By James L. Curtis and Anne D. Harris

The Occupational Safety and Health Review Commission recently held that an employer could be liable for safety violations leading to an employee fatality where the employer failed to make proper evidentiary objections at the hearing.  Secretary of Labor v. Monroe Drywall Construction Inc., OSHRC Docket No. 12-0379 (April 19, 2013)

Monroe Drywall Construction Inc. (Monroe) was subcontracted by another company to perform drywall work at a retail store remodeling project.  One of the drywall workers was electrocuted when he contacted exposed wiring while clearing an area to place drywall.  Monroe argued that the drywall workers were not its employees.

The Secretary offered testimony from the OSHA Compliance Officer that included hearsay statements made by two drywall workers that they were hired by Monroe.  Monroe, defending itself pro se, failed to object to this testimony.  Nonetheless, the Administrative Law Judge (ALJ) ruled the evidence inadmissible hearsay.

The Commission reversed and remanded the ALJ’s decision.  Although the Commission noted an apparent lack of awareness by the employer that she could make such an objection, it stated that “when there is no objection, relevant out-of-court statements are admissible and entitled to their natural probative weight.”  In light of OSHA’s litigation tactics, employers should be cognizant of the potential ramifications of self-representation and seek counsel to protect against OSHA’s aggressive strategies.