Employer Knows of OSHA Violations From Supervisor's Participation in Misconduct: Eleventh Circuit

Practical Law Legal Update w-001-3399 (Approx. 5 pages)

Employer Knows of OSHA Violations From Supervisor's Participation in Misconduct: Eleventh Circuit

by Practical Law Labor & Employment

Background

Quinlan, a steel subcontracting company, was working on a construction project at a job site. During an inspection of the job site, an OSHA inspector observed two of Quinlan's employees, foreman Miguel Pacheco and subordinate Humberto Vargas, working at the edge of a 15-foot high wall without fall protection and without a secured ladder. Following the inspection, the DOL Secretary issued Quinlan a Citation and Notification of Penalty for serious violations of OSHA regulations. An administrative law judge (ALJ) affirmed the Citation and assessed penalties. On remand following the Eleventh Circuit's decision in a separate case, ComTran Group, Inc. v. United States Department of Labor, that had potential bearing on this case, the ALJ did not change her decision. The OSHA Commission issued a final order regarding Quinlan's OSHA violations and the applicable penalties. Quinlan filed a petition for review of the OSHA Commission's Order.

Outcome

The Eleventh Circuit denied Quinlan's petition and affirmed the OSHA Commission's Order, holding that:

The DOL Secretary carries her burden of imputing knowledge to an employer of a subordinate employee's OSHA violation when a supervisor working for the employer:
- violates an OSHA safety rule simultaneously with the subordinate employee;
- knows the conduct is a violation; and
- disregards the safety rule nevertheless.
A situation in which a supervisor violates an OSHA safety rule simultaneously with a subordinate employee is a basis for imputing knowledge of the OSHA violation to an employer just like one in which a supervisor observes a subordinate's violation and disregards it.
When a supervisor violates an OSHA safety rule by himself, the Secretary must show the employer knew of or could have foreseen the supervisor's unsafe conduct.

The Eleventh Circuit noted that:

The DOL Secretary establishes a prima facie case where an applicable OSHA regulation was violated by further showing that:
- an employee was exposed to a hazard; and
- the employer "knowingly disregarded" OSHA's requirements.

(ComTran Group, Inc. v. United States Department of Labor, 722 F.3d 1304 (11th Cir. 2013).)

Imputing knowledge to an employer vicariously based on a supervisor's knowledge of a violation requires showing that the supervisor either had:
- actual knowledge such as from directly observing a subordinate employee's violation; or
- constructive knowledge such as through being in close enough proximity to the violation that the supervisor should have known about it.

(ComTran Group, Inc., 722 F.3d at 1307-08.)

The Eleventh Circuit in ComTran reversed the OSHA Commission and carved out an exception to the general rule that the knowledge of a supervisor is imputed to the employer, holding that:
- when a supervisor himself is the only one engaged in the OSHA violation, the DOL Secretary does not carry her burden to show that the employer had knowledge of the OSHA violation merely by pointing to the supervisor’s violation; and
- the employer's knowledge of the OSHA violation in that circumstance must be established by showing that the employer itself had actual or constructive knowledge and could have foreseen the supervisor's unsafe conduct.

(ComTran Group, Inc., 722 F.3d at 1307-08.)

The Eleventh Circuit rejected Quinlan's argument that the exception in ComTran should apply in this case where the supervisor took part in the violation along with a subordinate, finding that:

The typical situation in which a supervisor is present and observes a subordinate violate a safety rule is similar to the situation in this case in which foreman Pacheco was present and observed subordinate employee Vargas violating the safety rule and then joined Vargas in the violation to speed up the job.
The ComTran exception is different because it rests on the notion that permitting the Secretary to carry her burden of proof solely by establishing a supervisor's violation of a safety rule (when the employer did not know and could not know of the supervisor's violation) means that the Secretary does not really have to show knowledge at all. The situation in this case with Pacheco and Vargas does not involve the same problem since the Secretary still carries her burden of proving the employer had actual or constructive knowledge of the subordinate employee's violation.
The Fourth Circuit case, L.R. Willson & Sons, Inc. v. OSHRC, relied on by Quinlan involving a supervisor and a subordinate engaged in a similar OSHA violation as Quinlan's foreman Pacheco and subordinate employee Vargas was not helpful. In L.R. Willson, the court reversed the OSHA Commission's finding of an OSHA violation but it was unclear whether the court directly addressed whether there is a distinction between a supervisor acting alone to violate OSHA and a supervisor violating OSHA while supervising a subordinate who is also violating OSHA. (134 F.3d 1235 (4th Cir. 1998).)

Practical Implications

The Eleventh Circuit's decision in Quinlan holds that a supervisor's knowledge of a subordinate employee's OSHA violation is imputed to an employer if the supervisor takes part in the violation along with the subordinate employee. The court refused to apply an exception recognized in ComTran in which the supervisor engaged in the violation by himself. Employers should:

Implement adequate safety programs applicable to both supervisors and subordinates.
Provide supervisors with safety training to help avoid or reduce situations in which a supervisor might be inclined to join subordinates in violating safety rules.

Employer Knows of OSHA Violations From Supervisor's Participation in Misconduct: Eleventh Circuit | Practical Law