By James L. Curtis and Craig B. Simonsen

In order to prove an OSHA violation the Secretary of Labor must show that the employer had “knowledge” of the violation. Often that is established through supervisors because a supervisor’s knowledge can be imputed to the company.

However, what do you do when the supervisor is the one engaged in the wrongful conduct? The Eleventh Circuit Court of Appeals recently answered this question. ComTran Group, Inc. v. DOL, No. 12-10275 (11th Cir., 7/24/13).

In ComTran, the Occupational Safety and Health Review Commission (Commission) held that ComTran violated OSHA standards, under 29 U.S.C. §§ 651 et seq., when “one of its supervisors was caught digging in a six-feet deep trench with an unprotected five-feet high ‘spoil pile’ at the edge of the excavation.”  According to the Secretary, “knowledge” of the violation was imputed to the employer by virtue of the fact that it was a supervisor who was engaged in the wrongful conduct.

The Court was asked whether it is appropriate to impute a supervisor’s knowledge of his own violative conduct to his employer, when so doing will relieve the Secretary of Labor of the burden to prove the “knowledge” element of a prima facie case? The Court found that answer to that question is no — that would not be appropriate.

In a footnote, the Court stated that:

“We say that a supervisor’s knowledge is ‘generally imputed to the employer’ because that is the outcome in the ordinary case. The ‘ordinary case,’ however, is where the supervisor knew or should have known that subordinate employees were engaged in misconduct, and not, as here, where the supervisor is the actual malfeasant who acts contrary to the law”.

Citing W.G. Yates & Sons Constr. Co. v. OSHRC, 459 F.3d 604 (5th Cir. 2006).

Relying on the Fourth Circuit opinion, in Ocean Electric Corp. v. Secretary of Labor, 594 F.2d 396 (4th Cir. 1979), the Court found that “[i]f a violation by an employee is reasonably foreseeable, the company may be held responsible. But, if the employee’s act is an isolated incident of unforeseeable or idiosyncratic behavior, then common sense and the purposes behind the Act require that a citation be set aside.” Id. at 401.

Our conclusion on this topic is that employers should look closely at any OSHA citations that are received, and consider the facts at issue from all angles. Be careful not to automatically accept liability just because a supervisor was involved in the violation.