An employer may not be held liable for a violation of the Occupational Safety and Health Act (“OSHA”) based solely on a supervisor’s knowledge of his own misconduct, the U.S. Court of Appeal for the Eleventh Circuit in Atlanta has ruled in a case of first impression for the circuit. ComTran Group v. U.S. Dep’t of Labor, No. 12-10275 (11th Cir. Jul. 24, 2013). Reversing the Occupational Safety and Health Review Commission’s decision that the employer violated OSHA, the Court concluded the Commission erroneously had relieved the Secretary of Labor of her burden to prove the employer’s knowledge of the violation by holding that the supervisor’s knowledge of his own misconduct could be imputed to the employer.
The Court joins the Third, Fourth, Fifth and Tenth Circuits in so ruling.
ComTran Group is a communications utilities company. ComTran assigned Walter Cobb, a supervisor, and another worker to a job involving the relocation of underground utilities. Cobb dug a trench approximately four feet deep, placed the “spoil pile” for the excavation at least two feet away from the trench’s edge, and erected a silt fence between the pile and the excavation, as required by OSHA.
The following day, Cobb, unable to locate the utilities conduit in the trench, removed the silt fence to continue to dig. He widened the trench and deepened it to six feet. The spoil pile came close to the trench’s edge. It grew to five feet in height, creating an unsupported 11-foot high wall of earth above Cobb, working in the trench. An OSHA compliance officer, seeing the spoil pile and Cobb working in the trench, requested an inspection of the site.
As a result of the inspection, the Secretary cited ComTran for OSHA violations for failing to avoid a potential cave-in hazard and proposed $9,800 in penalties.
An Occupational Safety and Health Review Commission administrative law judge affirmed the citations, finding that the Secretary had established a prima facie case because Cobb’s knowledge of his own malfeasances was imputable to ComTran. However, the ALJ reduced the penalty (from $9,800.00 to $5,000.00) because ComTran showed “good faith” by taking “decisive steps” to strengthen its safety program after the violations were discovered. The Commission denied discretionary review. ComTran appealed to the federal Circuit Court in Atlanta.
To establish an OSHA violation, the Secretary must show that:
- the regulation applied,
- it was violated,
- an employee was exposed to the hazard that was created, and
- the employer “knowingly disregarded” OSHA’s requirements.
Reich v. Trinity Indus., Inc., 16 F.3d 1149, 1151 (11th Cir. 1994). The Secretary can prove employer knowledge by showing that a supervisor had either actual or constructive knowledge of the violation. When a supervisor has actual or constructive knowledge of a subordinate’s violation, liability generally is imposed on the employer.
When the wrongdoer is the supervisor, however, several circuit courts have held that liability may be imposed on the employer only when the supervisor’s actions are reasonably foreseeable. W.G. Yates & Sons Constr. Co., Inc. v. Occupational Safety & Health Review Comm’n, 459 F.3d 604, 608 (5th Cir. 2006); Pennsylvania Power & Light Co. v. Occupational Safety & Health Review Comm’n, 737 F.2d 350 (3d Cir. 1984); Mountain States Telephone & Telegraph Co. v. Occupational Safety & Health Review Comm’n, 623 F.2d 155 (10th Cir. 1980); Ocean Electric Corp. v. Secretary of Labor, 594 F.2d 396, 401 (4th Cir. 1979). If the conduct is an isolated incident of unforeseeable or idiosyncratic behavior, the employer will not be held liable. Ocean Electric Corp., 594 F.2d at 401. But see Danis-Shook Joint Venture XXV v. Secretary of Labor, 319 F.3d 805, 805 (6th Cir. 2003) (imputing supervisor’s misconduct to the employer).
Supervisor’s Misconduct not Imputed
The Secretary argued to the Eleventh Circuit that ComTran should be held liable for Cobb’s misconduct because Cobb knew that his conduct was wrong. While the Court agreed that Cobb knew or should have known of his own misconduct, Cobb’s knowledge did not resolve the case. After reviewing the case law from other circuits, the Court concluded the Secretary could not establish a prima facie case “merely by demonstrating that a supervisor engaged in misconduct” and imputing the violator’s knowledge to the employer. Rather, it said, the Secretary must prove that “the employer could, under the circumstances of the case, foresee the unsafe conduct of the supervisor,” for example, with a showing of lax safety standards. However, without such evidence, the Court held, a supervisor’s misconduct may be viewed as an “isolated incident of unforeseeable or idiosyncratic behavior,” which is “insufficient, by itself, to impose liability under OSHA.” Accordingly, the Court reversed the Commission’s decision and remanded the case for further proceedings.
This case is a positive development for employers in the Eleventh Circuit (covering Alabama, Florida and Georgia). Other circuit courts to have addressed this issue have made similar rulings. The Sixth Circuit (covering Kentucky, Michigan, Ohio and Tennessee), however, has ruled to the contrary. It remains to be seen whether the U.S. Supreme Court will resolve this split in the circuit courts. Employers should regularly train their supervisors and employees on their safety programs and maintain a clear mechanism for reporting and correcting potential violations.