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The 11th U.S. Circuit Court of Appeals recently addressed the vexing question of when an employer can be sanctioned for knowingly violating a federal safety standard when one of its supervisors commits safety violations.
ComTran Grp. Inc. v. DOL, 11th Cir., No. 12-10275, the 11th Circuit rejected the long-standing position of the Occupational Safety and Health Review Commission (OSHRC) that an employer can be held liable for safety violations that an employee in a supervisory position committed. The court reversed an OSHRC decision against a utility contractor for alleged trench violations, ruling that it isn’t “appropriate to impute a supervisor’s knowledge of his own violative conduct to his employer.”
“In a twist on the well-established rule that knowledge may be imputed to the employer when one or more of its supervisors has knowledge of an employee’s violative conduct, the court explained that such reasoning should not be extended when the misconduct, unforeseeable to the employer, is carried out by a supervisor, as was the case in
ComTran,” explained Howard Sokol, a partner in the labor and employment litigation division of Holland & Knight’s New York City office. In such cases, the Occupational Safety and Health Administration (OSHA) must demonstrate the presence of additional facts to show that the employer had—or should have had—knowledge of the supervisor’s misconduct, he said.
The 11th Circuit joins the 3rd, 4th, 5th and 10th circuits on this issue.
The Facts of the Case
In 2010, Gwinnett County, Ga., hired communications utilities company ComTran to relocate utilities that ran along a road in Lawrenceville, Ga. Walter Cobb, the project’s foreman, began to dig a trench in search of a utilities conduit. He dug so extensively that he eventually had a 5-foot-high pile of dirt at the edge of a 6-foot hole—an 11-foot-high wall of dirt that was not properly supported.
Just then, an OSHA inspector drove by, saw the unsafe worksite and called the OSHA regional office. OSHA charged ComTran with two serious violations and assessed penalties totaling $9,800 for Cobb’s failure to avoid a potential cave-in hazard. The company contested the violations before the review commission.
The OSHRC found that OSHA proved the first three elements of the four-part test needed to show that ComTran was liable: The regulations applied to the situation, the employer failed to comply with them, and an employee was exposed to a hazard. The fourth requirement—that the employer knew or should have known about the violation—became the deciding factor in determining ComTran’s liability.
Relying on commission precedent, the OSHRC held that, because Cobb was a supervisor, his knowledge of his own malfeasances was imputable to the employer.
“One of the most critical elements OSHA must establish in proving a violation of the Occupational Safety and Health Act is evidence of employer knowledge of the violation,” said John Martin, a shareholder at employment law firm Ogletree Deakins. “OSHA argued that since the supervisor himself knew that he was not in compliance, the agency could impute his knowledge to the company under the principle of vicarious liability.” After the OSHRC sided with OSHA on the issue, ComTran appealed the case to the 11th Circuit.
The appeals court agreed that Cobb had knowledge of his violative conduct, but “Cobb’s knowledge of his own violative conduct does not resolve this case,” the court said.
The court found that other circuits have held that an employer is not necessarily liable for the actions of a supervisor. The cited decisions noted that a supervisor must be held to represent his or her employer in liability cases, but additional evidence is needed in cases where the supervisor is the sole person violating safety standards.
“A supervisor’s ‘rogue conduct’ cannot be imputed to the employer in that situation,” the court explained. 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,” such as evidence of lax safety standards.
ComTran decision is positive for employers, said Sokol, particularly for those companies that enforce OSHA’s safety and health standards as well as their own policies and procedures. “It will be more difficult for OSHA to hold liable well-run and law-abiding employers for violations of the health and safety actions of their rogue or otherwise noncompliant supervisors,” he said.
“The decision provides some relief to employers in Georgia, Florida and Alabama worried that a supervisor’s own idiosyncratic misconduct will essentially create strict liability for OSHA violations,” Martin said. “But employers still need to ensure that their safety programs are effective and enforced. Otherwise, OSHA will show that it was reasonable to anticipate a supervisor mindlessly jumping into an unguarded excavation if the company has a slipshod safety culture.”
Roy Maurer is an online editor/manager for SHRM.
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