Going Rogue? OSHA Violation Defense Defused Where Supervisor and Subordinate Participate
If a supervisor engages in OSHA-violating conduct alongside a subordinate, is the company liable? The Eleventh Circuit recently affirmed an Occupational Safety and Health Review Commission (OSHRC) decision answering that question in the affirmative. The decision will limit an employer’s ability to use a “rogue supervisor” defense to OSHA claims.
In Quinlan v. Sec. Dept. of Labor, the Eleventh Circuit reviewed an OSHRC decision affirming a violation involving two employees—one a supervisor—that carried with it an $11,400 fine. The company appealed.
In order to affirm a citation, OSHA must show, among other things, that the employer had knowledge of the violation. It is not enough to show that a violation occurred unbeknownst to the employer. The Commission can establish the requisite knowledge in one of two ways: (1) by showing that the supervisor had actual or constructive knowledge of the violation (which is imputed to the employer) or (2) by showing the employer’s failure to implement an adequate safety program. The well-recognized general rule is that a supervisor’s knowledge of a violation is imputed to the company to allow the Commission to satisfy its burden.
A previous Eleventh Circuit decision provided an exception to that general rule when the supervisor was the sole participant in the safety violation. The ComTran Group, Inc. v. United States Dept. of Labor court reasoned that it was “fundamentally unfair” to impute knowledge to the company based merely on the supervisor’s knowledge of his own violative conduct and that such a circumstance warranted an exception to the general principle. Accordingly, where only the supervisor’s conduct creates the violation, the Commission needs to show company knowledge by some additional means—not just by the fact that a supervisor was the bad actor. In a sense, where the rogue supervisor is the one engaging in the violation the company loses its “eyes and ears” to prevent safety violations of its employees.
The Quinlan case presented a slightly different scenario—the supervisor and subordinate were both engaging in the safety violation. In Quinlan, the company was cited because two employees—one a supervisor—were working on 15-foot high block without fall protection and for failing to secure a ladder. The employer attempted to leverage the ComTran decision to reverse the OSHA citation, arguing that if the supervisor is engaged in the same unsafe conduct with the subordinate the employer loses its “eyes and ears” and the supervisor’s knowledge should not be imputed to the employer. The Eleventh Circuit did not buy it, finding that when a subordinate is engaged in the violative conduct and a supervisor is aware of the subordinate’s violation, the company could not invoke the narrow ComTran exception. The Court reasoned that when the supervisor knows there is a violation, but disregards the safety rule—even if simultaneously engaging in the same violation—the situation is more akin to the general rule and that a supervisor’s knowledge of a subordinate’s violation should be imputed to the employer. ComTran, by contrast, provided the limited exception so as not to relieve the Commission from having to establish the requisite knowledge solely by mere fact that it was a supervisor who was the bad actor.
The takeaway for employers is that in situations where a safety regulation is being violated by both a supervisor and subordinate, companies will not be able to shield themselves from liability by claiming that it was just a rogue supervisor whose actions should not be imputed to the employer. Employers should re-emphasize to supervisors and managers that (1) they should lead by example and not be violating safety regulations (and not encourage or join in the violations with their subordinates) and (2) that if they see safety violations occurring they should promptly correct the behavior and not condone it as the supervisor’s knowledge of the violation will be imputed to the employer.