A recent decision from the United States Court of Appeals for the Fifth Circuit held a Texas highway contractor liable for its supervisor’s involvement in a subordinate employee’s violation of workplace safety rules. See Angel Brothers Enterprises, Ltd. v. Walsh, No. 20-60849, 2021 WL 5627103 (5th Cir. Dec. 1, 2021).

Contractor Angel Brothers Enterprises, Ltd. (the “Contractor”) installed a concrete drainage pipe alongside a road in LaPorte, Texas. The Contractor had typically used a safety measure known as “benching” for the walls of the excavation, but on the final day of the project the excavations were too close to the street to use the benching method. The Contractor’s Safety Manager advised its foreman to have the crew use a different safety measure known as a trench box to guard against cave-ins for the excavation.

The next day, a Compliance Officer for the Occupational Safety and Health Administration (“OSHA”) issued the Contractor a citation during its inspection because the Contractor’s foreman directed a crew member to work in the excavation without the trench box or any other safety measure.

In a 2-1 decision, the Fifth Circuit upheld the decision of the Occupational Safety and Health Review Commission (the “Commission”) by affirming the citation finding the Contractor’s violation to be willful, and assessing a $35,000 penalty. The Fifth Circuit ruled that the knowledge and willful actions of the foreman were imputed to the Contractor based on general agency principles and vicarious liability.

The Fifth Circuit declined to extend the exception it outlined in W.G. Yates & Sons Const. Co. v. Occupational Safety & Health Review Comm'n, 459 F.3d 604 (5th Cir. 2006), which states that when a supervisor’s own conduct is the OSHA violation, the supervisor’s knowledge should be imputed to its employer only if the supervisor’s misconduct was foreseeable. The exception was inapplicable here because “authorizing another’s violation is not the same as committing the violation oneself,” meaning that that the exception only applies if the supervisor committed the violation, as opposed to allowing another to commit the violation, as was the case here.

This case illustrates both the expansive nature of vicarious liability and the importance of effective enforcement of safety rules.