When an employer receives a citation for violation of Occupational Safety and Health Administration safety regulations, it can assert an affirmative defense claiming that the employees were exposed to the hazard as a result of their misconduct and ignorance of the employer’s safety rules. Earlier this month in a 2-1 decision, the Fifth Circuit Court of Appeals rejected that kind of defense in the context of a supervisor putting employees in harm’s way.

In Angel Brothers Enterprises, Ltd. V. Walsh, a construction site supervisor ignored the company’s safety manager’s instructions to use a trench box to prevent cave-ins during an excavation project. After OSHA issued a $35,000 willful citation for trenching violations, the company claimed that it should not be held liable for its supervisor’s refusal to follow company policy and instructions.

The Fifth Circuit rejected this defense, concluding that supervisors act as the agents of their employers, making the company liable for their misconduct. Courts recognize a limited supervisory misconduct defense to OSHA citations, but this only applies in situations where the supervisor’s own misconduct results in the citation. In this case, the citation involved the employees under supervision working in an unprotected trench. The supervisor himself did not engage in unsafe work.

The court also concluded that the employer failed to demonstrate that the employees in the trench engaged in misconduct. The company had been cited for prior trenching violations and could not demonstrate a consistent pattern of enforcement of its safety rules. The dissenting judge believed that the company had met this burden of proof. This case demonstrates the legal risks that accompany supervisors who ignore company safety rules. Ordinarily, the employer will not avoid this liability even if it can show that the supervisor in question failed to follow its safety requirements.

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