Recently, the Eleventh Circuit Court of Appeals joined the Third, Fourth, Fifth, and Tenth Circuits in finding that an employer is not necessarily liable for OSHA violations committed by its supervisors. See Comtran Group, Inc. v. U.S. Dept. of Labor, No. 12-10275 (11th Cir. July 23, 2013). In order to establish that an OSHA regulation has been violated, the Secretary must show four elements: (1) that the regulation applied; (2) that it was violated; (3) that an employee was exposed to the hazard that was created; and at the heart of this case (4) that the employer knowingly disregarded the OSH Act’s requirements.
The general rule has been that the knowledge of a supervisor is imputed to the employer – so if the supervisor knew or should have known of the violation, his knowledge is imputed to the employer and the Secretary can use this fact to show that the employer had knowledge of the violation. But a growing number of Circuit Courts have held that there is an exception to the general rule: when a supervisor knows that he himself has violated an OSHA regulation, his knowledge of his own violation is not imputed to his employer unless it was foreseeable.
The Eleventh Circuit held that where a supervisor acted independently in violating an OSHA regulation, the Secretary must prove something more than the supervisor's own knowledge of his own wrongful conduct to prove the employer knowledge requirement for a violation. Specifically, the Secretary must show that the employer could have foreseen the unsafe conduct of the supervisor with “evidence of lax safety standards.”
To avoid a finding that an employer has “lax safety standards,” the court stated that it should communicate work rules to its employees and consistently enforce them so that the employer would have no reason to expect any of its employees to engage in misconduct. But there are additional steps an employer should take to avoid a finding of “lax safety standards” and decrease the likelihood that it will be held liable for any unanticipated violations by supervisory employees:
- Develop a comprehensive set of safety procedures
- Circulate the procedures to employees and require them to sign an acknowledgement that they have read the procedures and will adhere to them; keep these acknowledgements on file
- Develop a comprehensive training program on safety procedures and test employee comprehension of the procedures; keep employee test results on file
- Repeat training periodically to ensure that employees remember what they have learned and are made aware of any changes
- Enforce any violations of safety procedures with appropriate discipline and do so in a consistent manner; keep paperwork associated with enforcement on file
Although these actions cannot guarantee that an employer will avoid liability for an unexpected OSHA violation committed by a supervisor, they will go a long way in proving that the employer has anything but “lax safety standards,” and create a substantial challenge for the Secretary attempting to establish the required employer knowledge.
It is worth noting that of the six Circuit Courts that have considered this issue, one – the Court of Appeals for the Sixth Circuit – has bucked this trend and imputed to the employer the knowledge of a supervisor who had, himself, committed an OSHA violation. Given this split in authority, this issue may reach the Supreme Court at some point for an ultimate determination of the proper standard.
For more information, please contact Mark Dreux, Head of the Arent Fox OSHA Group, at 202-857-6405.