies to the safety or health hazard (e.g., fall, confined space, machine guarding, etc.) which OSHA observed at the worksite;

    (2)  The requirements of the regulation were not met at the worksite (e.g., there was no fall protection, no confined space program, no machine guards in place, etc.);

    (3)  One or more of the employer’s employees were actually exposed to the hazardous condition so that the employee could have been injured by the hazard (NOTE: On multi-employer worksites, an employer may be liable for exposure of another employer’s employee to the hazard if certain conditions are met); and,

    (4)  The employer knew, or with the exercise of reasonable diligence, could have known of the violative conditions.

    OSHA has historically taken the position that if a supervisor either commits the violation or has knowledge of the violation, then the element of employer knowledge is satisfied through the agency relationship between the supervisor and the employer. In essence, OSHA seeks to hold employers strictly liable where the supervisor is the employee that commits a violation.

    OSHA has further stretched this theory of liability to include any “lead” employee in its definition of supervisor. The Review Commission has provided OSHA with some support for this theory in holding that a temporary “lead” employee can be considered a supervisor whose knowledge can be imputed to an employer in instances where an actual supervisory employee delegates supervisory authority to such a “lead” employee in his or her absence. Am. Eng’g & Dev. Corp., 23 BNA OSHC 2093 (No. 10-0359, 2012). Consequently, under the holding of American Engineering, the actions and knowledge of any employee who is given even temporary supervision over his or her coworkers could result in an employer’s liability for violations that occurred on the temporary lead’s watch.

    The Employer’s Burden to Establish a Defense

    Once OSHA presents enough evidence to establish each of the elements required in its  burden of proof (which is called a prima facie case), the employer has the burden of presenting evidence at the hearing that the agency’s evidence on each of the elements (1) - (4) above is not sufficient (e.g., the regulation is inapplicable; the hazard never existed; there was no employee exposure or the employer had no knowledge of the violation). Recent case law has provided employers with legal support for two defenses related to the employer knowledge element: (1) temporary leads with temporary supervisory authority may not fall under the legal definition of “supervisor,” and (2) employers should not be held strictly liable for instances of supervisory misconduct.

    Actions or Knowledge of Temporary Leads May Not Be Appropriately Imputed to  Employers

    As has been recently well-covered, last month the Supreme Court weighed in on what type of supervisory authority is necessary for an employee’s actions or knowledge to be imputed to an employer in determining employer liability under Title VII. The Court confirmed that an employer is precluded from liability when the employee alleged of harassment holds only miniscule managerial authority. In order for an employer to be vicariously liable for the discriminatory acts of an employee, the employee must be empowered by the employer to take tangible employment actions against others. In other words, the employee must have the authority to hire, fire, demote, promote, transfer, discipline, or otherwise take tangible employment actions against other employees in order for his or her actions to be imputed to an employer. Neither the Review Commission nor the federal courts have yet weighed in on whether this decision will affect OSHA’s definition of “supervisor;” however, the legal atmosphere seems ripe for the holding in American Engineering to be challenged.

    Employers May Not Be Strictly Liable for Supervisory Misconduct

    Just last week, the Eleventh Circuit became the most recent circuit to weigh in on this issue, holding that it is not appropriate “to impute a supervisor’s knowledge of his own violative conduct to his employer under the Act, thereby relieving the Secretary of Labor...of her burden to prove the ‘knowledge’ element of her pima facie case.” ComTran Group, Inc. v. U.S. Dep’t of Labor, No. 12-10275 (July 24, 2013). In doing so, the Eleventh Circuit joins the Third, Fourth, Fifth, and Tenth Circuits in recognizing that instances of supervisory employee misconduct are not always foreseeable by the employer, and that holding employers to a strict liability standard for such misconduct runs contrary to the intent of the Act.

    Two Serious citations under OSHA’s Excavation Standard were at issue in ComTran: one alleged that ComTran failed to keep spoil piles at least two feet from the edge of the excavation as required by 29 C.F.R. § 1926.651(j)(2) and the other alleged that ComTran violated OSHA’s general cave-in protection standard at 29 C.F.R. § 1926.652(a)(1). The facts giving rise to the citations echo a somewhat common scenario. On the first day of the job, the excavation was in compliance with all OSHA standards - the spoil piles were more than two feet from the edge of the excavation and the trench was less than five feet deep.  On the second day of the job, the project manager stopped by the worksite and met with the crew, noting that the excavation was still in compliance with all of ComTran’s rules and OSHA’s standards. Once the project manager left, however, the foreman on site began digging to find the utilities conduit. He unexpectedly had to continue digging until the excavation was approximately six feet deep and the spoil pile had grown to five feet high right next to the edge of the trench. The foreman was in the trench at that point without any shoring or other cave-in protection. At that same time, an OSHA compliance officer drove by and noticed the foreman in the trench. After conducting a standard inspection of the worksite, which included photographing and measuring the trench and interviewing the foreman, OSHA issued the two citations.

