Many accidents, safety incidents, and OSHA citations in the construction industry are the result of misconduct or poor performance by a foreman or supervisor – failing to supervise employees for compliance with safety rules, failure to correct violations of safety rules, or failure to follow safety rules himself. OSHA uses admissions from foremen and supervisors to establish
"employer knowledge," that the employer knew or should have known of the alleged violation, a crucial element to any OSHA citation.

Under most circumstances, this element can be satisfied when a supervisor, manager, or foreman, who are agents of the employer, witnesses an employee exposed to a hazard and does nothing about it. But what happens when the supervisor, manager, or foreman is the individual violating OSHA's regulations (and the company's rules)? In the past, OSHA has tried to use the supervisor's bad act to impute liability on the employer, arguing that the supervisor's own knowledge of his bad act is sufficient to impute or infer knowledge of that bad deed onto the employer. But the existence of a rogue supervisor may create an affirmative defense that employers can argue and informal conferences and prove in litigation.

OSHA Burden to Prove Employer Liability

In order to prove a violation of an OSHA safety or health regulation, OSHA must show by a preponderance of evidence the following elements:

  1. the regulation or a generally recognized industry safety practice or the employer's own safety policy applies to the safety or health hazard (e.g., fall, confined space, machine guarding, etc.) which OSHA observed at the worksite;
  2. the requirements of the regulation or industry practice or employer policy were not met at the worksite (e.g., there was no fall protection, no confined space program, no machine guards in place, etc.);
  3. one or more of the employer's employees were actually exposed to the hazardous condition so that the employee could have been injured by the hazard. NOTE: On multi-employer worksites, an employer may be liable for exposure of another employer's employee to the hazard if certain conditions are met; and
  4. the employer knew, or with the exercise of reasonable diligence, should have known of the violative conditions.

Employers are not strictly liable under the Act or a particular OSHA standard simply because a violative condition exists or an accident has occurred.

Because many employers are legal entities, such as corporations, and are not individuals, it may be difficult to determine what a corporation "knows." Therefore, the case law involving OSHA citations has established a general rule that the actual or constructive knowledge of an employer's agent, such as a foreman or supervisor, can be imputed to the employer. In other words, if OSHA can prove that a supervisor or foreman knew or, with the exercise of reasonable diligence, should have known that a violative condition exists, OSHA may be able to satisfy the employer knowledge element of its burden of proof in a contested case.

Case Law Establishing and Limited the "Rogue Supervisor" Defense

To satisfy its burden of establishing "employer knowledge," OSHA often tries to use a supervisor's own bad deeds to impute direct knowledge to the employer. In essence, OSHA's view is that because the supervisor engaged in the dangerous act, his knowledge of that dangerous act is sufficient to establish employer knowledge. That position of "strict liability" for supervisor acts has been addressed by multiple federal courts of appeals. Under the current case law, employers may be able to argue that a "lone wolf" or "rogue supervisor" engaged in unforeseeable misconduct that cannot legally be imputed to the employer.

In ComTran Group, Inc. v. DOL, 2012 U.S. App. LEXIS 15023 (11th Cir. July 24, 2013), the Eleventh Circuit addressed the issue of whether it is appropriate to impute a supervisor's knowledge of his own violative conduct to his employer under the Act, thereby relieving the Secretary of his burden to prove the "employer knowledge" element of his prima facie case. The Eleventh Circuit found against OSHA, holding that if this approach were to apply, the Secretary would only have to meet three of the four evidentiary elements of the prima facie case, and would not have to prove the "employer knowledge" element.

Analyzing prior Federal appellate court decisions, the Eleventh Circuit 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. *8, n. 2. Further, seeming to support the unavoidable supervisory misconduct defense, the Eleventh Circuit 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 purpose behind the Act require that a citation by set aside." Id. at *20. Finally, the Court stated that a supervisor's "rogue conduct" cannot be imputed to the employer merely because the supervisor is the violator. Id. At *25.

As a result, the Eleventh Circuit remanded the matter back to the Review Commission to require the Secretary to prove the "employer knowledge" element and permit the employer to establish its defenses to the citation. The Fifth Circuit has issued case law agreeing with the "supervisory misconduct" principle, holding that "a supervisor's knowledge of his own malfeasance is not imputable to the employer where the employer's safety policy, training, and
discipline are sufficient to make the supervisor's conduct in violation of the policy unforeseeable." W.G. Yates & Sons Constr. Co., Inc., 459 F.3d 604, 608-609 (5th Cir. 2006).

Unfortunately, the Eleventh Circuit has walked back the supervisory misconduct defense when the supervisor himself or herself is simultaneously involved in violative conduct with a subordinate employee, and imputes employer knowledge of the hourly employee's misconduct. Quinlan v. Secretary, U.S. Department of Labor, No. 14-12347 (11th Cir. January 8, 2016). In Quinlan, the Eleventh Circuit, that carved out the exception for the "lone wolf" supervisor, nonetheless held a supervisor's knowledge of a subordinate employee's OSHA violation is imputed to an employer when a supervisor working for the employer is aware of the subordinate employee's OSHA violation and the supervisor is simultaneously involved in the violation.

How to Raise and Prove the Rogue Supervisor Defense

Under the typical "unavoidable employee misconduct" defense that applies to hourly employees, the employer must prove the following elements:

  1. employer created work rule to prevent violation at issue;
  2. adequately communicated that rule to its employees;
  3. took all reasonable steps to discovery noncompliance; and
  4. enforced the rule against employees when violations were discovered.

Supervisory misconduct, or the "rogue supervisor," is proved through the same elements. The employer had a safety rule in place, trained the supervisor on the safety rule, supervised for violations of the policy, and enforced the safety rule when it found violations. Because supervisors are expected to follow and enforce an employer's safety rules, the "unavoidable supervisory misconduct" defense is often more difficult to establish. Specifically, the employer often must present evidence to show that it monitored and audited the supervisor for compliance with the safety rule, the supervisor has no prior history of engaging in any safety violations or unsafe behavior, and the employer could not have anticipated that the supervisor would have engaged in the unsafe behavior.

Because the Eleventh Circuit's decision rejected OSHA's argument that an employer is strictly liable whenever a supervisor engages in unsafe behavior, an employer now has a more viable argument that it should not be held liable when a trusted supervisor engages in "unforeseeable or idiosyncratic behavior" or "rogue conduct." Since the burden of proof for this affirmative defense will remain on the employer to show that the supervisor's bad deed was in fact "unforeseeable or idiosyncratic," it will be necessary for the employer to conduct audits or other evaluations of supervisor performance to establish the supervisor was compliant in prior situations.

Previoulsy published in NATE Safety.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.