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OSHA Loses Bid to Argue Supervisory Liability

By Keith L. Pryatel

In a decision that is seen by many as fundamentally altering the legal landscape surrounding the federal Occupational Safety and Health Administration (“OSHA”), a federal appeals court recently ruled that OSHA cannot demonstrate the requisite “knowledge” of a violative safety condition simply by pointing to a supervisor’s knowledge. Yates & Sons Co. v. Occupational Safety and Health Review Commission. The decision is viewed as a significant setback for OSHA, which traditionally relies upon nothing more than a foreman’s “knowledge” of an alleged violative condition in order to hold the employer responsible for a health or safety citation.

In Yates & Sons, a construction crew foreman was observed by two OSHA officers working on a 65-foot sloped embankment without wearing any fall protective gear. There was no question in the case that the failure of the foreman to don the gear violated applicable OSHA safety standards and rules. Noting that Congress never intended to impose “strict liability” for alleged OSHA violations, the U.S. Court of Appeals for the Fifth Circuit held that OSHA had not carried its burden of proving that Yates & Sons Construction Company possessed the requisite “knowledge” in order to establish an OSHA violation. The Court expressly rejected OSHA’s theory that because a foreman (i.e., supervisory employee) knew of the violative condition, that that “knowledge” should necessarily be imputed to his employer. The Court stated that “imputing to the employer the knowledge of a supervisor of his own violative condition without any further inquiry would amount to the imposition of a strict liability standard, which the Act neither authorized nor intends.”

The Fifth Circuit therefore held 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.” OSHA has vowed to appeal this adverse federal ruling, and also has asked that the full judicial panel of the Fifth Circuit review the decision that was issued by a three-judge panel. If the decision is left to stand, the need for employers to train their workers in all safety aspects, and to have in place comprehensive health and safety policies and procedures becomes all the more important because if in place, OSHA cannot properly issue safety citations and fines where a supervisor or foreman acts in contravention of his or her employer’s written policies.

ABOUT THE AUTHOR

Keith L. Pryatel, Esq., is a shareholder with the Akron, Ohio, law firm of Kastner Westman & Wilkins, LLC (www.kwwlaborlaw.com). He concentrates his practice on equal employment opportunity litigation, occupational safety and health defense, labor arbitration, public sector matters before the State Employment Relations Board, and appellate practice before the state and federal courts of appeals. Mr. Pryatel can be reached at 330-867-9998 or kpryatel@kwwlaborlaw.com.

Reprinted with permission from the Fall 2006 issue of kwwlaborlaw.communicator, published by Kastner Westman & Wilkins LLC.

riskVue | The webzine for risk management professionals
March 2007