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October 07, 2013
Is my OSHA case hopeless when a supervisor violated the standards?

By Howard Mavity, partner, Fisher & Phillips, LLP

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Many employers accept OSHA citations even when OSHA cannot meet its burden to prove that: (1) a standard applied, (2) a hazard was present, (3) employees were exposed, and (4) the employer knew of the hazard or should have known with the exercise of reasonable diligence. Employers’ attitudes are understandable because they may realize that they could have done better in their safety efforts. Moreover, OSHA often acts at the inspection stage as if the employer is guilty and that the burden is on the employer to prove otherwise.

When it is a supervisor who violated OSHA standards, employers assume that their agents’ bad acts have doomed their defense. And, in fact, OSHA generally does view the employer’s safety processes as terminally flawed when a supervisor violates a standard.

In cases like this, the employer and counsel have their job cut out for them, but all is not lost. If the employer has maintained effective site safety processes, that hard work may reward the employer. While OSHA may not accept your defense at the informal conference stage, their counsel or a judge may be more receptive.

The necessary defense mindset

Let’s assume that you have determined that OSHA can prove an applicable standard, hazard, and exposure. And note that I use the word “prove.” Once a case enters the legal phase, the outcome comes down to what can actually be proven. You have to adjust your mindset to challenge OSHA. Like most safety professionals, I consider defenses only after I have evaluated whether a violation or hazard was present. Self-critical analysis, correction, and improvement should always be our first step. However, an employee safety-driven approach does not conflict with making OSHA prove their case. An employer can (and should) strive to improve its safety systems, particularly after an OSHA citation, but the same employer should also actively evaluate OSHA’s ability to make its case and develop a strong defense against citations where that case may be weak.

Many employers assume that OSHA can meet their burdens of proof and therefore focus on offering the affirmative defense of “unpreventable employee misconduct” (or “isolated instance” in some state OSHA plans). However, judges hold employers to a higher burden to prove affirmative defenses, and they do not like the “unpreventable employee misconduct” defense. Instead, try to focus your defense on questioning OSHA’s ability to prove its case, where the burden of proof is on the agency.

Can OSHA show that the employer knew of the violation?

The defense often focuses on whether OSHA can prove that the employer knew—or should have known—about the violation with the exercise of due diligence. Every supervisory employee is deemed an agent of the employer, and his/her knowledge is imputed to the organization.

If the supervisor committed an unsafe act or violated a standard, OSHA will claim that the organization gained knowledge of the violation through the supervisor’s own bad act.

However, five U.S. judicial circuits have concluded that the employer is not automatically liable for OSHA violations committed by its supervisors. To simplify these courts’ rationale, they hold that a supervisor’s knowledge of his or her own bad act is not imputed to the employer unless the supervisor’s conduct was foreseeable.

Supervisory misconduct is deemed foreseeable when the employer’s safety processes were not adequate. At this point in the analysis, the employer’s safety efforts are analyzed in much the same way as in the unpreventable employer misconduct defense. The key here is to show due diligence, as I mentioned earlier when I explained that OSHA must show that the employer knew of the violation or “should have known of it with the exercise of due diligence.”

Judges will quite rightly more closely scrutinize an employer’s safety processes when supervisory misconduct is involved. In an analysis of the unpreventable employee misconduct defense, the higher the level of the supervisor, the more that is expected of the safety processes. Supervisor misconduct should, in fact, prompt us to carefully examine the entire culture of the site, plant, and company. Supervisory lapses in safety often lead to similar professional lapses in the employer’s business.

However, there are a few caveats. As is often the case, the 6th Circuit, which includes Tennessee, Ohio, Kentucky, and Michigan, has gone its own way and disagrees with the already listed circuits. Some circuits and state plans have not dealt with the issue. Finally, because this argument is a legal theory, don’t be surprised if OSHA takes this defense less seriously when an attorney isn’t present.

A partner in the Atlanta office, Howard Mavity co-chairs the Fisher & Phillips Workplace Safety and Catastrophe Management Practice Group. He draws on his past business experience in transportation, logistics, construction, and industrial supply to work with clients and focuses on eliminating employee problems through commonsense management. He oversees audits of corporate labor, human resources, and safety compliance, responds to virtually every type of day-to-day workplace inquiry, and has handled cases before the Equal Employment Opportunity Commission (EEOC), Office of Federal Contract Compliance Programs (OFCCP), National Labor Relations Board (NLRB), and numerous other state and federal agencies.

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