You know it is the height of summer when we start posting about ditch digging and OSHA violations. Although not the sexiest of topics, the Eleventh Circuit Court of Appeals, which has jurisdiction over Florida, recently decided an issue for the first time: Can a supervisor’s knowledge of his own violation of an OSHA safety standard be imputed to his employer, relieving the Department of Labor of having to prove the employer’s knowledge. The case is Comtran Group, Inc. v. Department of Labor.
Two of Comtran’s employees – a supervisor and a helper – were working on a project that involved the digging of a four foot deep trench. The supervisor was responsible for digging the trench. He was unable to find the utilities conduit in the ditch and kept digging. The supervisor got lost in his work and ended up digging a six foot deep trench. Without realizing it, the supervisor had a five foot pile of dirt at the edge of the trench. The controlling OSHA standards required the dirt pile to be at least two feet from the edge of the trench and required some support system to protect the employee from a cave-in of the five foot high dirt pile. (The supervisor had taken down the fabric fence that had been put up between the dirt pile and the trench.) As luck would have it, an OSHA inspector stopped by the worksite, and Comtran ultimately received two violations.
To prove a violation under the Occupational Safety and Health Act, the DOL must prove, among other things, that the employer knowingly disregarded OSHA’s requirements. The DOL can prove knowledge in two ways: (1) a supervisor had actual or constructive knowledge of a violation and that knowledge is imputed to the employer or (2) the employer failed to implement an adequate safety program. In Comtran, the DOL imputed knowledge to the company because it was the supervisor’s violation and he obviously knew of the violation; the supervisor’s knowledge was imputed to Comtran. The Eleventh Circuit found that it is inappropriate to impute the supervisor’s knowledge to the employer in cases where it is the supervisor’s own wrongdoing that is in question. In such situations, the DOL must prove the employer’s knowledge of the violation through the employer’s actual knowledge or by constructive knowledge based on the fact that the employer could foresee the unsafe conduct of the supervisor by presenting evidence of lax safety standards. Without such proof, the supervisor’s misconduct will be viewed as an isolated incident of unforeseeable or idiosyncratic behavior which is insufficient, alone, to impose liability on the employer.
The Eleventh Circuit made it clear that an employer will still be charged with a supervisor’s knowledge when the supervisor has actual or constructive knowledge that a subordinate is violating a safety standard. Where it is the supervisor’s own misconduct at issue, the DOL must prove knowledge and cannot rely solely on the fact that it was a supervisor who engaged in the misconduct.
