defense that applies to hourly employees, the employer must prove the following: 1. The employer had a safety or health program and work rules that applied to the OSHA regulation contained in the citation (e.g., if OSHA has cited the employer for violations of the fall protection regulations, the employer had a specific program and work rules relating to fall hazards). 2. The employees were effectively trained in such safety or health program and work rules. To prove this element, Continued on page 35 supervisor was caught digging in a sixfoot deep trench with an unprotected five-foot high “spoil pile” at the edge of the trench. The administrative law judge found that because the supervisor “had dug the excavation and placed the spoil pile at the edge,” his knowledge of his own malfeasance was imputed to the employer. As a result, the administrative law judge found that the Secretary of Labor had established its prima facie violation and affirmed the citation. Attempt to Impose Strict Liability Based on Supervisor Malfeasance Rejected Following the OSHA Review Commission’s decision in ComTran, the employer appealed to the United States Court of Appeals, Eleventh Circuit (ComTran Group, Inc. v. DOL, 2013). On appeal, the Eleventh Circuit addressed the issue of whether it is appropriate to impute a supervisor’s knowledge of his own violative conduct to his employer under the act, thereby relieving the Secretary of Labor the burden to prove the employer knowledge element of his prima facie case. The Eleventh Circuit found against OSHA, holding that if this approach were to apply, the secretary would only have to meet three of the four evidentiary elements of the prima facie case, and would not have to prove the employer knowledge element. Analyzing prior federal appellate court decisions, the Eleventh Circuit stated that, “We say that a supervisor’s knowledge is ‘generally imputed to the employer’ because that is the outcome in the ordinary case. The ‘ordinary case,’ however, is where the supervisor knew or should have known that subordinate employees were engaged in misconduct, and not, as here, where the supervisor is the actual malfeasant who acts contrary to the law.” Further, seeming to support the unavoidable supervisory misconduct defense, the Eleventh Circuit found that “if a violation by an employee is reasonably foreseeable, the company may be held responsible. But, if the employee’s act is an isolated incident of unforeseeable or idiosyncratic behavior, then common sense and the purpose behind the act require that a citation be set aside.” Finally, the court stated that a supervisor’s “rogue conduct” cannot be imputed to the employer merely because the supervisor is the violator. As a result, the Eleventh Circuit remanded the matter back to the Review Commission to require the Secretary of Labor to prove the employer knowledge element and permit the employer to establish its defenses to the citation. The Circuit’s Decision and Unavoidable Supervisory Misconduct Defense The Eleventh Circuit’s decision has seemingly breathed new life into the often difficult to prove “unavoidable supervisor misconduct” employer affirmative defense. Under the typical “unavoidable employee misconduct” www.rendermagazine.com Render October 2013 33
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