When Knowing Is No Sure Thing: 11th Circuit Requires OSHA To Dig Deeper Before Imputing Supervisor's Misconduct To Employer

Howard Sokol is a Partner in our New York office.

In a recent case of first impression, the U.S. Court of Appeals for the 11th Circuit reversed the Occupational Safety and Health Review Commission (OSHRC) and held that an employer is not automatically liable for the health and safety violations committed by one of its supervisors. On July 24, 2013, the 11th Circuit found in ComTran Group, Inc. v. U.S. Department of Labor that the Occupational Safety and Health Administration (OSHA) did not meet its affirmative burden against a utility contractor in citing the employer for alleged trench violations, because OSHA was not able to establish the requisite employer knowledge based solely on the misconduct of one of its supervisors.

In a twist on the well-established rule that knowledge may be imputed to the employer when one or more of its supervisors has knowledge of an employee's violative conduct, the court explained that such reasoning should not be extended when the misconduct, unforeseeable to the employer, is carried out by a supervisor, as was the case in ComTran. In such cases, OSHA must demonstrate the presence of additional facts in order to find that the employer had (or should have had) "knowledge" of the supervisor's misconduct and, therefore, should be liable under the Occupational Safety and Health Act (Act).

Facts and OSHA's Citation

The facts in ComTran show that as part of the company's contract with the local government in Atlanta, certain utilities were being relocated. The foreman dug and was then working in a six-foot hole surrounded by a resulting unprotected collapsible wall of dirt and other materials more than 10 feet high. OSHA issued a citation to ComTran for two serious violations of the Act, with fines and penalties totaling nearly $10,000. The first alleged a violation of the excavation standard, which requires, among other things, that the material taken from the ground be removed and kept sufficiently clear of the opening of the trench (29 C.F.R. §1926.651(j)(2)). The second alleged a violation of the protective systems standard in such situations for the company's failure to provide any number of measures to safeguard against a collapse and then cave-in of the excavated material (29 C.F.R. §1926.652(a)(1)).

OSHA's Burden in Finding a Violation

To sustain a citation against an employer, the Secretary of Labor has the affirmative obligation of demonstrating the following four requirements (the "Test"): (a) the...