    The ALJ upheld the citations, holding that since the violating employee was a supervisor, “his knowledge of his own malfeasances was imputable to ComTran.” The ALJ noted that the Fifth and Sixth Circuits had previously split on the issue, but because the issue had not been before the Eleventh Circuit, the Review Commission’s precedent applied. The ALJ went on to analyze the affirmative defense of unpreventable employee misconduct, but concluded that ComTran did not establish any of the necessary elements of the defense.

    On appeal, the Court of Appeals reversed the ALJ’s decision (which had become a final  order of the Review Commission). In doing so, the Court of Appeals borrowed heavily from the decisions of the Third, Fourth, Fifth, and Tenth Circuits that are discussed below in holding that “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 a 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.” Thus, mere evidence of a violative act is not enough to sustain a citation; it is OSHA’s burden to prove that the employer failed to act with reasonable diligence in discovering that act.

    Historically, the Fifth Circuit was one of the first circuits to address this issue in the case of Horne Plumbing & Heating Co. v. Occupational Safety and Health Review Commission, 528 F.2d 564 (5th Cir. 1976). Horne involved an accident that resulted from two workers’ failure to use proper shoring, both of whom were tragically killed when a trench collapsed.  The two workers were both experienced supervisors and journeymen plumbers that knew that their failure to shore the trench properly was a violation of both Horne’s safety policy and OSHA’s standards. The Review Commission found that Horne was strictly liable for the acts of its supervisors.

    On appeal, the Fifth Circuit Court of Appeals rejected the imposition of strict liability, instead finding that OSHA must prove the employer knowledge element by introducing evidence that demonstrates that the accident or violative condition was foreseeable. The Court discussed the fact that Horne maintained an excellent safety program that was well implemented and communicated to all of its employees, which was further evidenced by the fact that Horne had not had a lost-time accident in nearly twenty years prior to the accident at issue. This demonstrated to the Court that Horne did everything within its power to ensure compliance with the law, short of remaining at the job site and directing the operations himself.” As a result, the Court found that the accident was “unforeseeable, implausible, and therefore unpreventable,” and that it was error to impute to Horne the knowledge of the foremen. The Court vacated and set aside all citations.

    The Fourth Circuit was next to weigh in on the topic in the case of Ocean Electric Corp. v. Secretary of Labor, 594 F.2d 396 (4th Cir. 1979). Ocean Electric concerned citations that stemmed from a tragic and fatal accident where an experienced electrical foreman neglected to close the door to a switch gear unit after removing an deenergized bus bar from the unit. Later that day, an apprentice accidentally reached into the open switch gear, touched an energized bus bar, and was electrocuted. The Administrative Law Judge held Ocean Electric strictly liable for the acts of its foreman. The Review Commission acknowledged that an employer could only be held liable for violations of the Act when it had actual or constructive knowledge of the violation, but held that the burden of proving whether an employer acted with reasonable diligence to discover violations of the Act fell on the employer. Consequently, the Review Commission held that Ocean Electric failed to meet this burden and affirmed the citation.

    The Court of Appeals reversed, holding that it is OSHA’s burden of proof to demonstrate that an employer had constructive knowledge of a violation of the Act; that is, that the employer failed to act with reasonable diligence to discover violations of the Act so that the employer should have known of the violation of the Act. The Court continued to hold that, “Ocean may not be found guilty of a serious violation if it did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.” Because nothing in the record demonstrated that Ocean Electric could have foreseen the accident since the foreman and the apprentice both had received proper training and violated the principles of that training, the Court reversed the decision of the Commission.

    The Tenth Circuit came next with Mountain States Telephone & Telegraph Co. v.  Occupational Safety and Health Review Commission, 623 F.2d 155 (10th Cir. 1980). In that case, a two-man crew was dispatched to install a new telephone wire on an existing utility pole shared with the electric company. The crew consisted of a subforeman and an apprentice. While installing the new telephone wire, an untied wire made contact with an energized power line, tragically electrocuting the subforeman who was not wearing proper rubber gloves at the time. Mountain States received a Serious citation under the PPE standard. The ALJ vacated the citation, finding that Mountain  States did not know, nor should they have known, that the subforeman was not wearing protective rubber gloves. The Review Commission, however, reversed and reinstated the citation, holding that, “ordinarily the knowledge and actions of such an employee are to be imputed to the employer, and that [although] the employer could defend by showing that the violation was unpreventable and therefore unforeseeable,” the employer failed to do so.

