In a bold move by the U.S. Court of Appeals for the Eleventh Circuit (which covers Georgia, Florida and Alabama), the Court has overruled the long-standing precedent of the Occupational Safety and Health Review Commission (“Commission”) that when a supervisor engages in safety-related misconduct, his or her “rogue conduct” is imputed to the employer.
To prove a violation of the Occupational Health and Safety Act (“OSHA”), the Secretary of Labor has to establish four elements, one of which is that the employer had knowledge of the violation. To establish this particular element, the Secretary typically relies on the actual or constructive knowledge of an employer’s supervisors because such knowledge is generally imputed to the employer. This means that the Secretary does not have to produce additional evidence of specific knowledge of the events by key employer officials to establish the employer had “knowledge.” Moreover, the Commission considers a supervisor’s misconduct strong evidence that the employer’s safety program itself is lax, thereby heightening the employer’s burden of establishing an affirmative defense that the supervisor’s actions are just a case of isolated employee misconduct.
The Court’s decision in Comtran Group, Inc. v. U.S. Dep’t of Labor, No. 12-10275, 2013 U.S. App. LEXIS 15023 at *32-33 (11th Cir. July 24, 2013) appears to have changed all of that. In the case, OSHA cited the employer because it observed the supervisor “digging in a six-feet deep trench with an unprotected five-feet high ‘spoil pile’ at the edge of the excavation.” What the supervisor was doing was unquestionably unsafe and violated OSHA regulations. But the employer challenged the citation based on its lack of knowledge of the supervisor’s improper actions. When an administrative law judge heard the case, he simply followed Commission precedent and imputed knowledge of the supervisor’s actions on to the employer. In other words, because the supervisor had acted in an unsafe manner, the employer was completely responsible for the violation.
The employer appealed that determination, and the Eleventh Circuit considered the following question:
Is it 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 prima facie case?
The Eleventh Circuit answered that question with a clear “No.” It recognized that if Commission precedent were followed, the mere fact of the violation itself would satisfy the Secretary’s burden to establish the employer’s knowledge of the violation. The Court therefore held that “if the Secretary seeks to establish that an employer had knowledge of misconduct by a supervisor, she must do more than merely point to the misconduct itself. To meet her prima facie burden, she must put forth evidence independent of the misconduct.”
In this ruling, the Court joined five other circuits in finding that a safety violation by a supervisor alone is not sufficient proof that the employer knew or should have known of the misconduct for purposes of an OSHA citation. This Comtran Group decision signifies a critical shift in how employers should view and litigate their OSHA citations in the Eleventh Circuit when the issues involve supervisor’s actions or there is a question about a company’s knowledge of the violation. Instead of assuming that supervisor involvement in misconduct means that it should just accept liability for OSHA violations and pay whatever fine OSHA has assessed, employers should consider whether to dispute the citation and challenge it using the rationale in Comtran Group.
Click here for the complete Comtran Group decision.