Law Continued from page 33 Biofuels Continued from page 28 scheme fell apart, resulting in a market loss of approximately $60 million. The SEC’s complaint charges Imperial Petroleum and Wilson as well as three former owners of E-Biofuels – brothers Craig and Chad Ducey of Fisher, IN, and Brian Carmichael, who now lives in Bend, OR. The complaint also charges three New Jersey-based companies – Caravan Trading, LLC, Cima Green, LLC, and CIMA Energy Group – and their operators Joseph Furando and Evelyn Pattison (also known as Katirina Tracy) for acting as the middlemen in the scheme. They allegedly provided false and misleading documents to deceive government regulators and attract investors to Imperial. The US Attorney’s Office for the Southern District of Indiana has also filed criminal charges. The investigation is continuing. R Get the Metal out of Protein Mixes and Protect Your Processing Equipment Plate Magnets at work Rare earth plate magnet protecting pre-breaker Self cleaning rare earth plate magnet on hammermill From pre-breakers to presses, hammer mills to bulk load out, Bunting can provide magnets to fit all of your needs. (800) 835-2526 buntingmagnetics.com ©2013 Bunting® Magnetics Co. the employer will need documentation of training. Note that this training requirement is often difficult to establish when employees are illiterate or cannot understand the language, typically English, in which the written and spoken training is being provided. 3. The employer has effectively enforced these safety or health programs and work rules at previous times or jobs with discipline for violations. To establish this element, the employer must be able to produce documentation of verbal or written discipline given to employees for past violations that requires such documents be generated and maintained. 4. The employer must prove that on the date when the violation occurred in the citation, that the violation occurred in such a fashion (e.g., extremely short time frame, totally unforeseeable circumstances) that the employer could not have learned of and prevented the violation, hence the violation is due to “unavoidable” employee misconduct. Because supervisors are expected to follow and enforce an employer’s safety rules, the unavoidable supervisory misconduct defense is often more difficult to establish. Specifically, the employer must present more evidence to show the propriety of its safety programs, that it monitored and audited the supervisor more frequently than the hourly employees, the supervisor has no prior history of engaging in any safety violations or unsafe behavior, and the employer could not have anticipated that the supervisor would have engaged in the unsafe behavior. Because the Eleventh Circuit’s decision rejected OSHA’s argument that an employer is strictly liable whenever a supervisor engages in unsafe behavior, an employer now has a more viable argument that it should not be held liable when a trusted supervisor engages in “unforeseeable or idiosyncratic behavior” or rogue conduct. Since the burden of proof for this affirmative defense will remain on the employer to show that the supervisor’s bad deed was in fact unforeseeable or idiosyncratic, it will be necessary for the employer to conduct audits or other evaluations of supervisor performance to establish compliance in prior situations. R www.rendermagazine.com Render October 2013 35
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