To establish that an OSHA regulation has been violated, the Secretary must prove that: (1) the regulation applied; (2) it was violated; (3) an employee was exposed to the hazard that was created; and (4) the employer knowingly disregarded the OSH Act’s requirements.  The general rule has been that the knowledge of a supervisor is imputed to the employer – so if the supervisor knew or should have known of the violation, his knowledge is imputed to the employer and the Secretary can use this fact to show that the employer had knowledge of the violation.

The Court of Appeals for the Eleventh Circuit in Comtran Group, Inc. v. U.S. Dept. of Labor, 722 F.3d 1304 (11th Cir. 2013) held that there is an exception to the general rule: when a supervisor is acting independently and knows that he himself has violated an OSHA regulation, his knowledge of his own violation is not necessarily imputed to his employer.  The Comtran court found that in such instances the Secretary must prove something more than the supervisor’s own knowledge of his own wrongful conduct to establish the employer knowledge element of a violation.  Specifically, the Secretary must show that the employer had reason to foresee the unsafe conduct of the supervisor.

On January 8, 2016, in Quinlan v. Secretary, U.S. Department of Labor, No. 14-12347 (11th Cir. January 8, 2016), the Court of Appeals for the Eleventh Circuit faced a slightly different issue – is supervisor knowledge imputed to the employer when a supervisor acts in concert with a subordinate employee and both supervisor and employee violate an OSHA standard?  The Eleventh Circuit refused to apply the reasoning of Comtran and held that it is — 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.

The takeaway for employers is that the supervisory misconduct defense applies only when a supervisor violates an OSHA standard independently, and even then, it is not always a successful defense.  Accordingly, employers should take steps to ensure that safety programs are applied effectively to supervisors and subordinate employees such as:

• Provide supervisors and subordinate employees with training on every safety standard and company policy related to their work. Ensure all employees comprehend the training to effectively reduce the possibility of a violation taking place.

• Remind supervisors to lead by example by following all safety rules and refusing to cut any corners.

• Remind supervisors that if they observe a subordinate employee committing a safety violation, they must put an end to it immediately, and where appropriate, initiate disciplinary action. Otherwise, that supervisor’s knowledge will be imputed to the employer.

• Remind supervisors that they too are subject to disciplinary action should they fail to follow safety rules and company policies.