Last week, the Eleventh Circuit Court of Appeals affirmed an Occupational Safety and Health Review Commission holding that an employer was liable for an incident involving a supervisor working beside an employee who was seen not using fall protection. InQuinlan Enterprises v. DOL the question before the court was whether it was appropriate to impute a supervisor’s knowledge of an employee’s misconduct onto the employer under OSHA when the supervisor was simultaneously participating in the misconduct.

This was a novel question before the court in light of the 2013 Eleventh Circuit decision in Comtran Group v. DOL, which held that when the supervisor is the one committing the violation, the Department of Labor is charged with producing additional evidence of knowledge of the part of the employer to prove liability. There the court held that the burden of proof should lie with the Department of Labor to prove that the employer was aware of the violation, as opposed to automatically attributing a supervisor’s improper conduct onto the employer, which would improperly require the employer to show that it was unaware of the violation—thus shifting the burden from the DOL to the employer.

In Quinlan, however, the court did not require the DOL to show facts to support the employer’s knowledge of the violation and found that the facts were strikingly different; in Quinlan it was the “classic situation” of employer liability because the supervisor saw the employee failing to obey safety rules and did nothing to remedy the violation. This situation was contrary to the facts inComTran in which the supervisor/foreman decided to dig a trench without using any type of cave-in protection. Here, the supervisor saw a subordinate performing the work without fall protection, did nothing to remedy the violation, and instead, joined in the conduct. Since in ComTran the supervisor/foreman ultimately made the decision to conduct work that violated OSHA standards, the DOL maintained the burden of showing knowledge on the part of the employer, as opposed to this situation, wherein the supervisor watched a subordinate commit the violation and then assisted in the conduct without using proper fall protection.

Reading Quinlan and Comtran together, it would appear to be a question of whether the employer is dealing with a “classic situation” in determining who bears the burden of showing employer’s knowledge-or lack thereof. The breadth of “classic situation” remains unclear, however the court describes it as a time “when the supervisor is on the scene looking on, sees the subordinate violating a safety rule, knows there is such a violation, but nonetheless allows it to continue.”