Supervisor Misconduct by Itself is Insufficient to Impose Employer Liability Under OSHA
On July 24, 2013, the Eleventh Circuit Court of Appeals overturned a district court and issued an important decision affecting employer liability under the Occupational Safety and Health Act of 1970 (“OSH Act”) in a case involving supervisor misconduct, Comtran Group, Inc. v. U.S. Department of Labor, 24 Fla. L. Weekly Fed. C468a. The case on appeal before the Eleventh Circuit involved a case in which the Department of Labor (“DOL”) contended that Comtran should be liable for its supervisor’s misconduct because an employer is liable for the acts of its supervisors. Therefore, knowledge of the violation should have been imputed to Comtran. The Eleventh Circuit disagreed with the district court and found that the DOL failed to show that the employer knew or should have known that the OSH Act was being violated.
To establish employer liability for OSH Act violations, the DOL must show all of the following:
That the OSH Act applied to the employer’s business;
That the OSH Act was violated;
That an employee was exposed to the hazard that was created by the violation of the OSH Act; and
The employer knowingly disregarded the requirements under OSH Act or an OSH regulation or standard.
In Comtran, the DOL established that prongs one through three of the four-prong test had been met, but the Eleventh Circuit found that the DOL failed to prove the fourth prong.
While the DOL can meet its burden under the fourth prong by demonstrating that an employer’s safety program is woefully deficient and does not comply with the OSH Act, supervisory misconduct alone is insufficient. If the DOL meets its burden under the fourth prong, a court generally will impute knowledge of the violation to the employer and determine that the fourth prong has been satisfied.
Employers should periodically review their safety programs. When reviewing a safety program, its policies and procedures, be sure to take into consideration the work injury history of the organization and any changes in the law. An employer’s review should document any changes that are made to the safety policy and the reasons why changes were made. All safety policies or programs should require employees to report to their supervisors any unsafe conditions that they notice occurring in the workplace.
In addition to specific regulations, keep in mind that the OSH Act’s “general duty clause” imposes liability on all private sector employers to recognize hazards in the workplace, abate them and provide employees with a safe place to work.
A note to the reader: This article is intended to provide general information and is not intended to be a substitute for competent legal advice. Competent legal counsel should be consulted if you have questions regarding compliance with the law.
Questions regarding this article or past articles may be e-mailed to Christina Harris Schwinn at email@example.com. To view past articles written by Ms. Schwinn please visit the firm’s website at www.paveselaw.com. Ms. Schwinn is a partner and an experienced employment and real estate attorney with the Pavese Law Firm, 1833 Hendry Street, Fort Myers, FL 33901; Telephone: (239) 336-6228; Telecopier: (239) 332-2243.