    The Court of Appeals reversed the Review Commission, holding that “when the noncomplying behavior is the supervisor’s own[,] ... if we impute that knowledge to the employer and declare that now the employer must show the noncomplying conduct was unforeseeable we are shifting the burden of proof to the employer. All the Secretary would have to show is the violation; the employer then would carry the burden of nonpersuasion.”

    The Third Circuit then weighed in with the case of Pennsylvania Power & Light Co. v. Occupational Safety and Health Review Commission, 737 F.2d 350 (3d Cir. 1984). This case resulted from the unfortunate death of a lineman following a failure to comply properly with the OSHA grounding standards. One of the employer’s supervisors was responsible for the failure. OSHA attempted to meet its burden or proving employer knowledge simply by asserting that a supervisor was responsible for the violation. The Review Commission held that such an assertion sufficed to establish employer knowledge, and found the employer strictly liable.

    The Court of Appeals found that while “participation of the company’s own supervisory personnel may be evidence that an employer could have foreseen and prevented a  violation through the exercise of reasonable diligence, . . . it will not, standing alone, end the inquiry into foreseeability.” Instead, in determining foreseeability, “an employer will be excused from responsibility for acts of its supervisory employee upon a showing that the acts were contrary to a consistently enforced company policy, that the supervisors were adequately trained in safety matters, and that reasonable steps were taken to discover safety violations committed by its supervisors.” On the fact of the case, no substantial evidence that the employer failed to exercise reasonable care to prevent the OSHA violations existed. The Court remanded the case to the Review Commission with instructions to vacate the citation and penalty.

    In the not too distant past, the Fifth Circuit revisited the issue in the case W.G. Yates & Sons Construction Co. v. Occupational Safety and Health Review Commission, 459 F.3d 604 (5th Cir. 2006). Yates arose when a Compliance Officer saw one of Yates’ supervisory employees working without proper fall protection. The supervisor testified that he knew he was supposed to tie off at the time, and that his failure to do so constituted violations of both Yates’ safety rules and OSHA’s fall protection standard. The ALJ found that OSHA proved the element of employer knowledge by attributing the supervisor’s knowledge to the employer without any inquiry into whether the misconduct was foreseeable.

    As it had decades before, the Court of Appeals rejected such a theory of strict liability as contrary to the intent of the Act. Instead, the Court held that, “a supervisor’s knowledge of his own malfeasance is not imputable to the employer where the employer’s safety policy, training, and discipline are sufficient to make the supervisor’s conduct in violation of the policy unforeseeable.” The Court vacated the citations and remanded the case to the Review Commission.

    These decisions provide employers with a significant legal discussion of what OSHA must prove in order to establish a citation. Whether OSHA can meet such a burden should be carefully considered before accepting any citations.

    Affirmative Defense of Unpreventable Employee Misconduct

    Although the federal courts have recently issued two decisions that help define when an employee’s actions or knowledge can be imputed to an employer, the Review Commission has yet to adopt the decisions of the Supreme Court or the Third, Fourth, Fifth, Tenth, and Eleventh Circuits. These decisions provide employers with persuasive legal arguments, but employers must still be prepared to raise certain affirmative defenses to defend against citations. An affirmative defense is a defense that the employer must establish and prove, and if the employer successfully proves the defense, the citation will be vacated. There are a number of such defenses, but the most potent affirmative defense available to the employer is that of “unpreventable employee misconduct” or “isolated event.”

    In order to establish the defense of “unpreventable employee misconduct,” the employer must prove the following:

    (1)  That it had a thorough safety program;

    (2)  That it adequately communicated its safety program to its employees;

    (3)  That it adequately enforced its safety program; and,

    (4)  That the violative conduct of the employee was a departure from a uniformly and effectively communicated and enforced safety rule (that is, the employer had no reasonable opportunity to become aware of the violation and to correct the violation.)

    Secretary of Labor v. Paramount Advanced Wireless, LLC, OSHRC Docket No. 09-0178 (Decision and Order of ALJ Covette Rooney, June 21, 2010) (citations omitted).

    OSHA will rarely acknowledge this affirmative defense if there is any lapse in communication, training, or enforcement of an adequate safety program. It is, therefore, imperative for employers to be in a position to demonstrate consistent communication, training, and enforcement of an adequate safety program to preserve this defense.


    Realistically, at some point employers will be faced with instances in which employees and supervisors will have violated the employer’s safety rules and the OSHA standards. If, however, the employer has established competent and effective training and enforcement of an adequate safety program (for both supervisor and non-supervisors), the employer can avoid liability for OSHA violations by refuting the employer knowledge element or by utilizing the unavoidable employee misconduct defense.