The issue of whether the Occupational Safety and Health Administration (OSHA) can introduce evidence of a supervisor’s own misconduct to show employer knowledge of an OSHA violation has created a split in the circuit courts. In ComTran Group, Inc. v. U.S. Department of Labor, decided on July 24, 2013, the Eleventh Circuit Court of Appeals ruled that OSHA cannot impute a supervisor’s knowledge of his own misconduct to the employer to establish a critical element of an OSHA case—that the employer knew of the violation. In so holding, the Eleventh Circuit joins the Third, Fourth, Fifth, and Tenth Circuits on this issue.

A Georgia communications utilities company was relocating some county utility lines near Lawrenceville, Georgia in December of 2010. The company sent a two-man crew, consisting of a supervisor and a relatively new helper to do the job. On the second day of the job, the crew ran into a problem: they couldn’t find the utility line. The crew initially dug a four-foot trench, with the spoil pile properly set back from the excavation. But the inability to find the line frustrated the supervisor, who jumped into the trench and on his own began to dig to find the line. In the process, he dug himself into a six-foot hole (triggering OSHA’s sloping and shoring requirements), and the spoil pile crept to the edge of the excavation.

As luck would have it, an OSHA inspector was driving by the location. The inspector spotted a huge spoil pile and a hard hat poking up out of the trench, and reported the situation to his area office. The area office dispatched a compliance officer, who found the supervisor still in the trench, trying to locate the line. The OSHA inspector ordered the supervisor out of the trench and began an inspection. The supervisor realized he had not met OSHA’s requirements and blamed himself for getting lost in his work. No other employees besides the supervisor were exposed. OSHA ultimately cited the company for two OSHA violations, under 29 C.F.R. § 1926.651(j)(2) (excavated material must be kept at least two feet from the edge of an excavation) and § 1926.652(a)(1) (generally requiring sloping, benching, and adequate support systems in excavations greater than five feet in depth).

The company contested the citations, arguing that the company itself did not know of the problem. (The supervisor’s boss had stopped by the project on the second day to check on the crew, but before the supervisor began to literally dig himself into a hole.)

One of the most critical elements OSHA must establish in proving a violation of the Occupational Safety and Health Act (OSH Act) is evidence of employer knowledge of the violation. OSHA argued that since the supervisor himself knew that he was not in compliance, the agency could impute his knowledge to the company under the principle of vicarious liability. The Occupational Safety and Health Review Commission (OSHRC) administrative law judge (ALJ) affirmed the citations, siding with OSHA on the issue. The OSHRC declined the company’s petition for review. The company then appealed the case to the Eleventh Circuit.

On appeal, the issue was one of first impression in the Eleventh Circuit, but the court noted that it did not operate with a blank slate as five other circuit courts had previously addressed the issue. The Third, Fourth, Fifth, and Tenth Circuits all had held that OSHA could not use a supervisor’s own misconduct as evidence of employer knowledge. The Sixth Circuit, on the other hand, held to the contrary.

OSHA urged the court to reject the four other circuit’s holdings, arguing, among other things, that they were “decided a long time ago.” The court rejected OSHA’s argument. “Judicial decisions . . . are not spoilable like milk,” wrote District Judge C. Roger Vinson, sitting by designation for the Eleventh Circuit. “They do not have an expiration date and go bad merely with passage of time.” The Eleventh Circuit decided to join the four circuits, primarily for one reason: fairness. Ordinarily, when an employer entrusts to a supervisory employee its duty to assure compliance with safety standards, it is reasonable to charge the employer with the supervisor’s knowledge—actual or constructive—of the noncomplying conduct of a subordinate. Supervisors, after all, are the company’s eyes and ears in the field.

But a different situation presents itself when the supervisor himself violates the rules. The company becomes “blind and deaf” in those situations, and it would be fundamentally unfair to impute unforeseeable supervisor misconduct to the company. To show employer knowledge in this situation, OSHA must show evidence independent of the supervisor’s own misconduct. For example, if the company had lax safety standards, then perhaps a supervisor’s misconduct may have been foreseeable. But there was no evidence of the company’s safety record in this case. The Eleventh Circuit reversed the ALJ’s decision and remanded the case back to the Review Commission for further proceedings.

The decision provides some relief to employers in the Eleventh Circuit (Georgia, Florida, and Alabama) worried that a supervisor’s own idiosyncratic misconduct will essentially create strict liability for OSHA violations. But employers still need to ensure that their safety programs are effective and enforced. Otherwise, OSHA will show that it was reasonable to anticipate a supervisor mindlessly jumping into an unguarded excavation if the company has a slipshod safety culture.