MISBEHAVING SUPERVISORS–ARE EMPLOYERS LIABLE FOR THEIR CONDUCT UNDER OSHA?

Melanie Kilpatrick (kilpatrick@rwktlaw.com)

The United States Court of Appeals for the Eleventh Circuit recently issued a decision clarifying when a supervisor’s misconduct is sufficient to establish an employer’s knowledge of the misconduct for purposes of proving a violation of the Occupational Safety and Health Act (“OSHA”).

As part of his case, the Secretary of Labor must show that the employer “knowingly disregarded” OSHA’s requirements.  Ordinarily, if the Secretary can prove that a supervisor had knowledge of a subordinate employee’s violation, that knowledge is imputed to the employer.  However, when the supervisor himself is the one who engaged in the violative conduct, a majority of circuit courts have refused to impute the supervisor’s knowledge of his own misconduct to the employer.  The courts reason that if the Secretary were permitted to establish employer knowledge solely with proof of the supervisor’s misconduct, then the Secretary would not really have to establish knowledge at all.  The mere fact of the violation would satisfy the knowledge element.

In Quinlan v. Secretary of Labor (January 2016), the court was presented with the question of whether a supervisor’s knowledge of a subordinate employee’s violative conduct should be imputed to the employer when the supervisor is simultaneously involved in the same misconduct. In that case, the foreman and a subordinate were working on a concrete block wall and roof platform without fall protection.  The court found that the Secretary had established the foreman’s actual knowledge of the subordinate employee’s misconduct because the foreman was engaged in the misconduct with him.  The court recognized a distinction from a scenario based solely upon the supervisor’s knowledge of his own misconduct and decided to apply the general rule that the supervisor’s knowledge of the subordinate employee’s violation should be imputed to the employer.

Under Quinlan, although employer knowledge cannot be based solely upon proof of the supervisor’s misconduct, a supervisor’s  knowledge of misconduct can be imputed to the employer when the supervisor sees the violation and pitches in to work beside the subordinate.

©RAJKOVICH, WILLIAMS, KILPATRICK & TRUE 2016

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