Labor and the Law By Mark A. Lies II and Kerry M. Mohan Rogue Supervisor Editor’s note – Mark A. Lies II is a labor and employment law attorney and partner with the Chicago, IL, law firm of Seyfarth Shaw, LLP. He specializes in occupational safety and health and related employment law and civil litigation. Kerry M. Mohan is an associate with Seyfarth Shaw focusing on occupational safety and health, traditional labor matters, and related employment law and civil litigation. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information. It is well recognized that employer knowledge is required for the Occupational Safety and Health Administration (OSHA) to establish a violation. Under most circumstances, this element can be satisfied when a supervisor, manager, or foreman, who are agents of the employer, witnesses an employee exposed to a hazard but does nothing about it. Yet, what happens when the supervisor, manager, or foreman is the individual violating OSHA’s regulations (and the company’s rules)? In the past, OSHA has tried to use the supervisor’s bad act to impute strict liability on the employer, arguing that the supervisor’s own knowledge of his bad act is sufficient to impute or infer knowledge of that bad deed onto the employer. This article addresses a recent federal court of appeals’ decision rejecting OSHA’s interpretation, and how that decision may affect OSHA’s ability to prove a violation in the first place or for the employer to prove unavoidable supervisor misconduct affirmative defense. OSHA Burden to Prove Employer Liability In order to prove a violation of an OSHA safety or health regulation (or the General Duty Clause, Section 5(a)(1)), the agency must show by a preponderance of factual evidence at the hearing the following elements: 1. The regulation or a generally recognized industry safety practice or the employer’s own safety policy applies to the safety or health hazard (e.g., fall, confined space, machine guarding, etc.), which OSHA observed at the worksite. 2. The requirements of the regulation, industry practice, or employer policy Providing screening solutions to the rendering industry for over 30 years. Applications • general rendering plant effluent • poultry, beef, pork, fish by-products • raw blood screening • grease screening • pet food processing and clean-up • hide processing • receiving bin effluent screening Features • sturdy stainless steel construction • corrosion resistant materials • custom flights • low water usage • low overall operating & maintenance costs www.ipec.ca • sales@ipec.ca • 1.800.663.8409 • 2889 Norland Ave, Burnaby, B.C. were not met at the worksite (e.g., no fall protection, confined space program, or machine guards in place, etc.). 3. One or more of the employer’s employees were actually exposed to the hazardous condition so that the employee could have been injured by the hazard (note, though, that on multi-employer worksites, an employer may be liable for exposure of another employer’s employee to the hazard if certain conditions are met). 4. The employer knew or, with the exercise of reasonable diligence, should have known of the violative conditions. Thus, “employer knowledge” is a critical element. Employers are not strictly liable under the Occupational Safety and Health Act or a particular OSHA standard simply because a violative condition exists or an accident has occurred. Since many employers are legal entities, such as corporations, and not individuals, it may be difficult to determine what a corporation “knows.” Therefore, the case law involving OSHA citations has established a general rule that the actual or constructive knowledge of an employer’s agent, such as a foreman or supervisor, can be imputed to the employer. In other words, if OSHA can prove that a supervisor or foreman knew or, with the exercise of reasonable diligence, should have known that a violative condition exists, OSHA may be able to satisfy the employer knowledge element of its burden of proof in a contested case. Establishing Employer Knowledge by a Supervisor’s Own Bad Deeds To satisfy its burden of establishing employer knowledge, OSHA has often tried to use a supervisor’s own bad deeds to impute direct knowledge to the employer. In essence, OSHA’s view is that because the supervisor engaged in the dangerous act, his knowledge of that dangerous act is sufficient to establish employer knowledge. In a recent OSHA Review Commission decision (ComTran Group, Inc., 2011), a 32 October 2013 Render www.rendermagazine.com
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