The general standard in OSHA cases is that a foreman’s knowledge of a safety violation by a subordinate is imputed to the employer. An exception has been carved out by some courts when it is the foreman’s own safety violation that gives rise to the OSHA citation, and the employer argues that the actions of a “rogue” employee should not be imputed to the employer. But what happens when both foreman and subordinate engage in an unsafe work condition? That was the situation decided by the U.S. Court of Appeals for the Eleventh Circuit, in Quinlan v. Sec’y, United States DOL, 2016 U.S. App. LEXIS 207 (Jan. 8, 2016), available here.

The foreman for a steel erection sub and another employee were both photographed, by an OSHA inspector, “working on the edge of a 15-foot high concrete block wall without fall protection.” When their employer was cited by OSHA, the employer raised the “rogue employee” argument and said that the foreman’s safety violation should not be imputed to his employer. But the Court of Appeal did not buy that argument. It first described the “classic situation” of imputed knowledge as when the supervisor sees an unsafe work activity by subordinates and allows the activity to continue. Then: “We see little difference between that classic situation in which knowledge is imputed and the instant situation involving supervisor Pacheco and subordinate Vargas. In both cases, the supervisor sees the violation by the subordinate, knows there is a violation, but disregards the safety rule for one reason or another.”

So this was not the same situation where a foreman or supervisor is the only one acting in an unsafe manner without anyone else either noticing, or having input, or being affected. The supervisor saw the subordinate’s unsafe activity - because he was right there! - and his knowledge was thus imputed to his employer, resulting in the OSHA fine being upheld.