If one of your company's supervisors knowingly ignores a safety rule, can OSHA hold the company liable?
OSHA has long argued "yes" and has moved against employers on the premise that if the supervisor knows he's violating the rules, then the company also knows.
This issue is important because OSHA doesn't require employers to protect employees against all risks, only those that are preventable and foreseeable. So, in the case of serious violations, OSHA law imposes liability only in cases in which the employer had knowledge of (or should have had knowledge of) a violation.
OSHA's interpretation of that rule is tantamount to making employers strictly liable anytime a supervisor chooses to overlook a safety rule, even if the employer had no practical way of knowing what was happening on the shop floor or work site.
Fortunately for employers, the 5th Circuit court has ruled that employers are not automatically liable when supervisors knowingly overlook safety rules. Employers are liable only if it was "foreseeable" that the supervisor would not follow the safety rules.
Case in point: Martin Olvera worked as a crew foreman for W.G. Yates & Sons on a construction site. Both company policy and OSHA rules require employees to wear protective gear while working on sloped sites.
OSHA caught Olvera without that protective gear while he was working on a sloped site. OSHA fined the company $5,000 on the premise that, because Olvera was a supervisor and knew the rules, his knowledge passed to the company and made it responsible. The company appealed.
Everyone agreed Olvera was a supervisor and knew the rules, but he chose to ignore them. But the 5th Circuit ruled that it was OSHA's job to prove the company knew or should have known that Olvera violated company policy.
It also said that employers that have strong safety programs, train employees on safety, and discipline those who don't follow the rules usually won't be liable for violations of those rules, because the violations aren't foreseeable. (W.G. Yates & Sons Construction Company Inc. v. OSHA, No. 05-60216, 5th Cir., 2006)
Final tip: Even better for employers, the court in this case put the burden on OSHA to prove that a supervisor's safety violation was "foreseeable."
That means companies with good safety programs, good training and robust disciplinary systems for safety violators are unlikely to find themselves responsible for rogue supervisors who ignore safety.
That's because it simply isn't "foreseeable" that supervisors would ignore the rules and risk discipline when they know that the company takes safety seriously.
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