A handful of Administrative Law Judge (ALJ) decisions became final orders of the commission last month. Most of these decisions hinged, at least in part, on whether the employer had knowledge of the alleged violations. OSHA cannot sustain a Citation and Notification of Penalty by simply proving a violation of one of its standards occurred. In order for OSHA, “[t]o establish a violation of an OSHA standard, the Secretary must establish that: (1) the standard applies to the facts; (2) the employer failed to comply with the terms of that standard; (3) employees had access to the hazard covered by the standard, and (4) the employer [knew or] could have known of the existence of the hazard with the exercise of reasonable diligence.” Sec’y of Labor v. Paramount Advanced Wireless LLC, 23 OSHC (BNA) 1232 (June 21, 2010).
These recent decisions have examined knowledge by focusing on both knowledge of the employer’s supervisors and the adequacy of the employer’s safety program. “’The knowledge element of the prima facie case can be shown in one of two ways. First, where the Secretary shows that a supervisor had either actual or constructive knowledge of the violation, such knowledge is generally imputed to the employer. In the alternative, the Secretary can show knowledge based upon the employer’s failure to implement an adequate safety program, with the rationale being that – in the absence of such a program – the misconduct was reasonably foreseeable.’” Sec’y of Labor v. Vulcan Indust. Cont. Co., LLC, OSHRC Docket No. 16-0445 (Mar. 7, 2017) (citing ComTran Grp., Inc. v. U.S. Dep’t of Labor, 722 F.3d 1304, 1307-08 (11th Cir. 2013)); see also Sec’y of Labor v. Martin Mech. Contractors, Inc., OSHRC Docket No. 16-0641 (Mar. 14, 2017); Sec’y of Labor v. Capitol Concrete Contractors, Inc., OSHRC Docket No. 15-1823 (Feb. 27, 2017). Whether at issue in the Secretary’s prima facie case or the employer’s affirmative defense of unpreventable employee misconduct, the adequacy of the employer’s safety program is absolutely critical to the ultimate question of whether an employer can be held liable for violations committed by its employees.