Yesterday the Fifth Circuit Court of Appeals issued a ruling in a case in which an employer, Angel Brothers, sought review of a decision from the Occupational Safety & Health Review Commission affirming a Citation against it. You can find the decision here if you care to read it. https://www.ca5.uscourts.gov/opinions/pub/20/20-60849-CV0.pdf
This case is interesting because in it the Fifth Circuit clearly spells out the proper analysis for two frequently seen issues:
- How does the OSHRC determine whether an employer had knowledge of a specific condition that violated a rule, and
- What must an employer do to prove that it effectively enforced its rules as part of the unavoidable employee misconduct defense?
In order to establish an OSHA violation, OSHA must show that the employer had actual or constructive knowledge of the conditions through the exercise of reasonable due diligence. If the employer did not know, or should not have known, of the condition that violated the rule, it cannot be liable.
In this case, Engel Brothers were cited when an OSHA inspector vising the work site saw an employee working in a trench without an adequate protective system. The supervisor on-site admitted that he allowed a single worker to work in the trench without adequate protection-no trench box or benching. However, Angel argued that it had no knowledge of the violation even though its supervisor allowed or instructed the employee to work in the trench. (This was also part of Angel’s unavoidable employee misconduct defense.)
The Court of Appeals explained that the “knowledge” element can arise in two different situations: when the supervisor is merely aware of the violation and where the supervisor himself engages in the activity that is the violation.
The court explained that when the supervisor is merely aware of the violation, as in the case with Angel (Supervisor was aware of the violation, the actions of the employee in the trench were the violation.), the supervisor’s knowledge of the situation that violates a rule will be imputed to the employer.
However, the court went on to explain that if a supervisor’s own conduct is the violation, his knowledge may not be imputed to the employer unless his conduct was foreseeable to the employer.
In this case, the Fifth Circuit found that although the supervisor allowed or even instructed the employee to work unprotected in the trench, it was the employee working in the trench that constituted the violation, not the supervisor allowing him to do so. As such, the Court held that the supervisor’s knowledge of the violation was properly imputed to Angel.
Had the supervisor been the one working in the trench, his knowledge of his own violation would not have been imputed to Angel unless his conduct was foreseeable to Angel. As a practical matter, if a supervisor is engaging in conduct that violates a rule, OSHA is almost certainly going to argue that his doing so should have been foreseeable to the employer.
Unavoidable Employee Misconduct Defense
Angel argued that it should not be liable because the violation occurred due to unpreventable employee misconduct. The prima facie elements of this defense are that the employer: 1) has established work rules designed to prevent the violation, 2) has adequately communicated these rules to its employees, 3) has taken steps to discover violations, and 4) has effectively enforced the rules when violations have been discovered.
The Court held that Angel failed to show that it effectively enforced its rules because, in part, it did not discipline the employee that was caught working unprotected in the trench. This failure to discipline undermined Angel’s claim that it enforced its safety rules.
In addition, the Court noted that although Angel performs more than one thousand excavations annually, it had only disciplined employees twice for violating trenching rules, and each of those instances only arose after OSHA inspectors discovered the violations. Common sense dictates that a company that does that much trenching is going to catch its employees violating its trenching rules far more than two times if it is trying to enforce those rules, and that is what this defense requires. If you cannot prove that you actively seek out violations and enforce your safety rules, you will not successfully assert this defense.
First, your supervisor’s knowledge of a rule violation will almost always be imputed to you. Constant training and education about the applicable rules and how the failure to comply with them will impact both the supervisor and the company are critical. Even experienced supervisors make mistakes and take misguided shortcuts.
Second, having a great set of safety rules is not enough-you must actively enforce them. If you have enough man-hours or perform enough activities, you are statistically certain to have violations. The failure to catch and discipline employees will be used by OSHA to prove that you do not effectively enforce your own rules. Considering the much more employee-friendly make-up of OSHA since President Biden’s election, this will be more true now than ever.
Don’t hesitate to call me directly if you have any questions about this opinion.